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and that American forces should be withdrawn immediately.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