Petitioner
United States
Respondent
The New York Times Company
Petitioner'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 Lawyers for Petitioner
Alexander M. Bickel, William E. Hegarty
Chief Lawyers for Respondent
Daniel M. Friedman, Erwin N. Griswold, Robert C. Mardian
Justices for the Court
Hugo Lafayette Black (writing for the Court), William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Potter Stewart, Byron R. White
Justices Dissenting
Harry A. Blackmun, Warren E. Burger, John Marshall Harlan II
Place
Washington, D.C.
Date of Decision
30 June 1971
Decision
The government cannot restrain the New York Times from publishing thePentagon Papers.
Significance
In New York Times Company v. United States, 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 thatpopular 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 alsostole 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 YorkTimes 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, 13 June 1971 edition, the Times began a series of articles containing excerpts from the studies, which were dubbed the "Pentagon Papers." TheTimes published more articles on 14 and 15 June.
The Government Moves to Stop the Leak
On 15 June 1971 the government asked the U.S. District Court for the SouthernDistrict 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 alsopublished portions of the Pentagon Papers, and the government promptly beganproceedings 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 18 June 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:
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 theappeal was filed, Circuit Judge Irving R. Kaufman continued the temporary restraint against the Times until the government could argue its case, which happened 22 June 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 theFirst Amendment protected its publication of the excerpts.
The next day, 23 June, the appeals court refused to give the government the injunction it wanted. On 24 June, the government filed a petition with the Supreme Court. On 25 June, the Court ordered the government and the Timesto appear before the Court in Washington on the 26 June for a hearing.
Supreme Court Throws Out Government's Case
The Pentagon Papers' case was a litigation whirlwind, beginning on 15 June 1971 and ending just over two weeks later, after having traveled through threecourts, when the Supreme Court issued its decision on 30 June 1971. By 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:
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 ofpowers set up by the Constitution, namely as the judicial branch of government charged with the responsibility of protecting individual rights, was alsoreaffirmed:
Chief Justice Burger and Justices Blackmun and Harlan dissented, arguing thatthe 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. ThePentagon Papers proceedings were not over yet, however. The government obtained a preliminary indictment against Ellsberg on 28 June 1971 for violating criminal laws against the theft of federal property. More formal indictments came against Ellsberg, and Russo as well, on 30 December 1971. In addition totheft, 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 $110,000in fines if convicted. Russo faced a possible 25 years in prison and $30,000in 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. Pretrial procedural activities stalled the trial for over three months, but jury selection finally began in Juneof 1972. It took until July 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 hearingemergency appeals from the Ninth Circuit, which includes Los Angeles, ordered the trial halted until October.
In fact, it was not until 17 January 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 3 September 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. Fieldingwas Ellsberg's psychoanalyst, and the White House-sponsored break-in team washoping to discover the identity of other Ellsberg accomplices from Fielding's 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 26April 1973, after the Ellsberg and Russo trial had been dragging on for months without any sign of an imminent conclusion.
At first, Byrne did not want to consider dismissing the charges against Ellsberg and Russo. The government had invested a great deal of time and money inthe prosecution. Then, after 26 April there were further revelations that thegovernment 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 11 May 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 inthe 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 Company v. United States it must meet a heavy burden of justification before it can restrain the press from exercising First Amendment rights.
Related Cases
The Pentagon Papers
The Pentagon Papers was a voluminous study secretly conducted for theU.S. Defense Department, from 1967 to 1969. Its official name was the History of the U.S. Decision-Making Process on Viet Nam Policy. This classified document was highly critical of the policies employed by the United Statesin Southeast Asia, which subsequently contributed to the Vietnam War.
In 1971, Daniel Ellsberg released the study to the New York Times, which along with the Washington Post began publishing portions of the material through a series of articles. Citing national security issues, the U.S.Department of Justice ordered the papers to cease publication of the material. However, this edict was overturned by the U.S. Supreme Court asserting that Freedom of the Press rights overrode national security interests.
Circulation of The Pentagon Papers in the newspapers resumed. Later in1971, the study was organized and published in book form. Daniel Ellsberg, the individual responsible for release of the information, was indicted on charges of theft, espionage, and conspiracy. These charges were ultimately dropped after the discovery that some of President Richard Nixon's staff had broken into Ellsberg's psychiatrist's office.
Sources
Cornell. http://supct.law.cornell.edu/supct/
Grolier Electronic Publishing, Inc., 1995.
United States
Respondent
The New York Times Company
Petitioner'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 Lawyers for Petitioner
Alexander M. Bickel, William E. Hegarty
Chief Lawyers for Respondent
Daniel M. Friedman, Erwin N. Griswold, Robert C. Mardian
Justices for the Court
Hugo Lafayette Black (writing for the Court), William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Potter Stewart, Byron R. White
Justices Dissenting
Harry A. Blackmun, Warren E. Burger, John Marshall Harlan II
Place
Washington, D.C.
