New York Times Company v. U.S.

: 1971
Appeiiant: The United States

Defendant: The New York Times Company

Appeiiant's Ciaim: That the government's efforts to prevent the New York
Times from publishing certain Vietnam War documents known as the
"Pentagon Papers" were justified because of the interests of national security
Ciiief Defense Lawyers: Alexander M. Bickel and William E, Hegarty
Chief Lawyers for Appeiiant : Daniel M. Friedman, Erwin N. Griswold, and
Robert C. Mardian

Justices: Hugo L. Black, Harry A. Blackmun, William J.

Brennan Jr., Warren E. Burger, William 0. Douglas, John M. Harlan, Thurgood

Marshall, Potter Stewart, and Byron R. White
Date of Decision: June 30, 1971

Piace: Washington, D.C.

Decision: The government cannot

restrain the New York Times from publishing the Pentagon Papers.
SIGNiFiCANCE
In New York Times Company v. U.S.. the Supreme Court held that the government
must meet a heavy burden of justification before it can restrain the press from
exercising its First Amendment right to publish.

n the spring of 1971. the Vietnam War was still raging despite the fact that
popular opinion was against President Richard Nixon's administration's efforts to keep the United States in the confliet. Opposition to the war .spread
throughout the armed forces themselves and into what has been called the
military-industrial complex. This opposition sentiment affected one man in
particular, a former employee of the U.S. Department of Defense who had also
worked for the Rand Corporation, an important military contractor. His name
was Daniel Ellsberg.
Ellsberg and a friend, Anthony Russo, Jr., stole a copy of a massive, 47volume study prepared by the Department of Defense titled "History of U.S.
Decision-Making Process on Vietnam Policy." The study had more than 3.000
pages, supplemented with 4,000 more pages of source documents. Ellsbcrg and
Russo also stole a one-volume study titled "Command and Control Study of the
Cnilf of Tonkin Incident," prepared in 1965. These studies were essentially a
massive history of American involvement in Vietnam since World War 11, and
were classified "TOP SECRET-SENSITIVE" and "TOP SECRET" respectively.

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Ellsberg and Russo passed these studies on to two newspapers, the New
York Titnes in New York City and the Washington Post in Washington, D.C.
Neither paper was involved in the theft of government documents. In its
Sunday. June 1.^. 1971, edition, the Times began a series of articles containing
excerpts from the studies, which were dubbed the "Pentagon Papers." The Times published more articles on June 14 and 15.

The Government Moves to

Stop the Leak
On June 15. 1971. the government
asked the U.S. District Court for the Southern District of New York to restrain the
Titnes from publishing any more of the Pentagon Papers, 'i'he court refused to issue an
injunction against the Times but did grant a
temporary restraining order against the
Times while the government prepared its
case. On June 18, the Post also published
portions of the Pentagon Papers, and the
government promptly began proceedings in
the District of Columbia to restrain that paper as well. The focus of the Pentagon Papers dispute, however, remained with the
legal proceedings against the 'Titnes in New
^'ork City.
On June 18. 1971. the district court
held a hearing. The government presented
five experts on national security, who testified that publication of the Pentagon Papers
would compromise the war effort. T he next
day, district court Judge Murray I. Gurfein
issued his decision, in which he again refused to issue an injunction against the
Times:
Daniel Ellsberg released
the highly confidential
"Peniagon Papers" to the
Hew York Times and the
Washington Post, thus
setting in motion an
important freedom of the
press decision. (BettyeLane)

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I am constrained to find as a fact that the . . . proceedings at which

representatives of che Department of State. Department of Defense and the
Joint Chiefs of Staff tcstitied, did not convince this Ciourt that tht- publication of these historical documents would seriously breach the national
security. It is true, of course, that any breach of security will cause rhe jitters
in the security agencies chcnisclvcs and indeed in foreign governments who
deal with u s . . . . Without revealing the content of the testimony, suffice it to
say that no cogent reasons were advanced as to why these documents except
In the general framework of embarrassment previously mentioned, would
vitally affect the security of the Nation.

Gurfein did, however, prevent the Times from publishing any more of the
Pentagon Papers while the government hurried to file its appeal with the U.S.
Clourt of Appeals for the Second Circuit (which covers New York). Onee the
appeal was filed. Circuit Judge Irving R. Kaufman continued the temporary
restraint against the Times until the government could argue its ease, which
happened June 22,1971. Usually, only three circuit judges hear an appeal, butin
an unusual procedure all eight second circuit judges were on the bench that day.
They listened to the government's claim that the Pentagon Papers' release
would hurt national security, and the Times' defense that the First Amendment
protected its publication of the excerpts.

1971
New York Times
Company v. U.S.

The next day, June 23, the appeals court refused to give the government
the injunction it wanted. On June 24, the government filed a petition with the
Supreme Court. On June 25, the Court ordered the government and the Times to
appear before the Court in Washington on the 26th for a hearing.
The Times' lawyers were Alexander M. Bickel and William E. Hegarty.
I he government's lawyers were Daniel M. Friedman, LLS. Solicitor General
Erwin N. Griswold, and Robert C. Mardian. The two sides argued their positions before Justices Hugo L. Black, Harry A. Blackmun, William J. Brennan, Jr.,
Warren E. Burger, William O. Douglas, John M. Harlan, Thurgood Marshall,
Potter Stewart, and Byron R. White.

