The Pentagon Papers Case, which proceeded through the federal
courts at record pace, presented the U.S. Supreme Court with a sharply
drawn question of great importance to the First Amendment: Does the
judiciary have authority to prohibit publication of information whose secrecy
is characterized by the president as critical to the nation’s security?
On June 30, 1971, the Supreme Court rendered a historic decision that
upheld the right of the New York Times, Washington Post and, eventually,
dozens of newspapers, to publish the so-called Pentagon Papers. The
Court’s decision, hailed by a Times’ editorial for “strongly” affirming “the
guarantee of the public’s right to know,” opened a window onto the
government’s decision-making, and deceit, in the conduct of the Vietnam
War.
Although the ruling represented a landmark victory for freedom of the
press, it was not heralded in the form of an unlimited, absolute right of
newspapers to publish governmental documents. Rather, the High
Tribunal’s decision, delivered as a per curiam opinion--an opinion issued in
the name of the court rather than an individual Justice--reminded the
citizenry that prior restraint remained lawful, but only if publication
represented a “grave and immediate danger to the security of the United
States.”
The Nixon Administration had sought an injunction to prevent the
newspapers from publishing the Pentagon Papers. Solicitor General Erwin
Griswold, the legendary former Dean of the Harvard Law School, told the
Justices that publication would be akin to Chief Justice Hughes’s
prohibition on “the sailing time of a troop vessel” since it would endanger
the lives of American soldiers, undermine the peace process and impair
diplomatic relations with other countries whose secrets might be exposed.
The attorney for the New York Times was Alexander Bickel, an eminent
constitutional law professor at Yale, who was presenting his first oral
argument before the Supreme Court, indeed, his first argument before any
court. Bickel contended that the Times did not assert an absolute right of
publication. Rather, the administration had not met the “heavy burden” of
proving that such harm would occur upon publication. Bickel agreed that
prior restraint was the proper way to prevent the death of soldiers, but not
justification for avoiding “the impairment of diplomatic relations.”
The Justices were divided on the legal rationales for the Court’s ruling
that newspapers enjoyed a First Amendment right to publish the Pentagon
Papers. The common thread that linked the 6-3 majority, as the Court’s per
curiam opinion stated, was the government’s failure to meet “the heavy
burden” necessary to justify prior restraint. The opinion, prepared by
Justice William Brennan at the request of Chief Justice Warren Burger,
emphasized the Court’s defense of the Free Press Clause and declared
that any “system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.” The six
Justices agreed that the administration had not met the burden of proving
that publication would result in “direct, immediate and irreparable damage”
to the United States.
The Court’s resort to the use of a per curiam opinion in the case likely
reflected the fact that its Term was at an end, leaving too little time for the
Justices to cobble together a majority opinion before the onset of the
summer recess. As it happened, each Justice wrote an opinion, but no
opinion was joined by more than three Justices.
The most memorable of the opinions was that written by Justice Hugo
Black who, throughout his 34- year career on the Court, had been a
champion of First Amendment rights. Black’s opinion in the Pentagon
Papers Case was his last. Declining health forced him to retire on
September 17—Constitution Day. He suffered a stroke and died on
September 25th.
Justice Black’s beautifully written, majestic opinion was celebrated by
newspapers across the nation, as an emphatic endorsement of the
essential purposes of the Free Press Clause. As it happened, it was the
first Supreme Court opinion that I ever read as a teenager, and it spawned
a life-long love affair with the Constitution and a fascination with
constitutional law.
Justice Black praised publication of the Pentagon Papers as performing
precisely what the founders hoped a free press would do in fulfilling its
service to “the people’s right to know.” The courtly Alabama Justice, in
penning his swan song, wrote: “And paramount among the responsibilities
of a free press is the duty to prevent any part of the government from
deceiving the people and sending them off to distant lands to die of foreign
fevers and foreign shot and shell.”
Justice Black’s words carry special weight these days as the world
weeps while viewing the carnage in Ukraine, a horrific war perpetrated by a
Russian tyrant who despises freedom of the press and the values of
democracy. Throughout his reign of terror, Vladmir Putin has executed the
very journalists who have dared to report the truth of his atrocities. What
Russians desperately need at this critical hour is what some Americans
take for granted: constitutional protection for “the people’s right to know.”
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
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