Pentagon Papers Case

In an emergency session, the U.S. Supreme Court refused to uphold lower court decisions directing The New York Times to refrain from publishing the Pentagon Papers, a history of the Vietnam War that revealed the duplicity and missteps of several presidential administrations in dealing with the conflict.

Summary of Event

In 1967, U.S. secretary of defense Robert McNamara directed a study of the American military and political involvement in Vietnam since World War II. Leslie Gelb, a civilian staff official in the Department of Defense, headed up a team of dozens of military and civilian scholars who assembled seven thousand pages of documents in forty-seven volumes; the collection was classified top secret. One of those working on the project was Daniel Ellsberg, an employee of the RAND Corporation who was growing to distrust the government’s public assessment of the progress of the war in Vietnam. He felt the documents exposed the ineptitude of several presidential administrations in dealing with affairs in Southeast Asia and also highlighted the government’s efforts to keep embarrassing information from the American people. Pentagon Papers case
Supreme Court, U.S.;freedom of the press
[kw]Pentagon Papers Case (June 26-30, 1971)
[kw]Case, Pentagon Papers (June 26-30, 1971)
Pentagon Papers case
Supreme Court, U.S.;freedom of the press
[g]North America;June 26-30, 1971: Pentagon Papers Case[00320]
[g]United States;June 26-30, 1971: Pentagon Papers Case[00320]
[c]Laws, acts, and legal history;June 26-30, 1971: Pentagon Papers Case[00320]
[c]Publishing and journalism;June 26-30, 1971: Pentagon Papers Case[00320]
Ellsberg, Daniel
Russo, Anthony J.
McNamara, Robert
Gelb, Leslie
Gesell, Gerhard A.
Gurfein, Murray I.
Gravel, Mike
Griswold, Erwin
Bickel, Alexander

After gaining access to the RAND Corporation’s set of these volumes, in 1971 Ellsberg and fellow RAND employee Anthony J. Russo made copies; immediately Ellsberg began seeking ways to have them released to the public. When he failed in attempts to have Senator J. William Fulbright Fulbright, J. William of Arkansas share them with Congress, Ellsberg gave them to The New York Times after the newspaper agreed to do an extensive series based on the documents.

On June 13, 1971, the Times began publishing what was projected to be a ten-part series. Although the stories could not directly embarrass the Richard M. Nixon Nixon, Richard M.
[p]Nixon, Richard M.; Pentagon Papers case administration, since the documents on which they were based covered the period from 1954 to 1968, President Nixon felt it was important for the government to block further disclosure of classified information. Almost immediately, attorneys from the U.S. Department of Justice went before Federal District Judge Murray I. Gurfein in New York to obtain a court order to stop publication. Gurfein directed that the Times halt publication until the matter could be argued more fully in court.

Three days later, however, The Washington Post began a similar series. Again, Nixon administration lawyers went to court, appealing to Federal District Judge Gerhard A. Gesell in Washington, D.C., to enjoin the Post from continuing its series. Unlike Gurfein, however, Gesell did not order the Post to cease publishing the series. In both cases, lawyers for the government argued that information in these documents, popularly titled the Pentagon Papers, was highly sensitive; they claimed that publication would hurt efforts to end the war in Vietnam and would place lives in jeopardy. They also pointed out that in 1931 the Supreme Court had ruled in Near v. Minnesota that prior restraint (a form of censorship used by the government to prevent a statement from being published) was permissible when national security was threatened.

The Supreme Court upheld the right of The New York Times to publish the Pentagon Papers, documents on the Vietnam War released by Daniel Ellsberg, pictured here at a news conference in 1971.

