New York Times vs. U.S. (1971)

This case came at a time when America was at unrest. A
controversial war had divided the country. Opinions and arguments
about whether the US involvement in Vietnam was warranted occupied the
minds of American citizens. The people were hungry for information
regarding the war. The Pentagon Papers, somehow leaked to the New York
Times and Washington Post, fulfilled this need of the people for
information. The government's assumption of prior restraint seemed to
be a major blow to free speech and a sharp addition to the power of
the government. The appellate courts' indecisiveness brought the
ultimate decision to the Supreme Court. There was a deep division of
opinion even among the Justices, and their decision landmarked what
had been previously uncharted waters. The background to this landmark
case has at its roots U.S. policies in Southeast Asia. These policies,
which eventually led to the Vietnam War, were sharply criticized in a
study authorized by Secretary of State Robert S. McNamara in 1967.
This 47-volume study, officially named History of United States
Decision-Making Process on Viet Nam Policy, have come to be known as
the Pentagon Papers. These papers detailed the entire history of our
involvement in Vietnam from World War II to the beginning of the Paris
peace talks. Daniel Ellsberg, an employee of a California think tank,
was given access to this study. This think tank held Defense
Department contracts to analyze American strategy in Vietnam. Ellsberg
had become convinced that our involvement in Vietnam was a mistake,
and that American forces should be withdrawn immediately. Ellsberg and
a man named Anthony Russo then photocopied the papers in a Los Angeles
advertising office. Believing that these papers strongly supported his
views, Ellsberg delivered a copy of the Pentagon Papers to Senator
William Fulbright, chairman of the Senate Foreign Relations Committee.
Still however, neither party made the papers public. Somehow copies of
the documents were obtained by the New York Times, and in June 1971
they began publishing a series of articles based on the study. Nearly
immediately a telegram was issued to the Times by the Attorney General
John Mitchell ordering that it halt publication. The Times refused,
and the government brought suit against them. Thus began a remarkably
swift journey of justice ending at the Supreme Court. The first court
decision, issued by NY federal district court Judge Gurfein, was in
favor of the Times. However, the federal appellate court reversed this
decision and ordered the newspaper to halt publication. Meanwhile, the
Washington Post had obtained copies and had begun to print them, and
the government brought suit against them as well. The US Court of
Appeals for the District of Columbia decided not halt publication. The
case was picked up by the Supreme Court in late June, just 11 days
after the first suit. This was the first attempt by the federal
government to restrain the publication of a newspaper, but in 1931 the
state government of Minnesota had made such an attempt. Near vs.
Minnesota involved an anti-Semetic newspaper carrying on a smear
campaign against local officials. Here the Supreme Court laid the
precedent of prior restraint. The Court ruled that a prior restraint
of publication would be allowed only in the most exceptional cases.
That is, one that threatened "grave and immediate danger to the
security of the United States." From the government's point of view,
the Times case was such an exceptional case. The government's case
rested on four arguments. The first was that many of the documents
were stamped TOP-SECRET. The second argument was the fact that the
papers were stolen, and the newspapers had no right to have them, much
less publish them. Also, disclosure of the papers' contents, such as
the United States' involvement in the assassination of South Vietnam
President Diem, would embarrass the nation. Finally, release of the
inside information on the United States' approach to peace talks would
hinder them and prolong the war. The newspapers arguments were fewer
and shorter, but much more powerful in the minds of Americans and, as
it turned out, the Supreme Court. First and foremost was the First
Amendment's guarantee of free press, that is "Congress shall make no
law..abridging freedom of speech or of the press." The second was that
there was an inherent danger in allowing the government to censure the
news. Finally, the fact