The Pentagon Papers and the First Amendment: A Research Analysis

On June 13th, 1971, the nation’s first glimpse into the top-secret report on America’s involvement in Indochina was printed in the New York Times’ Sunday Edition. Two days later, the Times received an order from a District Court judge on behalf of the Nixon administration, ordering them to cease publication of the documents that became known as the Pentagon Papers. But the Times and The Washington Post— who also received an injunction— pushed back, issuing an appeal. And less than three weeks later, the United States Supreme Court delivered a decision that shaped the history of press freedom around the world.

THE CASE

The landmark case of New York Times Co. v. United States, 403 U.S. 713 (1971)— or as it’s more widely known, the Pentagon Papers Case— began with a leak.

Former military analyst Daniel Ellsberg handed over 43 volumes of a top-secret report titled "History of U. S. Decision Making Process on Vietnam Policy” to New York Times reporter Neil Sheehan in March 1971. Ellsberg had been secretly photocopying the 7,000 page document since October 1969 and had since been searching for a willing publisher (Chokshi, 2017).

The Times sat on the documents for weeks, publishing their first article on June 13th, 1971. The article, headlined “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U. S. Involvement,” was emblazoned on the front page of the Times’ Sunday Edition (Sheehan, 1971). The Times published a second article the following day and, after declining to cooperate with attorney general John Mitchell’s request to cease publication of the documents, a district court-ordered injunction was imposed upon the New York Times at the request of President Richard Nixon’s administration on June 15th, 1971 (Dunlap, 2016). The following day, the Times announced that they would comply with the injunction, halting publication of the documents until that Friday, June 18th (Graham, 1971).

The Washington Post had been watching the series closely, and eagerly picked up where the Times had left off after the injunction. “With the Times silenced by the federal court in New York, we decided almost immediately that we would publish a story the next morning, Friday, June 18,” wrote Benjamin Bradlee, who served as editor of the Post at the time. By Friday afternoon, the Post too had been roped into the brewing legal battle against the administration (Naughton, 1971).

At the hearing, which was delayed until June 19th, District Judge Murray Gurfein rejected the Nixon Administration’s request for a permanent injunction against the Times; however Judge Irving R. Kaufman, of the United States Court of Appeals for the Second Circuit extended the restriction on the series, allowing for a three-judge panel to review Judge Gurfein’s ruling (Graham, 1971a).

After numerous delays, the Times made its intentions clear with a front-page declaration: “Times Series Is Delayed Again; Paper To Appeal To High Court.” The article, published June 24th, explained Times’ publisher Arthur Ochs Sulzberger’s intentions to “appeal to the United States Supreme Court as soon as possible” (Graham, 1971c). The stakes were raised higher still, as the Supreme Court’s final public session of the term before summer recess was scheduled for June 28th.

On June 25th, the United States Supreme Court under Chief Justice Warren Burger agreed to hear the case the following day, with four Justices— Hugo Black, William Douglas, William Brennan, Jr. and Thurgood Marshall— immediately dissenting in favor of freeing both newspapers to print without hearing arguments.

The Court mandated that, until a decision was made, the Times was permitted to publish according to the government’s guidelines; however, the Times opted to not resume the series on the Pentagon archive “because the matter was before the Court, and that printing an article whose content was dictated by Government officials would amount to submitting to censorship” (Graham, 1971d).

The Supreme Court heard two hours of arguments on behalf of the administration, the Times and the Post on June 26th, just 13 days after the Times broke the series.

THE DECISION

The question before the Supreme Court in New York Times Co. v. United States was one of constitutionality: they were tasked with determining whether the injunction imposed upon the Times by the Nixon administration violated the First Amendment right to freedom of the press.

After hearing arguments four days prior, the Supreme Court voted 6-3 in favor of the Times on June 30th, 1971, granting them the right to publish the Pentagon Papers. Though each of the nine Justices issued an individual written opinion, the per curiam opinion was brief and outlined the legal reasoning behind the decision:

Any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint… The United States government will be denied an injunction against the publication by newspapers of the contents of a classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy," where the government has not met its burden of showing justification for the imposition of a prior restraint of expression. (New York Times Co. v. United States)

Citing three precedents as guidelines for their decision, the Court determined that the Nixon administration carried “heavy burden of showing justification for the enforcement of such a [prior] restraint,” and it did not meet that burden (New York Times Co. v. United States).

