In 1971, the Supreme Court was the stage for a clash between a government determined to keep its secrets, and a press determined to reveal them. When the Nixon administration sought to stop publication of the Pentagon Papers — a comprehensive, unvarnished history of U.S. involvement in Vietnam — it triggered a showdown over whether the First Amendment truly protects the press when the government cries “national security.” The Court’s decision in New York Times v. United States redefined the boundaries of press freedom and reaffirmed that a democracy cannot function if truth is held hostage by those in power.

Twelve years into the Vietnam War, Secretary of Defense Robert McNamara ordered the writing of an encyclopedic history of the war. The report, nicknamed the Pentagon Papers, was finished in 1969 and consisted of 3,000 pages of historical analysis and 4,000 pages of original government documents in 47 volumes. It was classified as “Top Secret – Sensitive,” the highest level of security that allowed only individually authorized people to have access.

Daniel Ellsberg, an analyst for the Rand Corporation, was one of the 36 analysts who worked on the report. He became convinced that four administrations had deceived the public and Congress on the scope of U.S. involvement in SE Asia and that the Gulf of Tonkin incident, that had been used to justify expanding the conflict, had been misrepresented.He photocopied the entire report and tried to find someone in the government who would read it. Secretary of State Kissinger, Senators Fulbright and McGovern, and others were not interested. Ellsberg began giving copies to the press.

On June 13, 1971, the New York Times published its first article on the Pentagon Papers. Attorney General John Mitchell got a federal court injunction in New York that forced the newspaper to stop publication. The Times appealed.

On June 18 the Washington Post began publishing some articles. Assistant Attorney General William Rehnquist sought an injunction in Washington, D.C., but that judge declined. The U.S. government appealed.

On June 26 the U.S. Supreme Court agreed to hear the two cases, New York Times v. United States and United States v. Washington Post, together.

Meanwhile, fifteen other newspapers received copies of the report and began publishing articles. Senator Mike Gravel (Democrat from Alaska) entered 4,100 pages of the report into the Congressional Record.

On June 30, the Supreme Court decided, 6-3, that the government had failed to meet the heavy burden of proof required for a prior-restraint injunction to stop publication by the press. All nine justices wrote separate opinions, disagreeing on significant, substantive issues.

Justices Black and Douglas argued that the vague word “security” should not be used “to abrogate the fundamental law embodied in the First Amendment.” Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Justice William O. Douglas wrote, “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information….The present cases will, I think, go down in history as the most dramatic illustration of that principle….Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health.”

Daniel Ellsberg, called “the father of whistleblowing,” was indicted under the Espionage Act and faced up to 115 years in federal prison. However, in 1973, all charges were dropped in the light of illegal evidence gathering and other gross misconduct by the Nixon Administration.

Jacqueline Richey is a member of Living Democracy: Engaging Citizens, a local citizen group. Our mission is to inform and educate the Mid-Ohio Valley about how government works on the local, state, and federal levels and how citizens can be involved to make our democracy work. Join us the third Monday of each month. livingdemocracymov@gmail.com and facebook/living democracy:engaging citizensand Youtube channel Living Democracy.