In June 1967, Secretary of Defense Robert McNamara had Department of Defense staff undertake a study of the history of the American involvement in Vietnam. The study, universally known as ‘‘The Pentagon Papers,’’ was essentially complete by January 1969 and contained 7,000 pages of historical studies and documents spread over forty-seven volumes. It was classified ‘‘top secret–sensitive’’ and only fifteen copies were made; two ended up at the RAND Corporation.
In late 1969, Daniel Ellsberg—a former Marine, Defense Department employee, and RAND employee— and Anthony Russo surreptitiously copied the entire report. In March 1971, Ellsberg provided a copy to New York Times reporter Neil Sheehan. After protracted internal debate, the Times began to print excerpts in the newspaper for Sunday, June 13. By Thursday, Ellsberg had provided some 4,000 pages of the papers to the Washington Post, which started to run excerpts on Friday, June 18, and other newspapers followed suit.
Initially, President Nixon saw the publication as more useful politically, given its unflattering portrait of prior administrations, than harmful to national security. However, nudged by Henry Kissinger and Assistant Attorney General Robert Mardian, Nixon soon decided to seek a judicial injunction against further publication by the Times.
To prohibit publication of truthful, politically salient information raises obvious concerns under the First Amendment, particularly if the prohibition is a prior restraint, preventing communication rather than penalizing it after the fact. In an understanding usually traced back to Blackstone, prior restraints are seen as antithetical to principles of free speech. In Near v. Minnesota (1931), the Supreme Court had held unconstitutional a state court order enjoining publication of articles about corruption and incompetence in law enforcement. But Near observed that the prohibition on prior restraints is ‘‘not absolutely unlimited,’’ and does not apply in ‘‘exceptional cases’’ such as publication of the number and location of troops. The First Amendment question in the Pentagon Papers Case was whether the threat to national security rendered this one of the ‘‘exceptional cases.’’ Another constitutional issue was also present. No statute authorized the executive to seek or the judiciary to grant the requested injunction. The newspapers’ lawyers argued that under separation of powers principles those branches lacked inherent authority to proceed without legislative authorization.
On Tuesday, June 15, the Justice Department obtained a temporary restraining order (TRO) against further publication by the Times from U.S. District Judge Murray Gurfein in Manhattan. On Saturday, after a one-day trial, Gurfein denied a preliminary injunction because the evidence ‘‘did not convince’’ him that publication of ‘‘these historical documents would seriously breach the national security.’’ A Court of Appeals judge ordered that the TRO remain in place, however, and on June 22 the full Court of Appeals, voting five to three, ruled against the Times, remanding to Judge Gurfein to consider whether disclosure posed ‘‘such grave and immediate danger to the security of the United States as to warrant’’ an injunction.
On Friday, June 18, the government sought a TRO against the Washington Post. District Judge Gerhard Gesell denied the request, but within hours was reversed by a Court of Appeals panel. The following Monday, Gesell heard testimony and denied an injunction. Two days later the full Court of Appeals, voting seven to two, agreed that an injunction was not warranted.
The next day, Thursday, June 24, the Times and the government sought Supreme Court review of the New York and District of Columbia decisions, respectively. The Court granted review on Friday, consolidated the two cases, and heard oral argument on Saturday, a faster schedule than for any other case in its history. The Court released its decision on Wednesday, June 30. The setting, the clash of powerful forces, the intersection of law and politics, and the Court’s stunning speed made this a case rivaled as drama only by Bush v. Gore (2000) two decades later.
The justices were badly splintered. A barebones threeparagraph per curiam opinion merely stated that the government had not met the ‘‘heavy burden’’ required to justify a prior restraint. Each justice wrote an opinion; none was joined by more than two other justices.
Justice Black’s opinion, joined by Justice Douglas, was rhetorically stirring and doctrinally straightforward. Commending the newspapers for fulfilling their essential role in a democratic society, he called the injunctions a ‘‘flagrant, indefensible, and continuing violation of the First Amendment.’’ Black’s opinion, his last as a Supreme Court justice (and what he is reported to have considered his most important First Amendment opinion), was typical of his absolutist approach to free speech cases: Prior restraints are per se impermissible. Justice Douglas, joined by Black, also asserted that prior restraints are always unconstitutional. Acknowledging that the disclosures in this instance ‘‘may have a serious impact,’’ he stressed their importance to the political debate about the war and described ‘‘[s]ecrecy in government’’ as ‘‘fundamentally anti-democratic.’’
