In the late 1960s and early 70s, controversy surrounding the Vietnam War plagued the nation. In 1967, United States Secretary of Defense Robert McNamara commissioned a study on the history of American involvement in Vietnam. The study consisted of seven thousand pages which were all labeled classified, and only fifteen copies were made.
During the winter of 1971, Daniel Ellsberg, a former Defense Department employee, made copies of the study and distributed them to New York Times reporters. Ellsberg thought releasing the documents would turn public opinion against American involvement in Vietnam. The New York Times reviewed the materials for months before deciding to publish the first three installments of a ten-part series. The Nixon administration argued that the publication put national security at risk and obtained a temporary restraining order to stop further publications. At the same time, The Washington Post obtained the study and began publishing it as well. The study came to be known as the Pentagon Papers.
The government’s case against The Post, United States v. Washington Post Company (1971) was decided alongside New York Times Company v. United States (1971). President Nixon and his administration acted with prior restraint, seeking to block the publication of the material, thinking it was imperative to protect the nation’s security. In response, the New York Times argued that its First Amendment rights, which protect free speech and press, were in jeopardy. The Supreme Court was asked to decide if the Nixon administration had violated the First Amendment by preventing the publication of what it saw as classified information.
The Court decided that the government did not prove that prior restraint was necessary. In a Per Curiam opinion, one ruling with multiple opinions, the Court ended the temporary restraining order against the news organization, allowing it to continue publishing the Pentagon Papers. The Court acknowledged that there is little constitutional validity to prior restraint. They wrote that the government must show justification in order to claim it. However, the Court believed that the government did not meet this burden.
The Justices did not agree on reasoning in this case, leading all six of them to write concurring opinions. Justice Hugo Black wrote that the press must be free and unrestrained in order to expose corruption. He forcefully claimed that the Executive Branch had forgotten the essential quality of the First Amendment and stressed that “the press was to preserve the governed not the governors.” Black saw the press as a way to expose government secrets and inform citizens. Additionally, he made a political statement by arguing that the press must reveal if the government is deceiving the American people by unnecessarily sending Americans to foreign countries to die in combat. He applauded the New York Times and the Washington Post.
Justice William O. Douglas wrote that secrecy in government is “anti-democratic.” He also argued that the government’s pleas of security were too vague to allow the First Amendment to be inhibited. Justice William Brennan wrote that the First Amendment allows no prior restraints at all. He also noted that the Pentagon Papers did not cause inevitable peril, as the government argued. Justice Potter Stewart argued that while he agreed with the government’s claims about some of the documents, he did not agree that the release of the documents could lead to immediate harm. Justice Byron White and Justice Thurgood Marshall contended that the press has great power against prior restraints in order to prevent censorship.
The three dissenting justices argued that the case was decided too quickly and the Court needed more time to examine the prerogatives of the Executive Branch. Chief Justice Warren Burger argued that the First Amendment does not give absolute power. Justice John Marshall Harlan disagreed with the Court’s involvement in general, thinking it disrupted the separation of powers. Justice Harry Blackmun stressed that the First Amendment is only one part of the Constitution and should not be given more weight than any other part. Article II gives the Executive Branch power to protect the safety of our nation.
The Vietnam War became even less popular after the Pentagon Papers were released. President Nixon was concerned about leaking so he created a group in the White House called the plumbers. The plumbers’ first purpose was to stop information leaking in the White House to the public, but the group ended up spying on Nixon’s political opponents. They burglarized the Democratic Party Headquarters in what came to be known as Watergate, a scandal that led to Nixon’s resignation.
The ruling itself was at first seen as a success for the press. However, the decision was ambiguous and was diluted because the Court wrote multiple majority opinions. Although some justices had thoughts on the issue, the Court did not decide if prior restraint is ever constitutional, leaving openings for censorship. However, when the government wants to censor it faces an uphill battle.
In June of 2020, the Trump administration sued John Bolton, his former national security advisor, to stop the publication of his memoir. Bolton’s memoir details his time in the White House, and the Executive Branch claims that it contains classified information. The Trump administration was unable to use prior restraint in this case, and a federal judge allowed for the book to be released. Prior restraint was likely not used because of the precedent set in New York Times Company v. United States (1971).