One of the most significant Supreme Court decisions was the case of New York Times Co. v. United States (1971), now also known as the Pentagon Papers Case. This case, which concerned whether it was legal for The New York Times to publish the then-classified Pentagon Papers, saw the Supreme Court defend the First Amendment-guaranteed right of a free press against prior restraint by the government.
The year was 1971, and the U.S., despite not having declared war, has been engaged in a war in Vietnam for the past six years. By now, 58,000 American servicemen had died, and there was widespread discontent from much of the American people. One famous protest in Chicago in 1968 against the Vietnam War, led to the now-famous trial of the Chicago Seven, immortalized in the recent Netflix movie The Trial of the Chicago Seven (2020).
Back in 1967, then-Secretary of Defense Robert McNamara had commissioned a secret study on U.S. involvement in Vietnam. The papers were marked as “classified,” and revealed that the U.S. government had secretly expanded the scope of the war by bombing Cambodia and Laos, as well as conducted coastal raids on communist-controlled North Vietnam. None of these were reported to the press. This set of papers, titled the Pentagon Papers after they were leaked to the press, demonstrated that the government, especially under the Lyndon B. Johnson administration, had lied to the public and Congress about the war. (The Pentagon Papers were eventually officially declassified in 2011 and released to the public in full.)
In 1971, a man named Daniel Ellsberg, who helped in part to produce the Pentagon Papers, leaked 43 volumes out of the combined 47-volume, 7,000-page report to Neil Sheehan, a reporter of The New York Times, in March 1971. The full story of how Sheehan managed to obtain the papers is intriguing and was only revealed by The Times after Sheehan’s death last month.
After working on the papers for many months, The New York Times finally started publishing some of the Pentagon Papers in a Sunday edition of the paper on June 13, 1971. The first article was titled “Vietnam Archive: Pentagon Study Traces Three Decades of Growing U.S. Involvement,” and the report was later called the “Pentagon Papers” by the media after that.
Although an outside lawyer working for The Times had advised against publishing the Pentagon Papers, an in-house counsel suggested that the press had the right to publish information important to people’s understanding of their government’s policy under the First Amendment, which protects the freedoms of speech, press, religion, and petition against the government. Therefore, the paper eventually chose to publish the highly-classified report to the public.
Just two days after the first set of articles on the Pentagon Papers were leaked to the public, a U.S. District Court judge had issued a restraining order against The Times ordering it to cease further publication of the Pentagon Papers, at the request of the Nixon administration. The U.S. government said the publication would cause “irreparable injury to the defense interests of the United States” and wanted both The New York Times and The Washington Post, which, by now, had also begun publishing articles about the Pentagon Papers, to immediately stop further publication of the papers.
The U.S. claimed that by publishing these papers, The Times was committing a crime because Section 793 of the Espionage Act made it illegal to “communicate, deliver, or transmit” any information “relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
Although a judge for the U.S. District Court for the Southern District of New York had allowed a restraining order to be issued against The Times, the U.S. District Court for the District of Columbia refused to accept the government’s request to stop The Washington Post from publishing the Pentagon Papers, as did the U.S. Court of Appeals for the District of Columbia Circuit. Due to this inconsistency, the Supreme Court decided to step in to review the case.
Oral arguments were heard by the Supreme Court on two separate days—June 25 and 26, 1971—by the two parties involved, the executive branch along with the Department of Justice and The New York Times along with The Washington Post.
The real issue for the Supreme Court here was not how the newspapers were able to obtain the documents (it was already being investigated), but rather, whether there was sufficient justification for prior restraint, a form of censorship that allows the government to review and prevent the content of printed materials pre-publication, which would suspend the newspapers’ rights to the freedom of the press, a right guaranteed in the First Amendment.
Though the amendment explicitly states that laws cannot be made to abridge this freedom, the court had established some precedent for using prior restraint, such as the famous “clear and present danger” test established in Schenck v. United States back in 1917, which stated that any speech posing a “clear and present danger” could be punished and was not protected. A metaphor popularly used to explain this was “shouting fire in a crowded theater,” although whether or not this is actually illegal is disputed.
The court released their opinions on June 30 the same year. It was a 6-3 decision in favor of the newspapers, meaning that the publication of the Pentagon Papers was, in fact, protected by the First Amendment and could not be suspended. The court said that there was not enough justification from the Nixon administration that the publications would cause “grave and irreparable” danger.
However, since this was a ruling on whether the government had the justification to invoke prior restraint, this ruling did not declare the Espionage Act unconstitutional, nor did it mean that it was a free-for-all for the press to publish classified documents. This case was, and still is, though, considered a victory for the reading of the First Amendment.
In the majority opinion, Justice Hugo Black wrote, “To find that the President has ‘inherent power’ to halt the publication of news […] would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ […] The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security[…]. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.”
In other words, the justice wrote that prior restraint for the purpose of “national security” was too broad a reason and that the need to a free press acts as a check on the executive branch.
In his dissent, Chief Justice Warren Burger argued that “the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government,” and that the court lacked sufficient information to make an informed decision.
Daniel Ellsberg, the man who had leaked the Pentagon Papers to The Times, had turned himself in to federal authorities back in June to face charges pertaining to the Espionage Act, but all his charges were later cleared by a federal judge owing to gross government misconduct on May 11, 1973. If he was convicted, his maximum sentence could have been 115 years. Ellsberg is still alive today, at the age of 89.
New York Times Co. v. United States continues to remain a cornerstone case regarding freedom of the press and First Amendment rights, and it ensures that the U.S. government cannot censor publications unless there is a very, very compelling reason to do so.
If you enjoyed this post, check out the SCOTUS Coverage page, which lists all posts pertaining to the Supreme Court on Newshacker Blog. More posts like this one will be coming very soon!