New York Times Company v. The United States
When The New York Times published the first installments of the Pentagon Papers, Richard Nixon’s immediate reaction was to ignore it, since they embarrassed the administrations of his predecessor’s rather than his own. His aides, led by Henry Kissinger, convinced him that allowing the press to run them unrestrained was unwise, establishing a precedent which could become harmful to the administration in the future. Nixon asked his Attorney General, John Mitchell, to persuade The New York Times and The Washington Post, to cease publication for reasons of national security.
When the Times continued to publish the installments the Nixon Administration, citing the Espionage Act of 1917, obtained an injunction which ordered the Times to cease publication. The Times appealed the decision and the case quickly ran up the court system to the Supreme Court. Meanwhile an injunction against The Washington Post was sought and denied by Judge Murray Gurfein. The government appealed that decision and that case too ran up through the courts until the Supreme Court agreed to hear it simultaneously with that of The New York Times. Meanwhile the Nixon administration began an anti-media campaign.
On June 30, 1971 the Supreme Court ruled in favor of the Times and the Post by a vote of 6-3. The ruling found that the government had not met their obligation of providing the burden of proof required for a judgment. In an unusual move, all nine Justices wrote opinions on the case, and these revealed that the overwhelming issue had been freedom of the press as protected by the First Amendment. Justice Hugo Black wrote in his opinion, “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.”
The Chief Justice of the United States, Warren Burger, dissented with the majority, as did Justices Harlan and Blackmon. They argued that the proceedings had been conducted with unnecessary haste, that there had not been enough time to digest all of the information contained in the disputed documents, and that the Times and the Post should have given the government an opportunity to air its concerns prior to publication. Burger argued that although a free press was imperative, equally imperative was the functioning of a “complex modern government.”
The Pentagon Papers was not the first, nor the last time that Richard Nixon attempted to stifle the reporting of the free press. Nor was it the first nor last time that he cited “national security” as his reasons for doing so. There are times when national security trumps the people’s right to know, as demonstrated by the May Incident in 1943. When the argument is used to prevent the public of learning of events which are already a part of history, as with the Pentagon Papers, in seems that national security is used to cover political security, an altogether different issue.
Where do we find this stuff? Here are our sources:
“World Press Freedom Index”, Reporters Without Borders, 2018
“The Age of Federalism”, by Stanley M. Elkins and Eric McKitrick, 1995
“Congress Passes the Sedition Act, May 16, 1918”, by Andrew Glass, Politico, May 16, 2012
“Lincoln and the Power of the Press”, by Harold Holzer, The New York Times, October 31, 2014
“Silent Victory: The US Submarine War against Japan”, by Clay Blair Jr, 2001
“The Pentagon Papers”, by John T. Correll, Air Force Magazine, February 2007