Background:

In 1971, Daniel Ellsberg copied a series of articles arising from a classified top secret forty-seven-volume study called History of U.S. Decision Making Process on Viet Nam Policy (1968). When he could not get leading politicians to publicize the study he passed them on to The New York Times After reviewing the documents for several months The New York Times started printing them in installments, the first on June 13, 1971.

After the third installment the Department of Justice obtained a temporary restraining order prohibiting further publications until June 19. On June 18 after the Washington Post printed two articles based on the study a similar injunction was filed against them.

The temporary restraining order was extended until noon June 21 by a circuit court judge so the Court of Appeals for the District of Columbia could hear the governments request for a preliminary injunction. On the 22nd the circuit court remanded the case to district court to determine whether the information that the Times and Post wanted to publish might cause "such grave and immediate danger" to national security as to warrant prior restraint. The court also continued the stay of publication till the 25th. The New York Times appealed to the Supreme Court calling for them to end the stay. The court held arguments on the 26th and four day later came out with 10 opinions: one per curiam opinion, six concurring and three dissenting.

Per Curiam Opinion:

In this opinion the Court first stated that in granted certiorari in the case. (Certiorari meaning it took over the case from a lower court in order to speed justice.)

The Court than went on to explain that in cases of prior restraints on expression there is a heavy presumption against the restraint being constitutional. Therefore the Government carries a heavy legal burden when trying to justify such a restraint. The Court does not think the Government met such a burden and struck down any stays on publication.

First majority opinion written by Justice Black with Justice Douglas concurring.

Black, who is known as a textualist points directly to the constitution and the First Amendment, "Congress shall make no law . . . abridging the freedom . . . of press," which he feels makes it quite clear that such a restraint would be unconstitutional. He dismisses the Governments claim that in spite of the first amendment the governments power to protect national security allows such an breach of the clearly outlined prohibition on censorship.

Second majority opinion written by Justice Douglaswith Justice Black concurring.

Douglas comments that secrecy in government is "fundamentally anti-democratic" since it allows for government abuse and limits debate.

Third majority opinion written by Justice Brennan

Basically he thinks that not only should there be no more stays on publication, but that the previous ones should not have been allowed either. Further he wants to make it clear that the previous issued restraints should not be taken as precedents for future calls for restraints on speech.

Fourth majority opinion written by Justice Stewart with Justice White concurring.

Perhaps the most interesting of the majority opinions. Stewart argues that since the Executive Branch has almost unlimited power in the areas of national defense and international relations. Power that the other two branches can do very little about other than in extreme cases impeachment, it is crucial that some sort of check on his power be in place. Stewart argues the real check on the presidents power is an "enlightened citizenry" and so it is crucial for them to have access to information and for there to be a free press to keep them enlightened. While Stewart agrees some classified information is necessary to national security, he feels that "maximum possible disclosure" is ideal.

Fifth majority opinion written by Justice White with Justice Stewart concurring.

White seems somewhat reluctant in his agreement with the judgement of the court. He agrees that the government did not meet his burden, but also agrees that the material in question is likely to cause harm to national interests. There is not enough harm to out way the importance of protecting freedom of press, but White hopes the press will be responsible and not print everything it possess.

Sixth majority opinion written by Justice Marshall.

Thurgood thinks that granting an injunction forbidding the publication of the material would violate the separation of powers. The Judicial and Executive Branches would then be making law together, something that is supposed to be left up to the Congress and the Legislative Branch. Clearly getting a judge to outlaw something is not nearly as hard as getting the Congress to pass a law, and is also less democratic.

The Dissenting Opinions

The three dissenting opinions all basically question the sudden haste that the decision in the case was made under. The point out that the material in question in from 1968, and that the New York Times had it in the possession for three months before publishing any of it. If they could wait that long why could not they have waited for the normal court process to go through, or consulted more closely with the Government before publishing. The dissenting justices were Chief Justice Burger, Justice Blackmun and Justice Harlen

Interestingly when Nixon first heard about the publication of the materials in question he was all for it, since after all it was the Democrats under President Johnson who had gotten into the country into the "war" in the first place. Only after Kissinger convinced him that there was stuff that might reflect badly on his party as well did Nixon act to try and stop the publication.

