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and that American forces should be withdrawn immediately.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 that the public had a right to know what the 
government was doing. The Supreme Court ruled 6-3 in favor of the 
newspapers. The Court held that there was a heavy burden on the 
government in that all prior restraint on publication are 
unconstitutional under the First Amendment, and that the government 
had not overcome this burden. There was a deep division of opinions in 
the Justices, and as such each wrote a separate opinion. The six who 
voted against a restraint differed in their reasons. Half - Justices 
Black, Douglas, and Marshall, felt that a prior restraint would never 
be constitutional. The others - Justices Brennan, Stewart, and White - 
felt that a prior restraint would be constitutional in cases where an 
extreme danger was present to security of the US, but that the 
government had not proven that the papers' publication would create 
such a danger. The three who voted for closure of the papers - 
Justices Blackmum and Harlan, and Chief Justice Burger - supported the 
President's decision that disclosure of the documents would harm the 
national interests. They felt that since the conduct of foreign 
relations and national defense was under the realm of the executive 
branch, the judicial branch should not question the President's 
decision. Daniel Ellsberg and Anthony Russo were indicted for 
conspiracy, theft of government property, and for the violation of the 
Espionage Act. However, the misconduct of the great president Nixon 
and his little helpers - the "Plumbers" - in their dealings with 
Ellsberg essentially absolved Ellsberg and Russo. The "Plumbers" had 
done all kinds of activities, including illegal wiretaps and seizures, 
which in the opinion of federal Judge Matt Byrne, "offended a sense of 
justice." The case of New York Times Co. vs. United States was in fact 
a landmark case in the American judicial system. It was the first 
attempt by the federal government to restrain the publication of a 
newspaper. Not only was it a major test of the interpretation of the 
First Amendment, but it came at a crucial time in American history. 
The events and subsequent disclosures of the Watergate cover-up were 
unfolding, and many were beginning to question the power of the 
government. This was a major victory for free expression in America.