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New York Times Co. Vs. United States (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be withdrawn immediately.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 that the public had a
right to know what the government was doing. The Supreme
Court ruled 6-3 in favor of the newspapers. The Court held
that there was a heavy burden on the government in that all
prior restraint on publication are unconstitutional under
the First Amendment, and that the government had not
overcome this burden. There was a deep division of opinions
in the Justices, and as such each wrote a separate opinion.
The six who voted against a restraint differed in their
reasons. Half - Justices Black, Douglas, and Marshall, felt
that a prior restraint would never be constitutional. The
others - Justices Brennan, Stewart, and White - felt that a
prior restraint would be constitutional in cases where an
extreme danger was present to security of the US, but that
the government had not proven that the papers' publication
would create such a danger. The three who voted for closure
of the papers - Justices Blackmum and Harlan, and Chief
Justice Burger - supported the President's decision that
disclosure of the documents would harm the national
interests. They felt that since the conduct of foreign
relations and national defense was under the realm of the
executive branch, the judicial branch should not question
the President's decision. Daniel Ellsberg and Anthony Russo
were indicted for conspiracy, theft of government property,
and for the violation of the Espionage Act. However, the
misconduct of the great president Nixon and his little
helpers - the "Plumbers" - in their dealings with Ellsberg
essentially absolved Ellsberg and Russo. The "Plumbers" had
done all kinds of activities, including illegal wiretaps
and seizures, which in the opinion of federal Judge Matt
Byrne, "offended a sense of justice." The case of New York
Times Co. vs. United States was in fact a landmark case in
the American judicial system. It was the first attempt by
the federal government to restrain the publication of a
newspaper. Not only was it a major test of the
interpretation of the First Amendment, but it came at a
crucial time in American history. The events and subsequent
disclosures of the Watergate cover-up were unfolding, and
many were beginning to question the power of the
government. This was a major victory for free expression in



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