Justice Brennan articulated a standard that left some small room for prior restraints. Speech can be prospectively enjoined only if it will ‘‘inevitably, directly, and immediately’’ produce an extraordinary harm. That extremely high standard had not been met here.
Justices Stewart and White, who joined each other’s opinions, also thought the necessary showing for a prior restraint had not been made, although they found the case much closer. Stewart thought primary responsibility for balancing the secrecy necessary for effective foreign policy against the need for a wellinformed public lay with the executive itself. The judicial role was limited: absent a statute or regulations for the judiciary to enforce, courts could enjoin disclosure only on proof that ‘‘disclosure ... will surely result in direct, immediate, and irreparable damage to our Nation or its people.’’
Justice White was confident that further disclosures ‘‘will do substantial damage to public interests’’ but joined the majority because a prior restraint requires a particularly heavy justification, Congress had not authorized such a remedy, and, given the ‘‘massive breakdown in security,’’ the value of an injunction was ‘‘doubtful at best.’’ White stressed, however, that the First Amendment would not bar criminal sanctions and even identified provisions of the U.S. Code under which a prosecution might be brought. (A later prosecution of Ellsberg and Russo was dismissed because of government misconduct.)
Only Justice Marshall focused on separation of powers issues rather than the First Amendment. He concluded that the courts were powerless because Congress had neither prohibited the challenged conduct nor authorized the executive to seek an injunction.
Chief Justice Burger, Justice Harlan, and Justice Blackmun wrote dissenting opinions; Harlan’s opinion was joined by his two colleagues. All three strongly objected to the haste with which the courts had ruled. They would have enjoined publication to allow full trials and deliberate review. Each voiced concern over the harm that would flow from publication, Blackmun doing so with particular forcefulness. Only Harlan (who, like Black, was writing the final opinion of his career) articulated a legal standard. Describing judicial review of executive decision making in foreign affairs as strictly limited, Harlan argued that if a relevant department head personally determines that disclosure of certain information would ‘‘irreparably impair the national security,’’ the courts must accept that determination. The judicial role would be only to ensure that a foreign relations concern is present and that an authoritative determination has been made.
Assessments of the decision’s impact are mixed. Almost universally at the time, and in general since, the Pentagon Papers Case has been considered a major victory for press freedom. Yet this is in part the result of how it looked (and how the press, including the victorious litigants, portrayed it). The lack of consensus among the justices, the emptiness of the per curiam opinion, and the fact that three justices in the majority would probably have voted the other way had the case not involved a prior restraint and/or had Congress authorized an injunction, combine to limit the case’s doctrinal impact. Still, the rejection of Justice Harlan’s approach was enormously important, and the case stands out as one of the few instances in which the Supreme Court has not yielded to the government’s claim that a particular limitation on civil liberties was necessitated by concerns of national security. The opinions, the outcome, and the extraordinary speed with which the Court acted sent three influential messages: hostility to prior restraints, the need for independent judicial evaluation of the government’s claims of necessity, and the importance of the press to a functioning democracy.
The incident was of enormous historical importance. In direct and indirect ways it led to Watergate and so, ultimately, President Nixon’s resignation. Creation of the Special Investigations Unit known as the ‘‘The Plumbers’’ in July 1971 was a response to the leak of the papers, and one of its early undertakings was the September 1971 burglary of Ellsberg’s psychoanalyst’s office. Nixon’s preoccupation with leaks, hatred of the press, paranoia, and aggressive attacks on his political enemies—the attitudes and activities that led to his downfall—shifted from simmering to full blown with the Pentagon Papers fight.
MICHAEL E. HERZ
References and Further Reading
Cases and Statutes Cited
See also Absolutism and Free Speech; Access to Government Operations Information; Balancing Approach to Free Speech; Bartnicki v. Vopper, 532 U.S. 514 (2001); Classified Information; Freedom of the Press: Modern Period (1917–Present); Haig v. Agee, 453 U.S. 280 (1981); National Security and Freedom of Speech; National Security Prior Restraints; Philosophy and Theory of Freedom of Expression; Political Correctness and Free Speech; Self-Governance and Free Speech; Snepp v. United States, 444 U.S. 507 (1980); United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979)