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

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.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972New York Times Company v. U.S.: 1971 - The Government Moves To Stop The Leak, Supreme Court Throws Out Government's Case, Government Thwarts Own Prosecution Of Ellsberg