New York Times vs. U.S. (1971) This case came at a time when America was at unrest. A controversial war had divided the country.
Opinions and arguments about whether the US involvement in Vietnam was warranted occupied the minds of American citizens. The people were hungry for information regarding the war. The Pentagon Papers, somehow leaked to the New York Times and Washington Post, fulfilled this need of the people for information. The government’s assumption of prior restraint seemed to be a major blow to free speech and a sharp addition to the power of the government. The appellate courts’ indecisiveness brought the ultimate decision to the Supreme Court. There was a deep division of opinion even among the Justices, and their decision landmarked what had been previously uncharted waters.
The background to this landmark case has at its roots U.S. policies in Southeast Asia. These policies, which eventually led to the Vietnam War, were sharply criticized in a study authorized by Secretary of State Robert S. McNamara in 1967. This 47-volume study, officially named History of United States Decision-Making Process on Viet Nam Policy, have come to be known as the Pentagon Papers.
These papers detailed the entire history of our involvement in Vietnam from World War II to the beginning of the Paris peace talks. Daniel Ellsberg, an employee of a California think tank, was given access to this study. This think tank held Defense Department contracts to analyze American strategy in Vietnam. Ellsberg had become convinced that our involvement in Vietnam was a mistake, and that American forces should be withdrawn immediately. Ellsberg and a man named Anthony Russo then photocopied the papers in a Los Angeles advertising office.
Believing that these papers strongly supported his views, Ellsberg delivered a copy of the Pentagon Papers to Senator William Fulbright, chairman of the Senate Foreign Relations Committee. Still however, neither party made the papers public. Somehow copies of the documents were obtained by the New York Times, and in June 1971 they began publishing a series of articles based on the study. Nearly immediately a telegram was issued to the Times by the Attorney General John Mitchell ordering that it halt publication.
The Times refused, and the government brought suit against them. Thus began a remarkably swift journey of justice ending at the Supreme Court. The first court decision, issued by NY federal district court Judge Gurfein, was in favor of the Times. However, the federal appellate court reversed this decision and ordered the newspaper to halt publication.
Meanwhile, the Washington Post had obtained copies and had begun to print them, and the government brought suit against them as well. The US Court of Appeals for the District of Columbia decided not halt publication. The case was picked up by the Supreme Court in late June, just 11 days after the first suit. This was the first attempt by the federal government to restrain the publication of a newspaper, but in 1931 the state government of Minnesota had made such an attempt.
Near vs. Minnesota involved an anti-Semetic newspaper carrying on a smear campaign against local officials. Here the Supreme Court laid the precedent of prior restraint. The Court ruled that a prior restraint of publication would be allowed only in the most exceptional cases. That is, one that threatened “grave and immediate danger to the security of the United States.” From the government’s point of view, the Times case was such an exceptional case.
The government’s case rested on four arguments. The first was that many of the documents were stamped TOP-SECRET. The second argument was the fact that the papers were stolen, and the newspapers had no right to have them, much less publish them. Also, disclosure of the papers’ contents, such as the United States’ involvement in the assassination of South Vietnam President Diem, would embarrass the nation. Finally, release of the inside information on the United States’ approach to peace talks would hinder them and prolong the war. The newspapers arguments were fewer and shorter, but much more powerful in the minds of Americans and, as it turned out, the Supreme Court.
First and foremost was the First Amendment’s guarantee of free press, that is “Congress shall make no law.abridging freedom of speech or of the press.” The second was that there was an inherent danger in allowing the government to censure the news. Finally, the fact that the public had a right to know what the government was doing. The Supreme Court ruled 6-3 in favor of the newspapers. The Court held that there was a heavy burden on the government in that all prior restraint on publication are unconstitutional under the First Amendment, and that the government had not overcome this burden. There was a deep division of opinions in the Justices, and as such each wrote a separate opinion.
The six who voted against a restraint differed in their reasons. Half – Justices Black, Douglas, and Marshall, felt that a prior restraint would never be constitutional. The others – Justices Brennan, Stewart, and White – felt that a prior restraint would be constitutional in cases where an extreme danger was present to security of the US, but that the government had not proven that the papers’ publication would create such a danger. The three who voted for closure of the papers – Justices Blackmum and Harlan, and Chief Justice Burger – supported the President’s decision that disclosure of the documents would harm the national interests. They felt that since the conduct of foreign relations and national defense was under the realm of the executive branch, the judicial branch should not question the President’s decision.
Daniel Ellsberg and Anthony Russo were indicted for conspiracy, theft of government property, and for the violation of the Espionage Act. However, the misconduct of the great president Nixon and his little helpers – the “Plumbers” – in their dealings with Ellsberg essentially absolved Ellsberg and Russo. The “Plumbers” had done all kinds of activities, including illegal wiretaps and seizures, which in the opinion of federal Judge Matt Byrne, “offended a sense of justice.” The case of New York Times Co. vs. United States was in fact a landmark case in the American judicial system. It was the first attempt by the federal government to restrain the publication of a newspaper.
Not only was it a major test of the interpretation of the First Amendment, but it came at a crucial time in American history. The events and subsequent disclosures of the Watergate cover-up were unfolding, and many were beginning to question the power of the government. This was a major victory for free expression in America.