New York Times v. U.S. (1971)
Politician reacts to the decision
Library of Congress, Prints and Photographs Division, U.S. News & World Report Magazine Collection
The principle of prior restraint is a foundational pillar of the freedom of the press ensured by the First Amendment. The Supreme Court first announced in Near v. Minnesota (1931) that government review of material beforehand to gauge its fitness for publication is the equivalent of censorship and antithetical to the notion of a free press. The principle laid down in Near was not absolute, as the Court in dicta contemplated the possibility of exceptional circumstances involving threats to vital national security interests. It would take four decades for such a case to work its way to the Court. When the Nixon administration sought to suppress national newspapers’ publication of classified files related to the Viet Nam War, the Supremes affirmed their commitment to the doctrine of prior restraint. But the decision in New York Times v. U.S. (1971) revealed a badly fractured court, its ten opinions indicating the difficulty of defining clearly the parameters of a national security exception to prior restraint.
The Release of the Pentagon Papers
Daniel Ellsberg was a military analyst who had worked in the Pentagon in the mid-1960s under Defense Secretary Robert McNamara. After spending two years in South Vietnam with the State Department, Ellsberg returned to D.C., where he worked at Rand Corporation on military strategy. In 1967, he joined with thirty-three other analysts in drafting a voluminous top-secret study on the conduct of the Vietnam War. Entitled “History of U.S. Decision-Making Process on Viet Nam Policy,” the report was commissioned by Secretary McNamara and ran to 7000 pages in length. Later referred to as the Pentagon Papers, it revealed that the administration had information relatively early on that raised serious questions about the likelihood of success in the war. The Papers also demonstrated that, in the later assessment of an editor at The New York Times, “the Johnson Administration had systematically lied, not only to the public but also to Congress” about the state of the war.
By 1969, Ellsberg had begun to turn against the war. Even while continuing to work for Rand, he began attending anti-war rallies and associating with peace activists. Later that year, he and a colleague at Rand made multiple copies of the massive stockpile of Pentagon Papers, to which he had access. For much of 1970, Ellsberg tried to convince a handful of sympathetic senators to release the Papers on the Senate floor. He then shared the documents with New York Times correspondent Neil Sheehan, who he had known from his time in Vietnam. Ellsberg asked Sheehan only to take notes on the documents, but Sheehan ignored the request and made copies while Ellsberg was vacationing away from his Boston home. In early March of 1971, Sheehan squired the copies of the Papers back to Washington and then New York, where he shared them with his editors at the Times. From March through May, a small group of Times editors and reporters hunkered down in hotel rooms to review the classified documents. On June 13, 1971, the Times published the first excerpt from the Pentagon Papers, along with its commentary and analysis.
A Fast Track to the U.S. Supreme Court
The appearance of the excerpts in the Times triggered a rapidly moving legal process that had the case before the Supreme Court within twelve days. After only two days of the Times publishing the Papers, the Nixon administration filed a motion in federal court to halt further publication, arguing that it would cause irreparable injury to the country’s national security. The administration pointed to the classification of the entire 1968 history as top secret, a classification reserved only for material the disclosure of which “could result in exceptionally grave damage to the Nation.” The news organizations countered that the Papers were purely historical in nature, revealing nothing pertaining to current operations in the theater of war. On June 15, the district court issued a temporary restraining order stopping publication. Three days later, the court lifted the restraining order and denied a permanent injunction against publication. The Circuit Court of Appeals quickly blocked further printing of the Papers pending the government’s appeal. This marked the first time since the Civil War that the government had successfully blocked the publication of a major newspaper. Meanwhile, Ellsberg quickly released the Pentagon Papers to seventeen other newspapers around the country.
On the morning of June 24, the Times filed a petition for review with the Supreme Court, just as the Court had completed its work for the year. Suspending its plans for summer recess, the Court on June 25 granted expedited appeal, bypassing the Court of Appeals. It initially left the appellate court’s restraining order in place over the protests of four of the justices, and set the case on for oral arguments for the following day, June 26. So chaotic was the preparation for the case that the parties’ briefs on the merits arrived at Court less than two hours before oral arguments commenced. Just four days later, on June 30, the Court announced its decision in a one-paragraph per curiam opinion siding with the news organizations over the government. The brief per curiam opinion simply noted that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," a burden the government had failed to satisfy. Little consensus existed beyond that. The per curiam opinion was accompanied by nine separate opinions, with six justices in the majority and three in dissent.
