The Pentagon Papers and the Freedom of the Press

In 1971, the New York Times published the Pentagon Papers—a 7,000-page classified document containing a history of U.S and Vietnam relations. It was released after the United States had been at war in Vietnam for six long years. At this point, 58,000 Americans had lost their lives, and approval ratings were plummeting. 

Within the Pentagon Papers were accounts of major wartime incidents that had not been exposed in the mainstream media. They revealed that the Johnson administration had enlarged the scope of the war, all while telling Americans that it was coming to a close. According to a 1996 article by New York Times reporter R.W. Apple Jr., the Pentagon Papers “demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”

The Papers were leaked by Daniel Ellsberg. He had worked at the Pentagon as a member of the State Department since 1964 before living in Vietnam for two years. Upon his return to the United States, Ellsberg worked with Secretary of Defense Robert McNamara to write the Pentagon Papers. Meanwhile, he had begun to attend anti-war events, becoming increasingly opposed to the U.S. presence in Vietnam. 

Ellsberg passed his photocopies of the Papers on to New York Times correspondent Neil Sheehan. The Times published the first of the nine excerpts and commentaries on the front page on June 13. In response, a district court judge prohibited them from publishing more on behalf of the Nixon administration. According to the government, the leaking of this classified information “would cause irreparable injury to the defense interested of the United States.” 

The Supreme Court quickly took on the case, reviewing arguments on June 25 and 26, 1971. Essentially, they were tasked with determining whether or not prior restraint should be applied. Doing so would significantly limit the freedom of the press. There were several landmarks cases in the 20th century, however, that did impose exceptions to the First Amendment. The first was Schenck v. United States (1919) that established the “clear and present danger” rule. The second was Dennis v. United States (1951) that established the “grave and probably danger” rule. Ultimately, the Supreme Court decided that the release of the Pentagon Papers did not invoke clear, present, grave, or probably danger—upholding the New York Times’ right to publish. The decision was 6-3. 

Those concurring included Hugo Black, William O. Douglas, Potter Stewart, Byron K. White, and Thurgood Marshall. In his opinion, Justice Black wrote that “the press serves the governed, not the governors.” This implies that the primary duty of the press is to serve the people by delivering truth. Justice Stewart said that an “enlightened citizenry” maintains democracy. This is only possible if they are provided with all of the available information. Lastly, Justice Douglas claims that it is the press’ job to check the government. 

The dissenters included Chief Justice Warren Burger, John M. Harlan, and Harry A. Blackmun. They concluded that the proceedings were too hasty and that the New York Times did not take enough time to consider how their actions impact the American people. 

The New York Times Company vs. United States case maintained the First Amendment, upholding the freedom of the press. This freedom, however, is not unchecked and unlimited because the Espionage Act still stands. It helped establish the press as an active portion of the government.