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

Appeiiant: The United States Defendant: The New York Times CompanyAppeiiant's Ciaim: 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

Ciiief Defense Lawyers: Alexander M. Bickel and William E, HegartyChief Lawyers for Appeiiant : Daniel M. Friedman, Erwin N. Griswold, andRobert C. Mardian Justices: Hugo L. Black, Harry A. Blackmun, William J.

Brennan Jr., Warren E. Burger, William 0. Douglas, John M. Harlan, ThurgoodMarshall, Potter Stewart, and Byron R. White Piace: Washington, D.C.Date of Decision: June 30, 1971 Decision: The government cannot

restrain the New York Times from publishing the Pentagon Papers.

SIGNiFiCANCEIn New York Times Company v. U.S.. the Supreme Court held that the governmentmust meet a heavy burden of justification before it can restrain the press fromexercising its First Amendment right to publish.

I n the spring of 1971. the Vietnam War was still raging despite the fact thatpopular opinion was against President Richard Nixon's administration's ef-forts to keep the United States in the confliet. Opposition to the war .spreadthroughout the armed forces themselves and into what has been called themilitary-industrial complex. This opposition sentiment affected one man inparticular, a former employee of the U.S. Department of Defense who had alsoworked for the Rand Corporation, an important military contractor. His namewas 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 3.000pages, supplemented with 4,000 more pages of source documents. Ellsbcrg andRusso also stole a one-volume study titled "Command and Control Study of theCnilf of Tonkin Incident," prepared in 1965. These studies were essentially amassive history of American involvement in Vietnam since World War 11, andwere classified "TOP SECRET-SENSITIVE" and "TOP SECRET" respec-tively. 607

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Ellsberg and Russo passed these studies on to two newspapers, the NewYork Titnes in New York City and the Washington Post in Washington, D.C.Neither paper was involved in the theft of government documents. In itsSunday. June 1.^ . 1971, edition, the Times began a series of articles containing

excerpts from the studies, which were dub-bed the "Pentagon Papers." The Times pub-lished more articles on June 14 and 15.

Daniel Ellsberg releasedthe highly confidential"Peniagon Papers" to theHew York Times and theWashington Post, thussetting in motion animportant freedom of thepress decision. (Bettye-Lane)

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The Government Moves toStop the LeakOn June 15. 1971. the government

asked the U.S. District Court for the South-ern District of New York to restrain theTitnes from publishing any more of the Pen-tagon Papers, 'i'he court refused to issue aninjunction against the Times but did grant atemporary restraining order against theTimes while the government prepared itscase. On June 18, the Post also publishedportions of the Pentagon Papers, and thegovernment promptly began proceedings inthe District of Columbia to restrain that pa-per as well. The focus of the Pentagon Pa-pers dispute, however, remained with thelegal proceedings against the 'Titnes in New^ 'ork City.

On June 18. 1971. the district courtheld a hearing. The government presentedfive experts on national security, who testi-fied that publication of the Pentagon Paperswould compromise the war effort. T he nextday, district court Judge Murray I. Gurfeinissued his decision, in which he again re-fused to issue an injunction against theTimes:

I am constrained to find as a fact that the . . . proceedings at whichrepresentatives of che Department of State. Department of Defense and theJoint Chiefs of Staff tcstitied, did not convince this Ciourt that tht- publica-tion of these historical documents would seriously breach the nationalsecurity. It is true, of course, that any breach of security will cause rhe jittersin the security agencies chcnisclvcs and indeed in foreign governments whodeal with u s . . . . Without revealing the content of the testimony, suffice it tosay that no cogent reasons were advanced as to why these documents exceptIn the general framework of embarrassment previously mentioned, wouldvitally affect the security of the Nation.

Gurfein did, however, prevent the Times from publishing any more of thePentagon Papers while the government hurried to file its appeal with the U.S.Clourt of Appeals for the Second Circuit (which covers New York). Onee theappeal was filed. Circuit Judge Irving R. Kaufman continued the temporaryrestraint against the Times until the government could argue its ease, whichhappened June 22,1971. Usually, only three circuit judges hear an appeal, butinan unusual procedure all eight second circuit judges were on the bench that day.They listened to the government's claim that the Pentagon Papers' releasewould hurt national security, and the Times' defense that the First Amendmentprotected its publication of the excerpts.

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

The Times' lawyers were Alexander M. Bickel and William E. Hegarty.I he government's lawyers were Daniel M. Friedman, LLS. Solicitor GeneralErwin N. Griswold, and Robert C. Mardian. The two sides argued their posi-tions before Justices Hugo L. Black, Harry A. Blackmun, William J. Brennan, Jr.,Warren E. Burger, William O. Douglas, John M. Harlan, Thurgood Marshall,Potter Stewart, and Byron R. White.

1971New York TimesCompany v. U.S.