Supreme Court Throws Out Government's Case

The Pentagon Papers case was a litigation whirlwind, beginning on June
15, 1971, and ending just over two weeks later, after having traveled through
three courts, when the Supreme Court issued its decision on June 30, 1971. By a
6-3 vote, the Court slammed the door shut on the government's attempt to stop
the Times from publishing the Pentagon Papers, with Justice Blaek stating:
In seekinK injunctions against these newspapers and in its presentation to
the Court, the Kxecutive Branch seems to have forgotten the essential
purpose and history of the First Amendment. . . .
Yet the Solicitor General argues . . . that the general powers of the Government adopted in the original Con.stitutin should be interpreted to limit and
restrict the specific and emphatic guarantees of the Bill of Rights. . . . I can
imagine no greater perversion of history. Madison and the other Framers of
the First Amendnient. able men that they were, wrote in language they
earnestly believed could never be misunderstood: "Congress shall make no
law . . . abridging the freedom . . . of the press
" Both the history and
language of the First Amendment support the view that the press must be
left free to publish news, whatever the souree, without censorship, injunctions, or prior restraints."
Not only did the Court reject the government's national security argument, but it criticized in no uncertain terms the Nixon administration's attempt
to subvert the First Amendment. The role of the federal courts in the division of
powers set up by the Constitution, namely as the judicial branch of government

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charged with the responsibility of protecting individual rights, was also reaffirmed:
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791.
Now. for the first time in the 182 years since the founding of the Republic,
the federal couris are asked to hold that the First Amendment docs not mean
what it says, hut rather means that the government can halt the publication
uf current new.s of vital importance to the people of this country.
Chief Justice Burger and Justices Blackmun and Haran dissented, arguing
that the Court should defer to the executive branch's conclusion that the
Pentagon Papers leak threatened national security.
The Court also dismissed the government's legal actions against the Post.
The Pentagon Papers proceedings were not over yet, however. I^he government
obtained a preliminary indictment against Ellsberg on June 28,1971 for violating
criminal laws against the theft of federal property. More formal indictments
came against Fllsberg, and Russo as well, on December 30, 1971. In addition to
theft, the government charged Ellsberg and Russo with violations of the federal
Espionage Act.
*

Government Thwarts Own Prosecution of Elisberg

The criminal prosecution involved 15 counts of theft and espionage
against Ellsberg and Russo. Ellsberg faced a possible 105 years in prison and
$110,000 in fines if convicted. Russo faced a possible 25 years in prison and
$30,000 in fines if convicted. The two men were tried in the U.S District Court
for the Central District of California, which includes Los Angeles, where they
were alleged to have stolen the Pentagon Papers.
The judge was William Matthew Byrne, Jr. The case was stalled for over
five months with pretrial procedural activities, but jury selection finally began in
June 1972. It took until July 1972 for a jury to be formed and the trial to begin,
but the trial was halted almost immediately after it began when it was revealed
that the government had been seeretly taping the defendants' confidential
communications. Supreme Court Justice Douglas, who was responsible for
hearing emergency appeals from the Ninth Circuit, which includes Los Angeles,
ordered the trial halted until October.

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In fact, it was not until January 17, 1973, that the Elisberg and Russo trial
resumed. A whole new jury had to be selected. Further, the ease was now
overshadowed by the Watergate scandal. On September 3, 1971, 0 . Gordon
Liddy and E. Howard Hunt, Jr.. led a group of (>uban exiles in a break-in of the
offices of Dr. Lewis Fielding, which were located in Beverly Hills, California.
Fielding was Ellsberg's psychoanalyst, and the White House-sponsored breakin team was hoping to discover the identity of other Ellsberg accomplices from
Fielding's files. The break-in was a total failure: there was nothing in Fielding's
files.

When news of the government-sponsored bugging of the Democratic

Party's headquarters in the Watergate hotel and office complex in Washington
broke sometime later, it was only a matter of time before the special Watergate
prosecutors learned of the Fielding break-in. This information was publicly
revealed April 26, 1973, after the Ellsberg and Russo trial had been dragging on
for months without any sign of an imminent conclusion.
At first, Byrne didn't want to consider dismissing the charges against
Elisberg and Russo. The government had invested a great deal of time and
money in the prosecution. Then, after April 26, there were further revelations
that the government had been conducting mote illegal wiretaps of Ellsberg's
conversations than had previously been admitted. In disgust, Byrne dismissed
the entire criminal prosecution against Ellsberg and Russo on May 11, 1973.

1971
New York Times
Company v. U.S.

Byrne's final dismissal of the charges against Ellsberg and Russo ended the
Pentagon Papers affair. The significance of the entire episode is embodied in the
Supreme Court's rejection of rhe government's attempt to prohibit the Times
from publishing the news. Although the government will not necessarily always
lose a case based on the alleged interests of national security, under New York
Times V. U.S. it must meet a heavy burden of justification before it can restrain
the press from exercising First Amendment rights.
Stephen G. Christianson

Suggestions for Further Reading

Mciklejohn Civil Liberties Insiituce. Pentagon Papers Case Collection: Annotated Procedural Guide and
Index. Berkeley, Calif.; Mciklcjohn VAvW Liberties lnscituce, 1975.
Salter, Kenneth VV. The Pentagon Papers Trial. Berkeley, Calif.; Editorial Justa Publications, 1975.
Schrg. Peter. Test of Loyalty: Daniel FJlsberg and the Rituals of Secret Government. New York: Simon &

Schuster, 1974.
lingar, Sanford J. The Papers & the Papers: an Account of the Legal and Political Battle Over the Pentagon
Paper. New York: Columbia University Press. 1989.

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