When looked at from an objective standpoint, New York Times Co. v. United States made its way through the United States Judicial System remarkably fast. The legal process took 15 days, and was concluded 17 days after the first article was published, which proved to be a point of contention for dissenters. Although the Times’ was in possession of the leaked documents for months, the timing of their series was uncomfortably close to the end of term for the Supreme Court; Chief Justice Burger made note of the timeframe his dissent:

I suggest we are in this posture because these cases have been conducted in unseemly haste… The prompt setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste. Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue. (New York Times Co. v. United States)

Chief Justice Burger was not alone in his distaste for such hasty proceedings on a case of that caliber. Justice John Marshall Harlan, who joined Chief Justice Burger along with Justice Harry Blackmun in the minority vote, referenced Justice Oliver Wendell Holmes’ famous statement “Great cases, like hard cases, make bad law,” from the decision of Northern Securities Co. v. United States, 193 U.S. 197 (1904) in his dissent. “With all respect,” Justice Harlan wrote, “I consider that the Court has been almost irresponsibly feverish in dealing with these cases” (New York Times Co. v. United States).

In the concurrence opinions, the most heavily cited precedent was the landmark decision Near v. Minn., 283 U.S. 697 (1931). In Near v. Minnesota, the Supreme Court under Chief Justice Charles Evan Hughes found that prior restraint was a violation of the First Amendment. This decision established a constitutional principle of the First Amendment: the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding (Near v. Minnesota).

In his concurrence, Justice Black echoed the sentiments of Chief Justice Hughes in his 1931 opinion in Near v. Minnesota:

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's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. (New York Times Co. v. United States)

Justice Douglas’ concurrence also expanded upon the ideas of Chief Justice Hughes, pointing out that although the publishing of formerly top-secret information may have a serious impact, it is still no basis for sanctioning a prior restraint on the press (New York Times Co. v. United States).

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1968) was another precedent in the Pentagon Papers decision. The decision issued by the Court established the standard that any instances of prior restraint brought before the Supreme Court would be faced with “heavy presumption against its constitutional validity” (Bantam Books, Inc. v. Sullivan). The decision, delivered by Justice Brennan, established a precedent that made it easy for the Court to deem censorship in the form of prior restraint as unconstitutional.

The precedent of “heavy presumption” established in Bantam Books, Inc. v. Sullivan was also influential in the deciding of Organization for a Better Austin v. Keefe 402 US 415 (1971), the third precedent cited in the New York Times Co. v. United States per curiam opinion. Organization for a Better Austin v. Keefe was decided about four weeks before the Pentagon Papers were first published. In an opinion written by Chief Justice Burger, the Court held that in addition to instances of prior restraint being met with a heavy presumption against their constitutional validity, those seeking prior restraint on any publication or expression must carry the “heavy burden of showing justification for the imposition of such a restraint” (Organization for a Better Austin v. Keefe).

In conjunction, these three Supreme Court precedents guided the decision of the Court. Near v. Minnesota established that prior restraint was unconstitutional; Bantam Books, Inc. v. Sullivan set the standard of a “heavy presumption against constitutional validity” in instances of prior restraint; Organization for a Better Austin v. Keefe ensured that the burden of justifying the use of such restraint falls upon the entity who issued it in the first place— in this case, the Nixon administration. These three decisions were woven together by the Court, formulating the question and guiding the reasoning with which New York Times Co. v. United States was decided.

IN HISTORY

Though the entire legal process was squared away in less than three weeks, the Pentagon Papers Case was huge national news that splintered the nation. While there were groups that disapproved of the publication of the Pentagon Papers, the Times remained the most practical place for getting the latest updates on their own case. This definitely presented a decent amount of bias in the Times’ coverage of the chain of events, described in one June 16th front-page article as “an unprecedented example of censorship” (Graham, 1971d).

The release of the Pentagon Papers and ensuring legal issues were so contextually pivotal that competing news organizations— the Times, the Post and the Boston Globe, along with a handful of smaller papers— put aside their business differences and banded together to present a unified front against the government’s censorship (Chokshi, 2017).

Benjamin Bradlee, editor of the Washington Post at the time, managed to preserve a snapshot of the polarized views of Americans in 1971 regarding New York Times Co. v. United States. One of Bradlee’s archives contained letters from the public regarding the Pentagon Papers divided into two categories: ‘Public Opinion (positive)’ and ‘Public Opinion (negative)’ (Krivak, 2017).

