Adler: The Pentagon Papers case and the right to know

By: 
David Adler

Thomas Jefferson once observed that fearless, independent newspapers were indispensable to the American experiment, and to “the people’s right to know.” Without an informed citizenry to scrutinize, question and

challenge
governmental acts, the great goal of holding government accountable to the citizenry and the rule of law would surely fail.

The U.S. Supreme Court embraced Jefferson’s premises in its landmark ruling in The New York Times v. Sullivan (1964) by protecting the press from libel suits that would chill investigative journalism and bankrupt newspapers.

The constitutionally
protected right of the press to report on the affairs of
government, however
indispensable it is to American democracy, is not without limits. Every constitutional right, like every governmental power, is subject to limitations and regulations. As we have noted, the concept of absolute powers and rights is foreign to our constitutional arrangements.

After the Sullivan ruling, questions arose about the imposition of legal limits on the crucial work of the press. Afterall, the central purpose of the First Amendment’s Free Press Clause was to prohibit prior restraint, that is, the exercise of governmental authority to prohibit the press from publishing without prior authorization.

Would the prohibition on prior restraint apply to every conceivable publication, or could there be rare exceptions as, for example, in the area of reporting about national security and foreign relations? If so, what circumstances might justify prior restraint and thus lower the bar of protection afforded
the press?

The Supreme Court, in Near v. Minnesota (1934), told us that there are but few exceptions to the prohibition on prior restraint, including, wartime obstruction of recruitment, obscenity, incitements to riot or forcible overthrow of government, and words that “may have all the effect of force.” In his opinion for the Court, Chief Justice Charles Evans Hughes added another curious exemption: the press “may not publish the sailing time of a troop vessel.” Most readers understood this to mean that newspapers could not publish the time or location of a military attack which, obviously, would undermine the wartime interests of the United States. Later, President Richard M. Nixon, asserted that Hughes implied a broader meaning, that the press could not publish military secrets. Near thus became the starting point for most defenses of prior restraint.

In 1971, Chief Justice Hughes’s phrase, the “sailing time of a troop vessel,” lay at the center of the most famous prior restraint case in American history: The New York Times v. United States, more popularly known as The Pentagon Papers Case. One of the most troubling issues confronting press coverage was the question of what should and should not be published about national security matters, including those periods when the United States was at war, or facing the threat of war. The Court, for the first time, confronted the question in the context of the Vietnam War, the most contentious war in our history.

The dramatic facts of the case focused the nation’s attention on the work of the judiciary in a way that seldom occurs. On June 12, 1971, the New York Times began publication of a 47-volume classified defense department study entitled, “History of the United States Decision Making Process on Vietnam Policy.” The study, ordered by President Lyndon Johnson, was completed in 1968. This study became known as “The Pentagon Papers” was released to the Times and the Washington Post by Daniel Ellsberg, a former Defense Department official. President Nixon authorized Ellsberg to review sections of the papers as part of a national security project, but he did not
authorize Ellsberg to release the study.

The Times was eager to share the study with the American people, whom it believed had a right to know about the decisions behind the conduct of the Vietnam War. The Times’ first installment enraged the Nixon Administration, which claimed publication of the papers would undermine conduct of the Vietnam War. Citing Chief Justice Hughes, the administration argued in federal court in New York that the Times’ publications represented a national security exception to the prohibition on prior restraint. Publication of the Pentagon Papers was equivalent to the publication of the “sailing time of a troop vessel.”

The federal court granted Nixon’s request for a temporary restraining order against the Times, which meant that the Times was prohibited from publishing its reports about the Pentagon Papers. Prior restraint had been imposed, despite constitutional protection furnished by the First Amendment. Americans wondered: Could the Free Press Clause be set aside by a presidential invocation of national security, a phrase vulnerable to abuse and exploitation by
presidents eager to protect their own political and
personal agendas?

The Nixon Administration also sought an injunction against the Washington Post, but a federal court in Washington D.C. rejected Nixon’s plea for an
injunction, which produced a paradox in the world of journalism. The Post was permitted to publish the Pentagon Papers, but the Times was not. Appeals were quickly filed and, in record time, the cases were consolidated and heard by the Supreme Court on June 26. The Court delivered its ruling on June 30, only 17 days after the first publication of the papers in the New York Times.

 

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported. in part. through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.

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