First Amendment Friday 14 – New York Times V US, The Pentagon Papers.

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Happy Friday and welcome to the 14th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:

Originally posted at

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

First Amendment Friday 5 – Bridges V California

First Amendment Friday 6 – Planned Parenthood V ACLA

First Amendment Friday 7 – New York Times V Sullivan

First Amendment Friday 8 – Butts V Curtis

First Amendment Friday 9 – Gertz v Welch Inc.

First Amendment Friday 10 – Hustler V Falwell

First Amendment Friday 11 – Bartniki V Vopper

First Amendment Friday 12- Landmark V Virginia

First Amendment Friday 13 – Nebraska Press Assoc. V Stuart

This week we look at a fairly famous case, New York Times V United States. This is the case arising from the publication of the Pentagon Papers. For those who don’t know this the Pentagon Papers were a huge internal review of the actions up to 1968 in the Vietnam war. It was 47 volumes and about 7,000 pages long. The Dog is going to condense this ruling for you, but this week especially he is going to recommend you go and read all the opinions and dissents in whole. It is worth your while.

The Case:

United States filed for an injunction against the New York Times publishing any more of the Pentagon papers with in days of the paper starting a major series on the report. The Washington Post started its own similar series, and the United States filed for an injunction against that paper as well.

The Facts:

The New York Times acquired a stolen copy of the Pentagon Papers from an insider at the Pentagon. They knew it was classified and also stolen at the time they acquired it.

The Times then spent three months reviewing and researching the 7,000 page document. The Times then started to publish their massive series on this massive document.

Procedural History:

Cases were brought in both the New York District Court denied the injunction.

The United States Appealed to the 2nd Circuit which granted the injunction.

The Times appealed to the Supreme Court to overturn the 2nd Circuit

The District Court of DC denied the injunction.

The United States appealed to the DC Court of Appeals who also denied the injunction

The United States appealed to the Supreme Court to overturn the DC Court of appeals.

All of this was done with a strong sense of urgency and within a few days.

The Legal Issue:

Does the First Amendments protections of freedom of the press extend to the level of prior restraint on publishing true information which has been classified and obtained illegally?

The Opinion:

This opinion is what is called per curiam, which literally means “from the Court”. The reason for this is every single justice wrote either a concurring opinion or a dissenting one on their own! The Dog is going to give you the entire opinion here and then highlights from the Justices for and against.

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.” Post,.

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 70 (1963); see also Near v. Minnesota, (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, , 419 (1971). 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.

Basically here the Court is saying the DC Courts were correct in saying the Government had not met the very high standard for prior restraint of the press.

Justice Black left no question he was less than happy about even seeing this case. Here is the first paragraph of his concurring opinion:

I adhere to the view that the Government’s case against the Washington Post should have been dismissed, and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view, it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

Pretty harsh words for he fellow Justices who dissented in this case. Justice Blacks main point is this case to him is so black and white it should have never made it to the Supreme Court in the first place.

He takes the Governments contention of  “inherent power” based on the war making powers of the President apart neatly then ends with:

The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes — great man and great Chief Justice that he was — when the Court held a man could not be punished for attending a meeting run by Communists.

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.

Justice Douglas goes even further in taking apart the Governments “inherent power” argument. He writes:

The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which, in this case, is alleged to be national security.

Near v. Minnesota, , repudiated that expansive doctrine in no uncertain terms.

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). 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.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate. New York Times Co. v. Sullivan,.

The Justice is saying the combination of the intent of the Framers to have an informed electorate on the issues of the day and the case law from New York Times v Sullivan show clearly the Government has no legal grounds to stand on in its contention of “inherent power”.

Justice Brennan lays out where he feels this whole thing went wrong when he writes:

The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined “could,” or “might,” or “may” prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.

The Government never showed any actual harm, they placed their desire for this injunction on the potential for harm. This cuts no ice with Justice Brennan, and it should not. In the United States, as a general rule, you have to act before remedy can be sought through the law. This is what protects people when they say inflammatory things they are not going to take action on and it is what should protect the New York Times here. Until they act the Government has no way of showing harm, thus there is no remedy to be had.

Justice Brennan concludes:

In no event may mere conclusions be sufficient, for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And, therefore, every restraint issued in this case, whatever its form, has violated the First Amendment — and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.

Justice Stewart goes after the root of the problem. There is a balance between the need of an informed electorate and the performance of duties of the Executive Branch in being able to have some of its interactions with other countries not know in every specific detail. He notes there is some need for some secrecy. Then he puts the blame on the Government.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.  If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then, under the Constitution, the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But, be that as it may, it is clear to me that it is the constitutional duty of the Executive — as a matter of sovereign prerogative, and not as a matter of law as the courts know law — through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.

Here the Justice is saying it is the Governments fault, not the New York Times, that the information got out in the open. He takes them to task for the level of secrecy the Nixon Administration was practicing and then tells them if they don’t like this state of affairs, they should do better in keeping tabs on information they do not want published. The point is, the power of the Government to control information ends when the information gets to the press.

