On June 30, 1971, the Supreme Court overturned the Nixon administration’s effort to restrain The New York Times and The Washington Post from publishing a top-secret history of the Vietnam War called the Pentagon Papers.
Six justices accorded an unsigned opinion which quoted from two other decisions – “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” and thus reached to the conclusion which stated:
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.
Publication of papers, which was paused since June 15 under court orders was resumed in New York. The Times had managed to carry out three installments of the series, called the Vietnam Archive before the government shut it down sure to which much of the expose remained unpublished.
What made the Pentagon Paper standout was that The Times did not just provide interpretive articles but also presented documents themselves, as leaked by Daniel Ellsberg, a military analyst who had worked on the history. The documents congested of cablegrams, memorandums, drafts of policy papers, instructions and transcripts.
Neil Sheehan, the chief reporter of the series, said “The documents are the written words of the men who set the armies in motion and launched the warplanes. The written words are immutable, engraved now in the history of the nation for all to examine.”
But the government was nevertheless tossed for publishing classified documents about the prosecution of war, even though they were at least three years old at the time.
Harding F. Bancroft, the executive vice president of The Times, warned the publisher, Arthur Ochs Sulzberger, in a memo on June 10 stating, “The Joint Chiefs are likely to believe that, for the integrity of the security of their procedures, they must act.”
However, Sulzberger asked A.M. Rosenthal, the managing director to go ahead with the full series, documents and all. But he head one complaint, he felt that the stories he saw were overwritten and “unnecessarily complicated” and needed to be edited.
The White House dashed on Monday, June 14 at 8:30 p.m., when a cablegram addressing to Mr. Sulzberger with the signature of Mr. John N. Mitchell, the attorney general of Mr. Nixon, arrived at The Times.
Without any accosting, John N. Mitchell began, “I have been advised by the secretary of defense that the material published in The New York Times on June 13, 14, 1971, captioned ‘Key Texts from Pentagon’s Vietnam Study,’ contains information relating to the national defense of the United States and bears a top secret classification. As such, publication of this information is directly prohibited by the provisions of the Espionage Law, Title 18, United States Code, Section 793.
“Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States.
“Accordingly, I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense.”
The Times, which had no plans to comply, mentioned in a statement in its newspaper, “The Times must respectfully decline the request of the attorney general, believing that it is in the interest of the people of this country to be informed of the material contained in this series of articles. We have also been informed of the attorney general’s intention to seek an injunction against further publication. We believe that it is properly a matter for the courts to decide. The Times will oppose any request for an injunction for the same reason that led us to publish the articles in the first place. We will of course abide by the final decision of the court.”
The admonition came the next day in a complaint that held defendants seven reporters and editors credited with the series and fifteen executives listed on the newspaper’s Banderole. John Crewdson and Barbara Dubvisky of The Washington bureau quickly retorted, printing hundreds of buttons that said “Free The Times XXIV” and “Free The Times 22”.
Within two weeks, the case made its way to the Supreme Court surprising everyone who was involved and oral arguments by The Times legal team headed by Alexander M. Bickel, was heard on Saturday, June 26.
In their haste to decide a fast moving case, the justices hardly had the time to sit and discuss their opinions and therefore could not develop a consent needed for a unified voice. As a result, 6-to-3 decisions that followed were all disorganized.
But at the end of all the confusion and haste, The Times achieved victory when in 1971, the Supreme Court allowed publication of Pentagon Papers.
The publication of Pentagon papers was the first step towards ending the prior restraint tool that the government used for the information that it did not want the common people, like you and me, to know.
New York Times later went on to win the prestigious Pulitzer prize for the publication of Pentagon Papers.
Truth, ultimately triumphs over ignorance.