Landmark Cases: Pentagon Papers Cases

We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.

Removing case cites, and there weren't that many, this is the whole "per curiam" or  "for the court" opinion in NYT v. U.S. and its companion case involving the Washington Post (see also, the film The Post; that paper won below, so there was in fact a split).  The whole affair -- publishing, injunction, three levels of appeals and Supreme Court decision all occurred in June.  The final ruling was 6-3, the split in effect 3-3-3.  Inside the Pentagon Papers, with multiple conversations with the players and an analysis of just how dangerous they were, is a good summary.

The basic floor of the freedom of the press is the prevention of "prior restraints," licensing of what can be published the basic sin historically the concern here.  Near v. Minnesota (1931) (5-4) made this clear, stopping a prior restraint even if it was found that a newspaper was some sort of public nuisance. Go after them after they publish. Exceptions? Well:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.  On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

Justice Douglas in his separate opinion -- there were nine -- noted the Vietnam "War" was not a declared war. But, it is unclear that is the true line since neither was the Korean "War," correct?  A key WWI case involved "recruiting service," but by the 1970s, strong criticism that interfered with that in some fashion surely would not be illegal.  The others are more tricky and the press did stay silent about the Bay of Pigs.  And, on of the cases cited in the Pentagon Papers case involved obscenity, a case that left open the possibility of some sort of licensing law to guard against obscenity. How much was left of that is unclear and obscenity itself isn't protected.

The other case cited by the per curiam regarding the high test before prior restraints could be brought is a fairly interesting one. It involved a real estate broker who was targeted for alleged discriminatory activities, whose very church and neighborhood was targeted. But, this alleged invasion of privacy was not enough to stop the petitions.  A ban on picketing of a home was treated differently.  But, picketing is a type of "speech plus."  And, the materials here were historical information, even thought (see that book I cited for a counter) it was argued diplomatic activity would be threatened and some of the material would give hints about current military matters.

A person involved in the production of the papers himself, Daniel Ellsberg, leaked them, after he could not get Congress to do so. In the midst of the affair, Sen. Gravel found a way to submit them into the record.  Ellsberg had to physically photocopy, using a copy machine in a travel office or something, page by page of thousands of pages (he held back some diplomatic volumes). Cf. Wikileaks that can be released so easily online to the world.  I find the current ability to leak in that fashion very concerning and felt Chelsea Manning, especially as a low level member of the military, was correctly prosecuted.  Put aside the length (the commutation was just) and treatment. Ellsberg honored her actions.

This case reminds me of the travel ban case. There, many think it as a matter of religious bigotry, a "Muslim Ban," so a First Amendment case.  But, the statutory case -- a matter of separation of powers really -- might be the strongest one.  I think both are involved and there is overlap since Congress guarded against discrimination.  The Pentagon Cases involves the press aspect of the First Amendment, but was also a statutory/separation of powers case. And, three justices in particular (Justice Marshall perhaps surprisingly the most) strongly relied on that. The executive claimed an executive power on its own to stop the presses. Statutory law if anything seemed to deny that power. Justice White (joined by Stewart) offered various criminal laws that might be usable.  But, acting on his own, especially with the First Amendment, Nixon didn't meet the test.*

The ruling itself is important since it has a special symbolism. Justices Black and Douglas took the absolutist position, Douglas leaving open a tiny window. Brennan focused on the lack of proof, it was all "surmise or conjecture," and cautioned about doing this again.  But, the others were more guarded, though Stewart (including his bit about over-classification) at times has quotable pro-openness lines.  He still joined White's concurrence that opened this way: "I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system."

Justice Harlan wrote the dissent joined by each of the dissenters, listing the various complications and complaining (as each did) basically "what's the damn rush?" Justices Black and Harlan soon were in the hospital and was not long on this earth.  Harlan argued that the executive had a special role as the voice of the country abroad and interference with diplomatic negotiations was basically a political question.  Burger was particularly upset that the papers retained stolen property.  Blackmun noted the First Amendment was but part of the Constitution and he was no absolutist.

Ellsberg and someone else was prosecuted but the case was dropped in large part because the government was caught breaking into his psychiatrist among other prosecutorial complications. The material as a whole was published in various forms, including by the government itself. The war lasted a few more years.  But, the papers added to the distrust of the govenrment and the lionization of the press.  And, the courts for that matter. Let's also give a nod to Robert McNamara for actually thinking up the idea of examining the Vietnam War to learn some lessons. He has a lot to answer for but this was an impressive move. 

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* The test was at one point cited as "grave and immediate danger." It is unclear, especially with the short time available, how one can determined that very well.  On that, the dissenters had a bit of a point. OTOH, it seems easy here in hindsight, especially when the government's own lawyer later said nothing printed met the test.  Plus, these were historical materials. 

But, how does one judge that? Stewart's famous question to Alexander Bickel during oral argument like "Joe Paulson" noted in a tweet read on air (ditto the Wikileaks point -- I'm amazed they quoted me so much; helps Twitter isn't used that much and I tweeted so much.  #LandmarkCases) is a bit of a trick. Sometimes, what is written very well might somehow lead to harm to others. Where is the line during a war? If an article leads to a battle that saves many lives but a few a lost, should the article not be written?.

Bickel and the other paper's lawyers did not take an absolutist position because they did not have to and because the Court was not filled with Blacks (luckily for them, this wasn't a school or Cohen's jacket).  They also had the statutory argument, which Douglas also touched upon from the press protective side.  He noted in a footnote that maybe one aspect of the statute might apply, but said the government did not used it. OTOH, White in particular gave almost a "how to" on prosecuting leaks.