Primary Source: The Pentagon Papers Case (1971)

The New York Times and The Washington Post both gained access to the so-called “Pentagon Papers”— a classified Defense Department study that examined the history of U.S. involvement in Vietnam. Daniel Ellsburg was employed at the RAND Corporation, and he worked on the report. Eventually, he photographed thousands of pages of the report and sent it to a New York Times reporter. In 1971, the Times began publishing it. Arguing that these news reports endangered national security, the Nixon Administration went to court to try to block newspapers from continuing to publish the Pentagon Papers. In a per curiam decision (meaning one written “by the court as a whole”), the Supreme Court rejected the Nixon Administration’s efforts—concluding that the Administration could not overcome the “heavy presumption against” prior restraints, or efforts by the government to block others from publishing information in the first place. In America, there was a long tradition, extending back to the Founding generation, opposing these kinds of limits on the freedom of the press. As a result, the newspapers could continue to print the Pentagon Papers. The Pentagon Papers Case reaffirmed a value at the core of the First Amendment—the freedom of the press to criticize the government and check abuses of power.

“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. . . .

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 courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. . . . They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge.

[The government] argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, 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 source, without censorship, injunctions, or prior restraints.

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. . . .

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.

So clear are the constitutional limitations on prior restraint against expression that, from the time of Near v. Minnesota . . . (1931), until recently in Organization for a Better Austin v. Keefe . . . (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government, and, specifically, the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances – a view I respect, but reject – can find such cases as these to be simple or easy….

I suggest we are in this posture because these cases have been conducted in unseemly haste. . . . The prompt setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste….

Would it have been unreasonable, since the newspaper could anticipate the Government’s objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not, in fact, jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach – one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press – the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary.