Today marks the 50th anniversary of the Supreme Court’s decision in New York Times Co. v. United States, known as the “Pentagon Papers” case. The newspapers involved—the Times and the Washington Post—will treat the day as a national holiday.
And understandably so: In the most important legal case ever involving the clash between the government’s efforts to enjoin publication in the name of national security and the newspapers’ right to publish under the First Amendment, the newspapers prevailed.
With the benefit of hindsight, it may seem obvious that the newspapers’ right to publish would triumph. That isn’t because the press was beloved—Richard Nixon campaigned effectively against the press in a number of ways during his first term as President. Rather the newspapers’ victory at the Supreme Court seems to have been a foregone conclusion because the notion that the government is authorized to prevent publication is anathema in American law and politics.
It’s worth recalling that the newspapers’ victory in the Supreme Court in the Pentagon Papers case was not inevitable. In fact, the Court’s decision was not unanimous; three Justices dissented. They included Harry Blackmun, praised by liberals today as the author of the Court’s abortion decision in Roe v. Wade, and John Marshall Harlan II, a moderate Republican commended for his legal acumen. (Chief Justice Warren Burger, known for his support of President Nixon, was the third dissenter.)
Why did they dissent? In substantial part, the chaotic, breakneck pace of the litigation led these Justices to side with the government. The New York Times published its first article about the Pentagon Papers on June 13, 1971. Shortly thereafter the Department of Justice sued the Times in federal district court in the Southern District of New York, and the case rocketed to the Supreme Court in less than two weeks. Without sufficient time for consideration of the issues involved, the dissenting Justices deferred to the government’s national security concerns.
This article will provide a brief account of the Pentagon Papers litigation and show how the whirlwind pace contributed to the lack of consensus in the Court’s decision. The purpose of this article is to serve as a reminder of the challenges and complications attendant to a case that is celebrated by many today as, in the words of Adam Liptak, “a potent vindication of press freedom.”
This article draws on two excellent books: James C. Goodale’s Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, published in 2013, and David Rudenstine’s The Day the Presses Stopped: A History of the Pentagon Papers Case, published in 1996. Goodale was general counsel of the Times during the litigation and provides an incisive account of the case, while Rudenstine, a former dean of Benjamin N. Cardozo School of Law, assimilates a great deal of research in his absorbing history.
The New York Times Publishes
The Pentagon Papers refers to a secret 7,000-page history of the United States’ policies in connection with the Vietnam War commissioned by then-Secretary of Defense Robert McNamara in 1967. Completed in 1969, the papers detailed a history at odds with what the government had told the public. In 1971, Daniel Ellsberg, an analyst with the Defense Department who had turned against the war, provided many volumes of the papers to the New York Times.
As Neil Sheehan wrote in the Times, the Pentagon Papers were a “massive study of how the United States went to war in Indochina” that showed how “four administrations developed a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to protect the South, and an ultimate frustration with this effort—to a much greater extent than their public statements acknowledged at the time.”
Sheehan’s article ran on Sunday, June 13, 1971. (The second most prominent article on the front page that day was about President Richard Nixon’s daughter Tricia getting married in the White House garden the day before.) The Times published another article about the papers the next day.
The United States Sues in Federal Court in New York
Then, on June 15, the Justice Department sued the New York Times in federal court in the Southern District of New York and obtained a temporary restraining order preventing the newspaper from publishing any articles about the Pentagon Papers. The judge, Murray I. Gurfein, credited the government’s contention that publication of additional articles would damage national security.
Gurfein’s order restrained publication pending a hearing before him on June 18. In fact, there were two hearings that day—one, in public, in his courtroom, and another, in secret, in the basement of the courthouse at Foley Square. President Nixon had nominated Gurfein for the bench in April 1971 and he had been serving for less than a month when he was assigned the case. While initially sympathetic to the government, Gurfein became exasperated with the vagueness of its national security claims over the course of the hearings.
Accordingly, the judge denied the government’s request for a preliminary injunction in a decision issued on June 19. As Rudenstine summarizes:
Gurfein claimed that this case did not present a “sharp clash” between vital security interests and the rights of the Times to publish the disputed material, because “no cogent reasons were advanced as to why these documents except in the general framework of embarrassment . . . would vitally affect the security of the Nation.”
Recognizing that the government likely would appeal his decision, Gurfein entered a stay and continued the restraining order pending appeal. Irving Kaufman, a judge on the United States Court of Appeals for the Second Circuit continued the stay.
On June 22, after oral argument the day before, the Second Circuit reversed Judge Gurfein’s judgment denying the government’s request for an injunction against the Times and ordered him to conduct a further hearing on the government’s national security claims.
The Washington Post Publishes
On June 18, the same day as the hearings before Judge Gurfein, the Washington Post published an article about the Pentagon Papers. This led to a similar flurry of litigation in federal court in Washington, D.C.
There were at least two reasons for the accelerated pace of both cases. First, the newspapers invoked the First Amendment as a defense against the government’s requests for injunctive relief; absent compelling proof, they could not be prohibited from publishing. The second is that even as the government maintained its suits against the Times and the Post, other newspapers were publishing articles about the Pentagon Papers.
The Post, meanwhile, fared better than the Times in its litigation against the government. U.S. District Court Judge Gerhard Gesell initially ruled against the government’s request for a temporary restraining order and was immediately reversed by the D.C. Circuit Court of Appeals. However, after conducting a hearing on June 23, Gesell denied the government’s request for an injunction in a decision that was affirmed by the D.C. Circuit.
The Proceedings in the Supreme Court
Parties in both cases immediately filed appeals from the judgments entered by the federal circuit courts of appeals, and the Supreme Court heard oral argument on June 26. In 1971, the Court was in transition. It included two Justices appointed during the New Deal, Hugo Black and William O. Douglas, both known for their absolutist views on the First Amendment. For them, the phrase “no law” in the amendment really meant no law. The Court also included William Brennan and Thurgood Marshall, two liberal Justices sympathetic to the newspapers’ claims.
The newspapers, then, could be confident of four votes. What about the remaining Justices? Justice Potter Stewart was a moderate Republican. Goodale was optimistic that Stewart would vote in the newspapers’ favor. Stewart “had been a newspaper man,” serving as editor of the Yale Daily News and a summer reporter for the Cincinnati Enquirer, “and seemed to understand the press,” he writes.
Justice Byron White, appointed by President John F. Kennedy, also was a possible vote for the newspapers. However, as Goodale notes, White was “not as liberal as Kennedy” and “[a]s a former prosecutor, he was tough on crime.” The remaining three Justices—Harlan, Burger, and Blackmun—had been appointed by Republican presidents, the latter two by Nixon, were likely to be sympathetic to the government.
The Supreme Court’s Decision
Goodale notes that as the Times’s case proceeded on appeal, the government twice supplemented the record with items intended to bolster its national security claims. Technically this was improper—evidence should be introduced in the trial court, where it can be subject to cross-examination or objection. Because the record was supplemented at the last minute, the Times’s lawyers were unable to object.
Solicitor General Erwin Griswold may have fumbled the best argument he could have made about the evolving list of items said to illustrate the government’s national security concerns. Questioned by Justice White about the items in the government’s “special appendix,” Griswold said the hearing before Judge Gesell had been “hastily conducted.” This prompted Justice Harlan to ask a number of questions about the pace of the litigation.
According to Rudenstine, “Harlan’s questions gave Griswold an opportunity to emphasize more than he had so far that the haste of the litigation had prevented the government from presenting all of its evidence.” However, “Griswold did not make much of these matters.”
Ultimately, the standard the Court adopted for restraining the newspapers was so high that greater emphasis on this procedural point may not have made a difference. On June 30, the Court decided the case in favor of the newspapers. In a brief per curiam opinion, the Court stated, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” It noted that the government “carries a heavy burden” to obtain such a restraint and that the government had not met its burden.
In the end, Justices Stewart and White voted with the newspapers, resulting in a 6-3 decision in favor of the Times and the Post. Every Justice wrote an opinion concurring with or dissenting from the Court’s per curiam opinion.
Every dissenting justice noted the hectic pace of the case. Chief Justice Burger commented, “We do not know the facts of the cases,” while Justice Harlan complained that “the Court has been almost irresponsibly feverish in dealing with these cases.” Justice Blackmun lamented that the federal courts had “been pressed into hurried decision of profound constitutional issues.”
Those who celebrate the Court’s decision as a victory for the First Amendment emphasize that, even with the dissenters’ concerns, the Court nevertheless held that the First Amendment precluded restraint on publication, even in a hastily-litigated case involving competing claims regarding national security.
Yet they also likely recognize that the victory was not as decisive or as clear-cut as it could have been. Justices White and Stewart rejected the government’s request for a prior restraint but insisted that the government could still prosecute the newspapers under federal espionage laws. Their views also are part of the legacy of the Court’s decision in the Pentagon Papers case.