Supreme Court Throws Out Government's CaseThe Pentagon Papers case was a litigation whirlwind, beginning on June

15, 1971, and ending just over two weeks later, after having traveled throughthree courts, when the Supreme Court issued its decision on June 30, 1971. By a6-3 vote, the Court slammed the door shut on the government's attempt to stopthe Times from publishing the Pentagon Papers, with Justice Blaek stating:

In seekinK injunctions against these newspapers and in its presentation tothe Court, the Kxecutive Branch seems to have forgotten the essentialpurpose and history of the First Amendment. . . .Yet the Solicitor General argues . . . that the general powers of the Govern-ment adopted in the original Con.stitutin should be interpreted to limit andrestrict the specific and emphatic guarantees of the Bill of Rights. . . . I canimagine no greater perversion of history. Madison and the other Framers ofthe First Amendnient. able men that they were, wrote in language theyearnestly believed could never be misunderstood: "Congress shall make nolaw . . . abridging the freedom . . . of the press " Both the history andlanguage of the First Amendment support the view that the press must beleft free to publish news, whatever the souree, without censorship, injunc-tions, or prior restraints."Not only did the Court reject the government's national security argu-

ment, but it criticized in no uncertain terms the Nixon administration's attemptto subvert the First Amendment. The role of the federal courts in the division ofpowers set up by the Constitution, namely as the judicial branch of government 609

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charged with the responsibility of protecting individual rights, was also reaf-firmed:

Our Government was launched in 1789 with the adoption of the Constitu-tion. 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 couris are asked to hold that the First Amendment docs not meanwhat it says, hut rather means that the government can halt the publicationuf current new.s of vital importance to the people of this country.

Chief Justice Burger and Justices Blackmun and Haran dissented, arguingthat the Court should defer to the executive branch's conclusion that thePentagon 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. I^he governmentobtained a preliminary indictment against Ellsberg on June 28,1971 for violatingcriminal laws against the theft of federal property. More formal indictmentscame against Fllsberg, and Russo as well, on December 30, 1971. In addition totheft, the government charged Ellsberg and Russo with violations of the federalEspionage Act. *

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Government Thwarts Own Prosecution of ElisbergThe 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 Courtfor the Central District of California, which includes Los Angeles, where theywere alleged to have stolen the Pentagon Papers.

The judge was William Matthew Byrne, Jr. The case was stalled for overfive months with pretrial procedural activities, but jury selection finally began inJune 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 revealedthat the government had been seeretly taping the defendants' confidentialcommunications. Supreme Court Justice Douglas, who was responsible forhearing 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 Elisberg and Russo trialresumed. A whole new jury had to be selected. Further, the ease was nowovershadowed by the Watergate scandal. On September 3, 1971, 0 . GordonLiddy and E. Howard Hunt, Jr.. led a group of (>uban exiles in a break-in of theoffices 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 fromFielding's files. The break-in was a total failure: there was nothing in Fielding'sfiles.

When news of the government-sponsored bugging of the DemocraticParty's headquarters in the Watergate hotel and office complex in Washingtonbroke sometime later, it was only a matter of time before the special Watergateprosecutors learned of the Fielding break-in. This information was publiclyrevealed April 26, 1973, after the Ellsberg and Russo trial had been dragging onfor months without any sign of an imminent conclusion.

At first, Byrne didn't want to consider dismissing the charges againstElisberg and Russo. The government had invested a great deal of time andmoney in the prosecution. Then, after April 26, there were further revelationsthat the government had been conducting mote illegal wiretaps of Ellsberg'sconversations than had previously been admitted. In disgust, Byrne dismissedthe entire criminal prosecution against Ellsberg and Russo on May 11, 1973.

Byrne's final dismissal of the charges against Ellsberg and Russo ended thePentagon Papers affair. The significance of the entire episode is embodied in theSupreme Court's rejection of rhe government's attempt to prohibit the Timesfrom publishing the news. Although the government will not necessarily alwayslose a case based on the alleged interests of national security, under New YorkTimes V. U.S. it must meet a heavy burden of justification before it can restrainthe press from exercising First Amendment rights.

Stephen G. Christianson

1971New York Times

Company v. U.S.

Suggestions for Further ReadingMciklejohn Civil Liberties Insiituce. Pentagon Papers Case Collection: Annotated Procedural Guide and

Index. Berkeley, Calif.; Mciklcjohn VAvW Liberties lnscituce, 1975.Salter, Kenneth VV. The Pentagon Papers Trial. Berkeley, Calif.; Editorial Justa Publications, 1975.Schrg. Peter. Test of Loyalty: Daniel FJlsberg and the Rituals of Secret Government. New York: Simon &

Schuster, 1974.lingar, Sanford J. The Papers & the Papers: an Account of the Legal and Political Battle Over the Pentagon

Paper. New York: Columbia University Press. 1989.

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