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In the past, there has always been conflict between the free press and the government. This conflict was very evident in the Pentagon Papers case, also known as New York Times Co. v. United States. Historically, the Supreme Court has disagreed on the limitations that can be placed on the First Amendment. The Supreme Court faced these issues in the case of The New York Times. The newspaper obtained a copy of a Defense Department report that explained government deception in the Vietnam War.
The Pentagon Papers emerged when the American people disagreed on the United States involvement in the war. Under the First Amendment, The New York Times argued for the right to publicize the Pentagon Papers.
In 1971, a Supreme Court ruling allowed The New York Times and The Washington Post to publish classified Pentagon Papers without the risk of government censure. In the mid-1960s, the public and a few government officials became critical of America’s involvement in the Vietnam War. In 1967, Robert S. McNamara, Secretary of Defense, demanded evaluation of the involvement of the United States in the war. A team of thirty-six people took more than a year to write a seven thousand-page report called “History of U.S. Decision-Making Process on Vietnam Policy” (Cengage, par.12). This top-secret report was also known as the Pentagon Papers. Daniel Ellsberg, a former Marine Corps Company Commander and economist with the Defense Department, helped prepare the report. At first he was in agreement with America’s involvement in Vietnam.
After a two-year volunteer tour of Vietnam, and witnessing innocent civilians getting killed, Ellsberg changed his views.
He decided that the United States needed to be informed that continuing the war would lead to excessive casualties, and the outcome would most likely not be victorious. In 1969, Ellsberg copied sections of the report and released them to the press. He gave the report to The New York Times in March 1971. On June 13, 1971, The New York Times printed the first article about the Pentagon Papers, and The Washington Post printed articles on June 18th. The release of the papers was politically embarrassing to the Nixon Administration. John Mitchell, Nixon’s attorney general, promptly sent a telegram to The New York Times to stop all publications. The New York Times refused, and the government sued them.
The government did not want anyone to be informed of the Pentagon Papers because they contained information that could jeopardize National Security. Also, they did not want the public to be aware of the United State’s participation in Vietnam. The government filed lawsuits to stop The New York Times and The Washington Post from printing the reports. The courts stopped the newspapers until the government could declare its case. The government believed that the Constitution provided the power to protect National Security by stopping the newspapers from printing the report. The newspapers argued that the First Admendment was being violated. The Pentagon Papers case addressed the issue of prior restraint on the press under the Amendment. “A prior restraint is the imposition of a restraint on the publication of information before the information is published” (Farlex, par.2). On June 15, 1971, the trial started in Manhattan in a federal courthouse.
President Nixon appointed Judge Gurfein to the district court. The administration acquired a restraining order on the publication the same day. On June 18, the judge denied a standing order but blocked further publication. It was the first time in the history of our nation that a court prevented the publication of an article on national security. The New York Times agreed on the order. In an earlier case, the Supreme Court made a limited exception on the topic of prior restraint. In the case of Near v. Minnesota from 1931, Chief Justice Hughes had stated that ruling against prior restraint would not be applied in certain cases. “No one would question, Hughes declared, that a government might prevent actual obstruction to its recruiting service or the publication of the sailing days of transports or the number and location of troops” (Shapiro, par. 3).
It was established that prior restraints are suspect under the First Amendment. Gurfein changed his decision after a few hours of hearings. He removed the restraining order the next day, saying “The First Amendment prohibits censorship by the government in all but the most exceptional cases.” (Liptak, par.15). In return, the government appealed his decision. During this whole process, The Washington Post started publishing the article and was also sued. Appeals courts in Washington allowed publication and New York prohibited it. The lawyers for The New York Times contacted Solicitor General Erwin Griswold to appeal to the Supreme Court. They provided a twenty-page petition on June 24. It explained why the Supreme Court needed to review the case. The petition stated five arguments why the case needed an urgent review. The third argument was the most convincing, because it questioned the case’s constitutional validity.
On June 25, the Supreme Court decided to hear the case to help solve the conflict. The chief lawyer for The New York Times was Alexander M. Bikel, and the chief lawyer for the United States was Erin N. Griswold. The Supreme Court justices included Hugo Lafayette Black, Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, William J. Brennan Jr., William O. Douglas, John Marshall Harlan II, and Warren E. Burger. The case rushed through the courts because of the pubic attention it was receiving and its national importance. The lawyers only had approximately twenty hours to prepare their oral arguments and briefs. On June 30, 1971, only five days after the case started, the Supreme Court issued its decision.
The Supreme Court ended up with a 6-3 vote against a prior restraint affecting the publication of the Pentagon Papers. Justices Burger, Blackmun, and Harlan objected and Justices Black, Brennan, Douglas, Marshall, Stewart, and White agreed. The per curiam of the verdict as seen on a website document, states: Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. Therefore, the government carried a heavy burden of showing justification for the imposition of such a restraint.
The District Court for the Southern District of New York, in The New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in The Washington Post case, held that the Government had not met that burden. We agree. (Bruce, par.2) The brief opinion reflected the wide range of views of the nine judges. The Court could not come to agreement on a standard for determining how the government should handle prior restraint in subsequent cases. One of the judges that supported the decision, Justice Hugo Black, said: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The government abolished the power to censor the press so that the press would remain forever free to censure the government” (Liptak, par.18).
Justices Warren E. Burger, John Marshall Harlan II, and Harry A Blackmun, all agreed that the speedy delivery of the verdict and its outcome was dangerous. They all disagreed with the Court’s decision, and they wrote about their dissenting views. They believed that the case was handled too quickly for a proper ruling to be made. Justice Blackmun had a very serious opinion on the verdict.
He stated that printing the secrets from the Pentagon Papers could result in “the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, and the inability of our diplomats to negotiate” (Cengage, par.23). The major impact of the case was that the publishing of the Pentagon Papers expedited he withdrawal of American troops from Vietnam. “At the end of 1971 there were just 160,000 American troops in South Vietnam, compared to 335,000 at the beginning of the year” (Cengage, par.24). It also had an impact on Nixon’s presidency. His attempt to find the person responsible for the leak of the report, led to Watergate. Nixon resigned on August 9, 1974, which was the first and only time in United States history.
Justice was served in the verdict of the case, because it was considered a win for supporters of the Freedom of Press. However, justice was not served for Daniel Ellsberg, who faced criminal charges for stealing the Pentagon Papers. He was charged with theft of federal property and spying. He was taken to trial in a federal court in July 1972. The trial came to an end when Judge Byrne learned that the government illegally taped Ellsberg’s conversations and stole files from his psychologist. The Judge dismissed the case on My 11, 1973. “Ellsberg faulted himself for not acting sooner against the Vietnam War and sad that whistleblowers should not be afraid to reveal secrets in an effort to save lives, even if it means going to jail” (Liptak, par.22).
In 1971, a Supreme Court ruling allowed The New York Times and The Washington Post to publish classified Pentagon Papers without the risk of government censure. Numerous legal scholars will agree that the most important case in the history of our nation that dealt with the First Amendment was the Pentagon Papers. Also, for the first time in history, the government succeeded in stopping the press for a brief time during the appeals process of the case. The Supreme Court ruled that prior restraint on freedom of speech violated the First Amendment. The Pentagon Papers case continues to be a valuable model for support of freedom of the press under the First Amendment.
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