Justice Stewart ends with:

But in the cases before us, we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.

What Justice Stewart is saying here is the Executive Branch is asking the Court to extend its own power in support of the Executive Branch. There were no laws preventing the publishing of this type of information, in fact Congress had turned down language which would have done specifically that. This being the case, the Court has nothing to base a ruling in favor of the Government on.

The Dissents

The primary complaint of the dissenting Justices was one of the speed at which these ruling were made. They feel as a group there was not enough time for the process of the law, which is just as important as the letter of it, to be followed.

Chief Justice Burger writes:

These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?

I suggest we are in this posture because these cases have been conducted in unseemly haste. MR. JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed, and I need not restate them. The prompt setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.

He then lays the blame for the speed on the New York Times. In a way it is understandable for the Times to be in such a hurry. In their case they were enjoined, while the Washington Post was not. The Times had invested a lot of time and effort in their series and were about see that investment become a sunk cost, by losing their scoop.

Justice Harlan is concernedabout the legal issues which should have been decided prior to the Supreme Courts review that were not allowed to be settled. He lists them:

1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare In re Debs, (1895), with Youngstown Sheet & Tube Co. v. Sawyer, (1952). This question involves as well the construction and validity of a singularly opaque statute — the Espionage Act, (e).

2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, , 716 (1931) (dictum).

3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that, regardless of the contents of the documents, harm enough results simply from the demonstration of such a breach of secrecy.

4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security.

5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.

6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government’s possession, and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, (1967, amended 1968).

7. Whether the threatened harm to the national security or the Government’s possessory interest in the documents justifies the issuance of an injunction against publication in light of —

a. The strong First Amendment policy against prior restraints on publication;

b. The doctrine against enjoining conduct in violation of criminal statutes; and

c. The extent to which the materials at issue have apparently already been otherwise disseminated.

These are some weighty issues which this case could have resolved to some level or another, but without the lower Courts finishing their work in the normal matter, the Supreme Court did not have all the normal levels of finding of fact they rely on. This is what leads Justice Harlan to dissent from the Majority.

Justice Blackmun talks about the nature of the conflict between the First Amendment and Article II of the constitution. He points out the High Court has recognized the First Amendment is not absolute in the past and then suggests what should be done:

I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far.

It may well be that, if these cases were allowed to develop as they should be developed, and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation, and contrary considerations, for me, might prevail. But that is not the present posture of the litigation.

So there you have it. The Pentagon Papers were published in both the New York Times and the Washington Post. Eventually 4000 pages were entered into the record in the Senate, forever preventing anyone from being prosecuted for revealing them as Senators can not be held criminally libel for their words or record under the Constitution.

What do you think Citizens, which side was right here? The Dog thinks both sides were. It is true there is a need for the unfettered press which the majority upheld. It is also true once there is information out (with the very narrow exception of troop movements and the like) the Government is out of luck in terms of having a right to suppress it.

However, this case was a total of three weeks from first hearing to Supreme Court decision. Law is not meant to be a snap judgment kind of thing.  The Dog would, like Justice Harlan, very much like to have had his seven points decided in court, with the appropriate back and forth which leads, more often than not, to truth in our system of law. The sensational nature of some of the revelations in the Pentagon Papers and the nature of an unpopular war and a embattled and secretive president lead to slap shot of a decision by the High Court. While it seems to have worked out, this should very much be the exception and not the rule.

The floor is yours.

House keeping: As always, thanks to Cornell Universities Legal Information Institute for the writings of the Justices. You can find today’s ruling here.


  1. but rather what caused a case to come before them in the first place. What do you think?  

  2. The reason that it had to be expedited was that other publications (The Boston Globe and Christian Science Monitor come to mind) started publishing their own stories. Since they were not bound by the original injunction, the Times and the Post were unduly harmed.

    The Papers were copied by Daniel Ellsberg and Anthony Russo, who spend the next two years under indictment for theft and treason. They were only exonerated in 1973 after all of Nixon’s other dirty tricks were exposed.

    Ellsberg actually had the documents for many months. He tried to get members of Congress interested but they could have cared less. Going to Neal Sheehan of the Times was a last resort. Ellsberg, who was one of the original authors of the Papers, tried to go through official channels.

    Initially, Nixon thought about not prosecuting since the Papers (actually a report produced by the Rand Corporation) did not cover his time in office and he thought that it would be an embarrassment to the Democrats since it only covered the Johnson and Kennedy years. In the end, Nixon’s paranoia got the better of him.

    The Time’s initial article on June 13, 1971 was published the same day as the wedding announcement of Nixon’s daughter, which happened the previous day.

    Mike Gravel was the one who read the Papers into the congressional record after  he convened a subcommittee that he chaired. Raw video of the meetings is available on YouTube.

    A subsequent review by Congress found that about one half of one percent of the report was properly classified as “Top Secret” and this classification system was another point the courts considered.

    Great job as always, Dog and it turns out I will probably see you in Pittsburgh anyway.

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