The negative folder was filled with snippets of hate mail, even some addressed to Max Frankel, editor of the Times. These letters contained words of disapproval from Americans who condemned the Times’ series, such as:

You spoke of the First Amendment and the privileges of the New York Times to print the news whatever the consequences… Any given number of additional secret document printing for public consumption, and there could possibly be no more First Amendment, no more democracy, and yes—Mr. Frankel—no more New York Times…This is the type of action that is destroying the United States from within and to say the very least causing the public not to know what to believe. (Krivak, 2017)

Some citizens took more of an issue with the fact that the documents were inherently stolen, having been copied by Ellsberg illegally. A minister based in Washington, D.C., wrote, “It is my own personal hope that the government of the United States will indict and prosecute to the fullest extent not only the thieves or thief, but also the representatives of the newspapers and anyone else involved” (Krivak, 2017).

The Times was praised for its reporting as widely as it was criticized. While Bradlee’s folder of positive reactions from the public was noticeably smaller, the words of affirmation were equally as powerful. A correspondence from El Paso, Texas, read:

Mr. Ellsberg should be cited as a hero for literally forcing the government to be honest in spite of itself… I believe the laws broken by Mr. Ellsberg in taking the documents and disseminating them to the press are, at best, laws that need to be broken. Secrets can damage us far more than the truth. (Krivak, 2017)

Other readers wrote to the Times and the Post, commending them for having the courage to blatantly defy executive orders in pursuit of the truth. Alexander Bickel, a Yale law professor who went on to argue on behalf of the Times, was quoted in a June 16th article as describing the injunction as a “classic case of censorship” invoked by “an anti-Espionage law that had never been intended by Congress to be used against the press” (Graham, 1971).

The Times’ resilience on the frontlines against censorship did not go unnoticed— their reporting of the Pentagon Papers earned the Times a Pulitzer Prize for Public Service in 1972 (Harris, 2018).

THE IMPACT

The Court’s decision to allow the publication of the Pentagon Papers in New York Times Co. v. United States is generally regarded as a victory for the First Amendment. The per curiam decision issued by the Court made it clear that in any situation in which the government wishes to resort to prior restraint, it faces the difficult task of convincing the courts to issue the necessary legal orders and present those orders as justifiable. After the decision was made public, Alexander Bickel, a Yale law professor who argued on behalf of the Times, said that the ruling left the press in a stronger position, as “no Federal District Judge would henceforth temporarily restrain a newspaper on the Justice Department's complaint” (Graham, 1971f).

Although the Pentagon Papers case was a victory for the First Amendment on paper, a lot of aspects still remain ambiguous. The Court’s opinion was watered down by a divided vote and its inability to present a unified front in favor of the First Amendment left some lines blurred about when, if ever, government censorship is permitted (Robertson, n.d.). These gray areas that exist at the crossroads of censorship and the American government resurfaced in the Wisconsin District Court decision of United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland, 467 F. Supp. 990 (W.D. Wis. 1979). This decision, less than a decade after the Pentagon Papers Case, is one of the few court decisions that used prior restraint to prevent an article about the H-Bomb from being published (Parker, n.d.).

New York Times Co. v. United States has forever changed the way the Court handles censorship and the First Amendment. It restricted the use of prior restraint as a government tool for things the administration wants to be kept secret. The Pentagon Papers Case itself has become a precedent, used to shut down similar instances of prior restraint.

The Bush administration of December 2005 was rumored to be reminiscent of Nixon in 1971: after a failed attempt to kill an unflattering story, written by the Times’ James Risen and Eric Lichtblau, about the administration’s use of unwarranted wiretapping, the White House was rumored to be “seeking a Pentagon Papers-type injunction to block publication of the story.” The Times recognized the situation as similar to the Pentagon Papers, and responded by swiftly publishing the story online. “The administration might be able to stop the presses with an injunction,” Lichtblau said in an article for Slate in 2008, “but they couldn’t stop the internet” (Lichtblau, 2008).

Though the Pentagon Papers Case was not perfect and the fight for free speech is ongoing, the impact New York Times Co. v. United States has had as a precedent for cases of prior restraint and censorship are unparalleled. I think the Columbia Journalism Review put it best:

This heroic act of journalism, and the legal ruling it forced the US Supreme Court to make, still stand today as the most powerful legal and moral weapon in the American media’s battle against government secrecy. Whereas Britain and most other countries reserve the right to censor the news, American courts took that option off the table almost 45 years ago, after weighing the role of the media in American life versus the government’s desire to keep national security programs secret. (Priest, 2016)

Taking into account everything we’ve covered about the First Amendment this semester, I feel as though the Supreme Court made the proper decision. Had the outcome been any different, I do not think journalists would have the rights we do today, nor would the United States be the country that it is.

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