• Last updated on November 11, 2022

In this case, also known as the Pentagon Papers case, the Supreme Court upheld the principle of no prior restraint, disagreeing only on its application to the facts.

The Pentagon Papers case was only the second federal court case involving attempted prior restraint on the press the first after Near v. Minnesota[case]Near v. Minnesota[Near v. Minnesota] (1931). The Pentagon Papers were several hundred pages of top-secret documents prepared by the U.S. Defense Department at the insistence of former secretary of defense Robert McNamara, who wanted a study of all the documents that led to U.S. involvement in the war in Vietnam. The documents revealed that McNamara and other national leaders had misrepresented to Congress and the public many crucial facts involving the U.S. entrance into the war. They also disclosed that the United States had arguably violated international law, then compounded the original violation by “punishing” North Vietnam for what amounted to its legal response to U.S. actions in the Tonkin Bay incident.[case]New York Times Co. v. United States[New York Times Co. v. United States]Pentagon PapersPrior restraint;New York Times Co. v. United States[New York Times Co. v. United States]Speech, freedom of;New York Times Co. v. United States[New York Times Co. v. United States]Pentagon Papers

Included among the documents were top-secret communications between foreign governments and the United States, communications normally given exceptionally secret treatment because foreign governments might retaliate for their disclosure by refusing to communicate their true position to U.S. leaders. The government had vital reasons for wanting to avoid publication, and the newspapers obviously had important reasons to publish them as the scoop of the decade.

All the Pentagon Papers were properly classified secret documents and clearly stolen government property. The person who photocopied the documents was Daniel Ellsberg,Ellsberg, Daniel a semigovernmental think tank employee required not to violate security clearances as a condition of employment. Despite the criminal penalties for disclosing national secrets, Ellsberg believed that the public had a right to know what was in these documents. After photocopying the papers, he gave them to The New York Times, the most prestigious daily newspaper in the United States. The Times, without any notice to the government, printed some of them in what it said would be a series of installments. Because the editors at the Times possessed the documents for a long time, did not return them to their proper governmental owners, and clandestinely prepared and precipitously published them, they clearly knew their actions might be considered as illegal as Ellsberg’s had been.

In separate litigation, Ellsberg was prosecuted for stealing the documents, but the case was thrown out of court when it was discovered that President Richard M. Nixon had ordered a special team of burglars (the same ones who later caused the Watergate scandal) to break into the office of Ellsberg’s psychiatrist, hoping to gain information to discredit him. Acting properly under the law that prohibits the government from pressing a prosecution when the government itself has violated the law, the judge dismissed the case. Failing to convict Ellsberg, the Justice Department decided it would be futile to proceed against the Times.

The government did not just want to convict Ellsberg, it also wanted to stop the damaging information before it got into the hands of the public by imposing a prior restraint on the publication of the Pentagon Papers. Despite the government’s argument that national security would be compromised, it did not succeed in imposing a permanent prior restraint on newspapers. Almost immediately after the documents first appeared, government lawyers obtained an injunction blocking further publication, and the Times stopped publishing. Anticipating such events, someone had taken the precaution of distributing the Pentagon Papers to several other U.S. newspapers that were not so enjoined, and other newspapers started publishing the papers the next day. After much legal maneuvering, the cases were consolidated and prepared for immediate appeal to the Supreme Court.

When the Court ruled on the case, the vote went against the Nixon administration by a vote of six to three. All nine justices upheld the concept of no prior restraint, but they disagreed as to whether the restraint was justified by the extraordinary issues in this case. There was no majority opinion, and each justice wrote a separate opinion. Generally, three major groups of opinions can be distinguished, with four justices in one group, two justices in another, and three justices in a third group. The first group (Justices Hugo L. Black, William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall) essentially maintained that the U.S. government had no right to impose prior restraints on newspapers. Marshall pointed out that the Nixon administration’s case was further weakened because it could not rely on any duly passed congressional enactment and could only assert a vague presidential power. Some of the four maintained that it was wrong for a lower court to have given even a temporary restraining order, common as they are. Justices Potter Stewart and Byron R. White, who voted with the first four justices to allow publication of the Pentagon Papers to go forward, held that the presumption against prior restraint was too strong in this case but held open the option that someday the government might face such a grave danger that prior restraint might be justified. Chief Justices Warren E. Burger and Justices Harry A. Blackmun and John M. Harlan II maintained that they were opposed to prior restraint but requested more time to look at the documents before making a final judgment as to whether a permanent restraining order should be issued.

First Amendment

Near v. Minnesota

Nebraska Press Association v. Stuart

Prior restraint

Speech and press, freedom of

Vietnam War

Categories: History