New York Times Company v. U.S.: 1971

Appellant: The United States
Defendant: The New York Times Company
Appellant's Claim: That the government's efforts to prevent the New York Times from publishing certain Vietnam War documents known as the "Pentagon Papers" were justified because of the interests of national security
Chief Defense Lawyers: Alexander M. Bickel and William E. Hegarty
Chief Lawyers for Appellant: Daniel M. Friedman, Erwin N. Griswold, and Robert C. Mardian
Justices: Hugo L. Black, Harry A. Blackmun, William J. Brennan Jr., Warren E. Burger, William 0. Douglas, John M. Harlan, Thurgood Marshall, Potter Stewart, and Byron R. White
Place: Washington, D.C.
Date of Decision: June 30, 1971
Decision: The government cannot restrain the New York Times from publishing the Pentagon Papers.

SIGNIFICANCE: In New York Times Company v. U.S., the Supreme Court held that the government must meet a heavy burden of justification before it can restrain the press from exercising its First Amendment right to publish.

In the Spring of 1971, the Vietnam War was still raging despite the fact that popular opinion was against President Richard Nixon's administration's efforts to keep the United States in the conflict. Opposition to the war spread throughout the armed forces themselves and into what has been called the military-industrial complex. This opposition sentiment affected one man in particular, a former employee of the U.S. Department of Defense who had also worked for the Rand Corporation, an important military contractor. His name was Daniel Ellsberg.

Ellsberg and a friend, Anthony Russo, Jr., stole a copy of a massive, 47-volume study prepared by the Department of Defense titled "History of U.S. Decision-Making Process on Vietnam Policy." The study had more than 3,000 pages, supplemented with 4,000 more pages of source documents. Ellsberg and Russo also stole a one-volume study titled "Command and Control Study of the Gulf of Tonkin Incident," prepared in 1965. These studies were essentially a massive history of American involvement in Vietnam since World War II, and were classified "TOP SECRET-SENSITIVE" and "TOP SECRET" respectively.

Ellsberg and Russo passed these studies on to two newspapers, the New York Times in New York City and the Washington Post in Washington, D.C. Neither paper was involved in the theft of government documents. In its Sunday, June 13, 1971, edition, the Times began a series of articles containing excerpts from the studies, which were dubbed the "Pentagon Papers." The Times published more articles on June 14 and 15.

The Government Moves to Stop the Leak

On June 15, 1971, the government asked the U.S. District. Court for the Southern District of New York to restrain the Times from publishing any more of the Pentagon Papers. The court refused to issue an injunction against the Times but did grant a temporary restraining order against the Times while the government prepared its case. On June 18, the Post also published portions of the Pentagon Papers, and the government promptly began proceedings in the District of Columbia to restrain that paper as well. The focus of the Pentagon Papers dispute, however, remained with the legal proceedings against the Times in New York City.

On June 18, 1971, the district court held a hearing. The government presented five experts on national security, who testified that publication of the Pentagon Papers would compromise the war effort. The next day, district court Judge Murray I. Gurfein issued his decision, in which he again refused to issue an injunction against the Times:

I am constrained to find as a fact that the … proceedings at which representatives of the Department of State, Department of Defense and the Joint Chiefs of Staff testified, did not convince this Court that the publication of these historical documents would seriously breach the national security. It is true, of course, that any breach of security will cause the jitters in the security agencies themselves and indeed in foreign governments who deal with us.… Without revealing the content of the testimony, suffice it to say that no cogent reasons were advanced as to why these documents except in the general framework of embarrassment previously mentioned, would vitally affect the security of the Nation.

Gurfein did, however, prevent the Times from publishing any more of the Pentagon Papers while the government hurried to file its appeal with the U.S. Court of Appeals for the Second Circuit (which covers New York). Once the appeal was filed, Circuit Judge Irving R. Kaufman continued the temporary restraint against the Times until the government could argue its case, which happened June 22, 1971. Usually, only three circuit judges hear an appeal, but in an unusual procedure all eight second circuit judges were on the bench that day. They listened to the government's claim that the Pentagon Papers' release would hurt national security, and the Times' defense that the First Amendment protected its publication of the excerpts.

The next day, June 23, the appeals court refused to give the government the injunction it wanted. On June 24, the government filed a petition with the Supreme Court. On June 25, the Court ordered the government and the Times to appear before the Court in Washington on the 26th for a hearing.

The Times' lawyers were Alexander M. Bickel and William E. Hegarty. The government's lawyers were Daniel M. Friedman, U.S. Solicitor General Erwin N. Griswold, and Robert C. Mardian. The two sides argued their positions before Justices Hugo L. Black, Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, William 0. Douglas, John M. Harlan, Thurgood Marshall, Potter Stewart, and Byron R. White.