Date of Decision
30 June 1971
Decision
The government cannot restrain the New York Times from publishing thePentagon Papers.
Significance
In New York Times Company v. United States, 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 thatpopular 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 alsostole 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 YorkTimes 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, 13 June 1971 edition, the Times began a series of articles containing excerpts from the studies, which were dubbed the "Pentagon Papers." TheTimes published more articles on 14 and 15 June.
The Government Moves to Stop the Leak
On 15 June 1971 the government asked the U.S. District Court for the SouthernDistrict 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 alsopublished portions of the Pentagon Papers, and the government promptly beganproceedings 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 18 June 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 documentswould seriously breach the national security. It is true, of course, that anybreach of security will cause the jitters in the security agencies themselves and indeed in foreign governments who deal with us . . . Without revealingthe 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 theappeal was filed, Circuit Judge Irving R. Kaufman continued the temporary restraint against the Times until the government could argue its case, which happened 22 June 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 theFirst Amendment protected its publication of the excerpts.
The next day, 23 June, the appeals court refused to give the government the injunction it wanted. On 24 June, the government filed a petition with the Supreme Court. On 25 June, the Court ordered the government and the Timesto appear before the Court in Washington on the 26 June for a hearing.
Supreme Court Throws Out Government's Case
The Pentagon Papers' case was a litigation whirlwind, beginning on 15 June 1971 and ending just over two weeks later, after having traveled through threecourts, when the Supreme Court issued its decision on 30 June 1971. By 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 ofthe Government adopted in the original Constitution should be interpreted tolimit and restrict the specific and emphatic guarantees of the Bill of Rights . . . I can imagine no greater perversion of history. Madison and the otherFramers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make nolaw . . . 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 ofpowers set up by the Constitution, namely as the judicial branch of government charged with the responsibility of protecting individual rights, was alsoreaffirmed:
Our Government was launched in 1789 with the adoptionof 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 ofthe 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 thepublication of current news of vital importance to the people of this country.
Chief Justice Burger and Justices Blackmun and Harlan dissented, arguing thatthe 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. ThePentagon Papers proceedings were not over yet, however. The government obtained a preliminary indictment against Ellsberg on 28 June 1971 for violating criminal laws against the theft of federal property. More formal indictments came against Ellsberg, and Russo as well, on 30 December 1971. In addition totheft, 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 $110,000in fines if convicted. Russo faced a possible 25 years in prison and $30,000in 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. Pretrial procedural activities stalled the trial for over three months, but jury selection finally began in Juneof 1972. It took until July 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 hearingemergency appeals from the Ninth Circuit, which includes Los Angeles, ordered the trial halted until October.
In fact, it was not until 17 January 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 3 September 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. Fieldingwas Ellsberg's psychoanalyst, and the White House-sponsored break-in team washoping to discover the identity of other Ellsberg accomplices from Fielding's 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 26April 1973, after the Ellsberg and Russo trial had been dragging on for months without any sign of an imminent conclusion.
At first, Byrne did not want to consider dismissing the charges against Ellsberg and Russo. The government had invested a great deal of time and money inthe prosecution. Then, after 26 April there were further revelations that thegovernment 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 11 May 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 inthe 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 Company v. United States it must meet a heavy burden of justification before it can restrain the press from exercising First Amendment rights.
Related Cases
- Schenck v. United States, 249 U.S. 47 (1919).
- Near v. Minnesota, 283 U.S. 697 (1931).
- DeJonge v. Oregon, 299 U.S. 353 (1937).
- Hirabayashi v. United States, 320 U.S. 81 (1943).
- Yates v. United States, 354 U.S. 298 (1957).
- Roth v. United States, 354 U.S. 476 (1957).
- New York Times v. Sullivan, 376 U.S. 254 (1964).
- Freedman v. Maryland, 380 U.S. 51 (1964).
The Pentagon Papers
The Pentagon Papers was a voluminous study secretly conducted for theU.S. Defense Department, from 1967 to 1969. Its official name was the History of the U.S. Decision-Making Process on Viet Nam Policy. This classified document was highly critical of the policies employed by the United Statesin Southeast Asia, which subsequently contributed to the Vietnam War.
In 1971, Daniel Ellsberg released the study to the New York Times, which along with the Washington Post began publishing portions of the material through a series of articles. Citing national security issues, the U.S.Department of Justice ordered the papers to cease publication of the material. However, this edict was overturned by the U.S. Supreme Court asserting that Freedom of the Press rights overrode national security interests.
Circulation of The Pentagon Papers in the newspapers resumed. Later in1971, the study was organized and published in book form. Daniel Ellsberg, the individual responsible for release of the information, was indicted on charges of theft, espionage, and conspiracy. These charges were ultimately dropped after the discovery that some of President Richard Nixon's staff had broken into Ellsberg's psychiatrist's office.
Sources
Cornell. http://supct.law.cornell.edu/supct/
Grolier Electronic Publishing, Inc., 1995.
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