Sources: Sources: Volume I: Constitiution Law and Politics, David M. O'Brien. 1991
New York Times Co. v. United States

In 1971, Daniel Ellsberg, a consultant for the Pentagon working for the Rand Corporation, gave the 7,000 page "History of U.S. Decision-Making Process on Vietnam Policy" to a reporter from the New York Times. The papers chronicled the history of U.S. involvement and foreign policy in Vietnam between the years of 1945 and 1968. They recorded the Government's deception of the American people about the Vietnam War, and also included an admission that despite the fact that the war was unwinnable, more troops were being sent to Vietnam.

On June 13th, 1971, the New York Times published the first article about the documents, which came to be known as the Pentagon Papers. The government brought an injunction against the Times, and the FBI launched a search for Ellsberg. Ellsberg went into hiding and began to distribute copies of the documents to other newspapers, such as the Washington Post.

(Several days later, Ellsberg, having run out of copies of the Papers, turned himself in. He faced 115 years in prison on more than a dozen felony charges including espionage, theft, and conspiracy. The charges were later dismissed by a federal judge when it was discovered that President Richard Nixon had authorized the burglary of Ellsberg's psychiatrist's office in an effort to discredit him.)

The Times appealed the injunction and defeated the Government in the Court of Appeals for the District of Columbia Circuit and the District Court for the Southern District of New York. However, they were defeated in the Court of Appeals for the Second Circuit. Thirteen days after the first article was published, the case reached the Supreme Court of the United States. The Court ruled on the question of whether the President had the right to prevent the newspapers from further publishing these documents. The case of The New York Times, Co. v. United States (which was tried in conjunction with United States v. Washington Post Co.) was decided on June 30, 1971 in favor of the New York Times in a 6 to 3 decision. The majority consisted of Justices Black, Douglas, Brennan, Stewart, White and Marshall, while the dissenters were Chief Justice Burger and Justices Harlan and Blackmun.

The majority ruled that the injunction against the New York Times was an attempt by the President to circumvent the intent of the First Amendment, part of which stated: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

Justice Black authored the first majority opinion in which he stated that the press should be free of censorship so that it would not fear reprisal from the government for any criticism. He wrote:

The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

Black and the majority went on to argue that the First Amendment was designed to insure that the public would be well informed. By restricting the powers of the Government, so that a newspaper would not be prevented from publishing a story out of fear of prosecution, public knowledge would not be abridged. As Justice Stewart eloquently wrote:

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.

In the 182 years between the adoption of the Constitution and 1971, the executive branch had never requested that the courts restrict the publication of specific documents of vital importance to the American people. However, the justices went on to cite examples in which the President had attempted to obtain the right to exert such power, and noted that this authority had never been granted.

In 1917, when the Espionage Act was under consideration in Congress, a provision that would have allowed the President to halt the publication of news of importance to national security was struck down. When Title 18, U.S.C Section 793, (the law under which the New York Times was being prosecuted), was being debated in the Senate, a proposal to allow documents to be censored by Executive act was struck down primarily on the basis of the First Amendment. In another case, the case of Hirabayashi v. United States, the courts had ruled that Section 793 existed only to protect the Government's ability to wage war successfully.

The majority also raised several other points. One was that the First Amendment was designed to prevent government officials from suppressing the publication of embarrassing, but not libelous, material. Justice Douglas wrote:

The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

Another point, raised by Justice Brennan was that the President could not receive the power to halt any publication on the mere conjecture that it might be a threat to national security. He also argued that the court would essentially be making laws if it ruled in favor of the Government, because it would be circumventing the fundamental separation of powers by siding with the executive branch.