The Absolutists: The Black and Douglas Concurring Opinions
The opinions by Justices Hugo Black and William Douglas went the furthest in the bar against prior restraint. Reiterating long-held views that the First Amendment prohibition against infringements of the press was unqualified, both justices took the absolutist position that there could never be a governmental justification that would warrant judicial restraints on the press. Black was especially indignant over the government’s motion for injunctive relief, believing that “every moment’s continuance of the injunctions . . . amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Taking a literalist view of the freedom of the press, Black castigated the administration for asking the Court 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 country. Calling the government’s position a perversion of history, it was clear whose side Black was on. He considered it paramount among the duties of the press to “prevent any part of the government from deceiving the people and sending them off to distant land to die of foreign fevers and foreign shot and shell.” He argued that the newspapers deserved to be commended rather than condemned, that they were doing “precisely that which the Founders hoped and trusted they would do.” As to the government’s reliance on the “inherent power” of the President to freeze publications in the name of national security, Black lamented that it would “wipe out the First Amendment and destroy the fundamental liberty and security” of those the government hoped to make secure.
Douglas piggybacked onto Black’s forceful rhetoric, concluding in a short concurrence that the language of the First Amendment left “no room for governmental restraint of the press.” There was no place for secrecy in government, which he found to be fundamentally anti-democratic. Rather the national health demanded “uninhibited, robust, and wide-open” debate on public questions such as the war.
The Swing Justices: The Opinions of Brennan, Marshall, Stewart and White
The four justices in the middle – Brennan, Marshall, Stewart and White – acknowledged a very narrow exception to the rule of prior restraint in the name of national security. But each employed varying arguments in finding that the government had not met the heavy burden necessary to block the release of the news prior to its publication. For Justice Brennan, the “extremely narrow class of cases” that might justify a prior restraint demanded something more than surmise or conjecture as to deleterious consequences. Such cases would likely arise only when the nation was at war, when the government could provide the requisite proof that publication would “inevitably, directly, and immediately” cause the anticipated harm.
Justices Stewart and White were more inclined to recognize the extraordinary power of the executive in the realm of national defense, and to acknowledge the likelihood of real harm in the Pentagon Papers’ public release. Stewart even admitted that the administration was likely correct as to the need to protect the confidentiality of some of the documents. But he fell back on an informed citizenry as a necessary constraint on executive authority. It was precisely in cases such as this that “a press that is alert, aware, and free most vitally serves the basic purposes of the First Amendment.” Absent a showing of “direct, immediate, and irreparable damage” to the country or its people, he was not ready to enjoin publication. Justice White took a similar stance; he stated his belief that “revelation of these documents will do substantial damage to public interests.” Nevertheless, he declined to find that sufficient to meet the burden needed to warrant an injunction against publication.
Justice Marshall took a position unique among the nine, avoiding the merits of the claim and viewing the issue as a matter of separation of powers. Since Congress had retained, but declined to exercise, the authority to permit the executive to do what Nixon was seeking to do, he thought it presumptuous for the Court to do so. He deemed it “utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit.”
The Dissenters: The Burger, Harlan and Blackmun Opinions
The three dissenting justices were careful to join with their concurring brethren in emphasizing the importance of what Burger referred to as the “universal abhorrence of prior restraint.” But each was unwilling to dismiss the administration’s claim for injunctive relief. All three dissenters expressed deep reservations about the procedural handling of the case. The Chief cited the “unseemly haste” that had deprived the Court of “reasonable and deliberate judicial treatment” of the government’s claim. The “frenetic haste” that marked the decision was “not the kind of judicial conduct” that should attend the resolution of such a “great issue.”
Blackmun raised similar objections. He explicitly rejected the First Amendment absolutism of Justices Black and Douglas, and bemoaned the lack of properly developed standards needed to weigh “the broad right of the press to print and of the very narrow right of the Government to prevent.” He would have remanded the case to the lower courts where such standards could be considered “expeditiously . . . but on a schedule permitting the orderly presentation of evidence from both sides.” Blackmun ended his opinion by lecturing the news outlets about what he considered genuine dangers of publication. Those included “great harm to the nation” in the form of “death to soldiers, the destruction of alliances, the greatly increased difficulty of negotiations with our enemies,” and possibly prolonging of the war and delaying the freeing of prisoners. Were these to pass, Blackmun darkly concluded, “the Nation’s people will know where the responsibility for these sad consequences rests.”
Harlan likewise found that “the Court has been almost irresponsibly feverish” in its handling of the case. He replayed the “frenzied train of events” that precluded a proper reflection on the “extraordinarily important and difficult questions” raised by the case. But he also stood alone among the justices in viewing separation of powers as giving the judiciary an “exceedingly narrow” scope of review over Executive action in foreign affairs. That review was limited only to a determination that the subject matter in dispute in fact lay within the proper sphere of the President’s foreign relations powers.
The Decision’s Legal Impact: A Mixed Legacy?