Supreme Court Throws Out Government's Case

The Pentagon Papers case was a litigation whirlwind, beginning on June 15, 1971, and ending just over two weeks later, after having traveled through three courts, when the Supreme Court issued its decision on June 30, 1971. By a 6-3 vote, the Court slammed the door shut on the government's attempt to stop the Times from publishing the Pentagon Papers, with Justice Black stating:

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment.…

Yet the Solicitor General argues … that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights.… I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law … abridging the freedom … of the press …" Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints."

Not only did the Court reject the government's national security argument, but it criticized in no uncertain terms the Nixon administration's attempt to subvert the First Amendment. The role of the federal courts in the division of powers set up by the Constitution, namely as the judicial branch of government charged with the responsibility of protecting individual rights, was also reaffirmed:

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the government can halt the publication of current news of vital importance to the people of this country.

Chief Justice Burger and Justices Blackmun and Harlan dissented, arguing that the Court should defer to the executive branch's conclusion that the Pentagon Papers leak threatened national security.

The Court also dismissed the government's legal actions against the Post. The Pentagon Papers proceedings were not over yet, however. The government obtained a preliminary indictment against Ellsberg on June 28, 1971 for violating criminal laws against the theft of federal property. More formal indictments came against Ellsberg, and Russo as well, on December 30, 1971. In addition to theft, the government charged Ellsberg and Russo with violations of the federal Espionage Act.

Government Thwarts Own Prosecution of Ellsberg

The criminal prosecution involved 15 counts of theft and espionage against Ellsberg and Russo. Ellsberg faced a possible 105 years in prison and $110,000 in fines if convicted. Russo faced a possible 25 years in prison and $30,000 in fines if convicted. The two men were tried in the U.S District Court for the Central District of California, which includes Los Angeles, where they were alleged to have stolen the Pentagon Papers.

The judge was William Matthew Byrne, Jr. The case was stalled for over five months with pretrial procedural activities, but jury selection finally began in June 1972. It took until July 1972 for a jury to be formed and the trial to begin, but the trial was halted almost immediately after it began when it was revealed that the government had been secretly taping the defendants' confidential communications. Supreme Court Justice Douglas, who was responsible for hearing emergency appeals from the Ninth Circuit, which includes Los Angeles, ordered the trial halted until October.

In fact, it was not until January 17, 1973, that the Ellsberg and Russo trial resumed. A whole new jury had to be selected. Further, the case was now overshadowed by the Watergate scandal. On September 3, 1971, G. Gordon Liddy and E. Howard Hunt, Jr., led a group of Cuban exiles in a break-in of the offices of Dr. Lewis Fielding, which were located in Beverly Hills, California. Fielding was Ellsberg's psychoanalyst, and the White House-sponsored break-in team was hoping to discover the identity of other Ellsberg accomplices team was files. The break-in was a total failure: there was nothing in Fielding's files.

When news of the government-sponsored bugging of the Democratic Party's headquarters in the Watergate hotel and office complex in Washington broke sometime later, it was only a matter of time before the special Watergate prosecutors learned of the Fielding break-in. This information was publicly revealed April 26, 1973, after the Ellsberg and Russo trial had been dragging on for months without any sign of an imminent conclusion.

At first, Byrne didn't want to consider dismissing the charges against Ellsberg and Russo. The government had invested a great deal of time and money in the prosecution. Then, after April 26, there were further revelations that the government had been conducting more illegal wiretaps of Ellsberg's conversations than had previously been admitted. In disgust, Byrne dismissed the entire criminal prosecution against Ellsberg and Russo on May 11, 1973.

Byrne's final dismissal of the charges against Ellsberg and Russo ended the Pentagon Papers affair. The significance of the entire episode is embodied in the Supreme Court's rejection of the government's attempt to prohibit the Times from publishing the news. Although the government will not necessarily always lose a case based on the alleged interests of national security, under New, York Times v. U.S. it must meet a heavy burden of justification before it can restrain the press from exercising First Amendment rights.

—Stephen G. Christianson

Suggestions for Further Reading

Meiklejohn Civil Liberties Institute. Pentagon Papers Case Collection: Annotated Procedural Guide and Index. Berkeley, Calif.: Meiklejohn Civil Liberties Institute, 1975.

Salter, Kenneth W. The Pentagon Papers Trial. Berkeley, Calif.: Editorial Justa Publications, 1975.

Schrag, Peter. Test of Loyalty: Daniel Ellsberg and the Rituals of Secret Government. New York: Simon & Schuster, 1974.

Ungar, Sanford J. The Papers & the Papers: an Account of the Legal and Political Battle Over the Pentagon Paper. New York: Columbia University Press, 1989.