The dissenters did so for several reasons, which were primarily based on the fact that they were forced to make a ruling in a relatively short period of time, involving a highly sensational case. They quoted Justice Holmes who said:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

They argued that there was no reason to make the ruling under pressure of time, since the New York Times had had the documents in their possession for four months before they attempted publication. Given the amount of time that the Times had had to analyze the documents, the Justices went on to argue, they should have been able to discern sensitive information from that which could be openly published.

Since the documents covered material gathered between 1945 and 1968, a majority of the content had been unclassified by 1971. Had the Times approached the Government sometime during the four months of analysis, they may have been able to reach an agreement without litigation, or merely litigated the sensitive material. The Times' insistence that the public needed to have access to the Pentagon Papers immediately put an unfair burden upon the courts to make a judgment without full knowledge of the facts. Justice Burger stated "the consequence of all this melancholy series of events is that we literally do not know what we are acting on."

He also presented the point that the Times had analyzed the documents for four months without taking action. He stated:

To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect of the discovery or possession of stolen property or secret government documents. That duty, I had through – perhaps naively – was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times.

Justice Harlan, who joined with the Chief Justice and Justice Blackmun in dissenting presented a list of seven issues that he felt were inadequately addressed. He went on to say that as the President is our chief representative to foreign nations, he should be granted the power to decide what constitutes a threat to national security. Noting this, he argued that if the judiciary had the power to override 'executive determination,' the scope of that power must be extremely limited.

Justice Blackmun concluded the dissenting opinion by stating that he "[could] not subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions [of the Constitution]." He also believed that the publication of the Pentagon Papers would result in "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, [and] the inability of our diplomats to negotiate." He warned that the New York Times and Washington Post should be fully aware of the implications of this responsibility if they published the documents. The immediate result of the decision of the Justices in favor of the New York Times Co. was that the Pentagon Papers were made public. This had far reaching implications, as it contributed to the debate about U.S. Involvement in the Vietnam War. Nixon's illegal actions in relation to Daniel Ellsberg were a contributing factor in his eventual resignation on August 8, 1974 to avoid impeachment, even as the Vietnam War raged on.

Since the case was decided in 1971, forty-eight U.S. Supreme Court cases, the most recent of which was decided in 1994, and twenty-two Circuit Court cases have cited New York Times Co. v. United States in at least one opinion. The case is one of the most decisive in the protection of freedom of the press.

Most recently, on November 1, 2001, President George W. Bush signed an executive order essentially preventing the release of the presidential papers of Ronald Reagan. Theses were to be released under the Presidential Records Act, which mandates that presidential papers must be released 12 years after the end of a president's administration.

While President Bush is not mandating censorship of publication by the press, he is halting the dissemination of that information to the public . Ironically, until 1977, presidents had control over the release of their own presidential papers, but because of the misconduct of President Nixon, Congress passed the 1978 Presidential Records Act. It was specifically designed to prevent the president from manipulating and withholding information from the public. If the legality of Bush's actions are challenged in court, it is quite likely that the precedent set by the New York Times Co. v. United States may be instrumental in the decision of the case, although the composition of the current Supreme Court may yield a different decision in this matter.

_{Works Cited}

"Bush order to allow secrecy for presidential papers" The Providence Journal November 2, 2001, A3

"Ellsberg, Daniel." Encylopedia.com http://www.encyclopedia.com/articlesnew/15156.html

Goodale, James C., "The Pentagon Papers Case" USIA Electronic Journal, Vol. 2., No. 1, February 1997. http://usinfo.state.gov/journals/itdhr/0297/ijde/goodsb1.htm

Kreisler, Harry. Interview. Conversations with History: Conversation with Daniel Ellsberg. Webcast. July 29, 1998. http://globetrotter.berkeley.edu/conversations/

"NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)." FindLaw for Legal Professionals

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=403&invol=713