New York Times Co. v U. S. is regarded by many as a seminal victory for freedom of the press in America. The ruling left no doubt that it would be extremely difficult for the government to stop newspapers from publishing classified or sensitive information. It reinforced the strong presumption against government censorship, affirming that prior restraint is unconstitutional unless publication causes a grave and immediate danger to national security. The decision continues to bear on current conflicts involving national security whistleblowers, leaks, and journalistic rights.
But despite its iconic standing, some free press advocates assert that its legacy is far murkier. No doubt the eight of the precedent was weakened by the fractured nature of the decision and the absence of any clearly reasoned opinion that demanded majority support. Among the fragmented majority were contradictory arguments contending that prior restraint (1) may never be imposed, (2) may be imposed only if the threat to national security can be proven to be real, serious, and immediate, or (3) may be imposed only if Congress clearly authorizes it. Add the multiple positions of the dissents, and one is left with an ambiguous result that contemplates the possibility of government censorship without clarifying the conditions under which it might be allowed.
In fact, some have pointed to Snepp v. U.S. (1980) only nine years later as a possible repudiation of New York Times v. U.S. In Snepp, the High Court upheld the enforceability of a government employment agreement that required former CIA analyst Snepp to get his manuscripts cleared via prepublication review. The Court’s acquiescence in what was an explicit restraint in advance of publication could be read as a rejection of the arguments articulated by members of the majority in New York Times v. U.S. Particularly in light of the make-up and ideological tilt of the current Supreme Court, it is entirely foreseeable that Snepp might be read as overruling the Pentagon Papers case, and perhaps even Near v. Minnesota.
A Postscript: Ellsberg, The Plumbers, and the Precursor to Watergate
The Pentagon Papers case is one that lands on the list of the Court’s most important more for its political consequences than its for legal import. Undoubtedly the publication of the Papers fed anti-war sentiment and stoked public distrust of the administration’s deceptions around the Vietnam War. But far more significant was the political fallout that would ultimately lead to the Watergate scandal. Frustration in the White House over the leaks of the Pentagon Papers and the Court ruling prompted the formation of the “White House Plumbers” unit that would undertake an illicit campaign against Ellsberg. Concerned that Ellsberg had additional files he intended to leak, White House aides with names that later would be made famous by Watergate (Egil Krogh, G. Gordon Liddy, E. Howard Hunt) met in the basement of the Old Executive Office Building in August of 1971. There they planned a "covert operation" to obtain evidence of Ellsberg's mental state that could be used to discredit him. On September 3, 1971, acting with the approval of key Nixon advisor John Ehrlichman, the White House Plumbers (Hunt, Liddy and three former CIA agents) broke into the office of Dr. Lewis Fielding, Ellsberg’s psychiatrist, to pilfer Ellsberg’s medical files.
The Plumbers found the files, which contained none of the potentially embarrassing information they sought. Ehrlichman refused to authorize a subsequent break into Fielding’s home, and the plans were abandoned. The break-in was not known to Ellsberg or to the public until it came to light during Ellsberg's trial in April 1973, after he was indicted under the Espionage Act of 1917. His trial began on January 3, 1973, with U.S. District Judge William Matthew Byrne Jr. presiding. Byrne appeared early in the trial to be predisposed against Ellsberg. When the defendant tried to assert that the Papers were classified, not for national security reasons, but to secrete them from the American public, Byrne ruled the argument irrelevant. He then proceeded to silence Ellsberg in court, effectively denying him a defense. The trial took a turn in Ellsberg’s favor when the break-in of the psychiatrist’s office was revealed to Judge Byrne in a memo in April. In May, further evidence of illegal of wiretapping of Ellsberg by the FBI was also revealed in court. Neither the break-in nor the wiretapping had been shared by the prosecution with the defense. The final straw was the judge’s announcement during trial that he had been approached by John Ehrlichman, who had offered him the directorship of the FBI. Based on gross governmental misconduct and illegal evidence gathering, Byrne dismissed all charges against Ellsberg on May 11, 1973.
The establishment of the White House Plumbers, under Ehrlichman’s supervision, would later lead to the Watergate burglaries, the cover-up of which would eventually bring down President Nixon himself. It was nine months after the Fielding break-in that police would arrest five burglars with ties to Hunt and Liddy breaking into the Democratic National Headquarters at the Watergate complex in Washington, DC. Members of the Plumbers themselves later admitted they viewed the Ellsberg break-in as the precursor to Watergate. Ellsberg’s friend, Richard Holbrooke, came to regard Ellsberg as "one of those accidental characters of history who show the pattern of a whole era" and who served as the "triggering mechanism for events which would link Vietnam and Watergate in one continuous 1961-to-1975 story."
