1971 June 30

Landmark Freedom of the Press Victory: Supreme Court Strikes Down Pentagon Papers Injunction

 

In New York Times Co. v. United States, decided on this day, the Supreme Court declared an injunction against The New York Times and the Washington Post from printing the Pentagon Papers to be an unconstitutional prior restraint on freedom of the press. The injunction had been viewed as arguably the most serious threat to freedom of the press in American history.

Daniel Ellsberg had leaked the Pentagon Papers to the Times, which began publishing a series of stories based on the papers on June 13, 1971. The government stopped publication with the injunction, claiming that the Papers contained information that would damage national security (June 15, 1971). In fact, officials had not read the complete Papers; and in later years, no information was ever found that would conceivably harm national security.

The story of the Pentagon Papers case sprawls out both before and after the Supreme Court case. Daniel Ellsberg’s theft and leak of the Papers was an important part of the anti-Vietnam War movement. As Ellsberg knew, the Papers confirmed the fact that the several presidential administrations had lied to the American people about the nature of the American military involvement in Vietnam. Publication of the Papers, he and others believed, would strengthen the anti-war movement.

Publication of the Papers, and the Supreme Court decision upholding their publication, meanwhile, drove the Nixon administration to greater abuses of power, including criminal actions, which ultimately led to President Nixon’s resignation in disgrace. A month after the Supreme Court decision, on July 24, 1971, the Nixon administration created the so-called “Plumbers” unit within the White House (“plumbers,” as in stopping leaks) to attack the administration’s critics. On September 9, 1971, in its first major operation, the Plumbers burglarized the office of Daniel Ellsberg’s psychiatrist in Los Angeles, hoping to find information that would discredit Ellsberg. (They found nothing of any use.) Some Nixon administration officials later stated that the burglary, the first criminal action, was the real turning point in the administration’s abuses of power.

Justice Hugo Black for the 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.”

Read: John Prados and Margaret Pratt Porter, Inside the Pentagon Papers (2004)

Read Daniel Ellsberg’s Memoirs: Secrets: A Memoir of Vietnam and the Pentagon Papers (2002)

Read the Government’s Secret Brief in the Case:
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/briefs.html

Learn more about the landmark 1931 case on prior restraint of the press: Fred W. Friendly, Minnesota Rag (1981)

Listen to the oral arguments in the Pentagon Papers case: http://www.oyez.org/cases/1970-1979/1970/1970_1873

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