(AP/Wide World Photos)

Both sides in the case, and the judges in the federal court system, realized that the issues with which they were dealing had serious First Amendment implications. The Times appealed Judge Gurfein’s ruling; the government appealed Judge Gesell’s. Both cases proceeded on parallel tracks through the federal system very quickly, the government insisting that national security was threatened by publication of the Pentagon Papers while the newspapers’ attorneys argued that their clients were protected from prior restraint of publication by the First Amendment. First Amendment (U.S. Constitution) In the meantime, other newspapers across the country began carrying stories that reprinted material from the Pentagon Papers, further publicizing the government’s long-standing secret activities in Southeast Asia.

On June 24, 1971, having lost in the lower courts, the Times appealed to the U.S. Supreme Court. Because the Post had won in the lower courts, the Justice Department brought its case against the Washington, D.C., paper to the Supreme Court as well. The cases were combined and heard as New York Times Co. v. United States before the Court in an emergency session. Two noted constitutional scholars represented the opposing parties: Yale professor Alexander Bickel argued on behalf of the newspapers, and the government’s arguments were presented by the solicitor general of the United States, Erwin Griswold. The government reiterated its argument that national security was endangered, but Bickel pointed out that the Justice Department had not identified for any federal court specific information that national security was being threatened.

On June 30, in a six-to-three ruling, the Supreme Court justices affirmed that prior restraint was not appropriate in this case. Each justice wrote a separate opinion indicating his reasons for voting as he did. Three thought that prior restraint was called for, but six argued that, since the government could not prove how release of this information would specifically damage the nation, the newspapers were protected under the First Amendment to publish what they wished. Several justices emphasized, however, that the government could bring criminal charges against newspaper officials and others involved in making public the classified information contained in the Pentagon Papers.

By this point, however, the American public had already seen enough of these documents to know that what was really being protected were the reputations of political officials who had gotten the country deep into the quagmire in Southeast Asia. Further, on the eve of the Supreme Court decision, Alaska senator Mike Gravel, an opponent of the war, had obtained a copy of the Pentagon Papers and began reading them at a congressional subcommittee meeting, thus entering them into the Congressional Record as public documents.


The immediate impact of the Supreme Court’s ruling was to permit American newspapers to continue publishing information from the Pentagon Papers that revealed the government’s behind-the-scenes activities in dealing with the Vietnam War. Legally, the justices actually upheld the principle that prior restraint of publication is sometimes permissible, but by refusing to stop publication of the Pentagon Papers they set a high standard for the government to meet in requesting prior restraint in the future.

The court case also made public some embarrassing facts about the government’s classification system. During hearings, it became clear that some information that government lawyers were trying to suppress had in fact long been available to the public. Worse, testimony revealed that there was no definitive rule for assigning levels of classification to government documents; individual judgment by midlevel bureaucrats was often the only standard for determining the sensitivity of a document. This revelation, combined with the release of information that exposed attempts by several presidential administrations to mislead the American people, fueled widespread distrust of government.

The indirect impact of the Pentagon Papers case was even more significant. Although no charges were filed against the newspapers, the government brought criminal charges against Ellsberg and Russo in 1971 for leaking the classified documents. Charges were dismissed in 1973, but the Nixon administration’s aggressive attempts to prosecute Ellsberg and to prevent future leaks of classified information led to the establishment of a clandestine group known as the “Plumbers.” One of this group’s first actions was to break into the office of Ellsberg’s psychiatrist to steal information that might damage the RAND analyst’s credibility. Later, the Plumbers would reprise their tactics at the offices of the Democratic National Committee in the Watergate complex in Washington, D.C. The discovery of their activities, and the revelation that President Nixon had personally authorized their activities, led to the resignation of the thirty-seventh president of the United States. Pentagon Papers case
Supreme Court, U.S.;freedom of the press

Further Reading

  • Prados, John, and Margaret Pratt Porter, eds. Inside the Pentagon Papers. Lawrence: University Press of Kansas, 2004. Examines the impact the release of the Pentagon Papers had in 1971 and subsequently. Includes interviews with many who were directly involved in producing the documents or in the court cases involving their release, and a chapter on the legal battles that emerged over publication of these documents.
  • Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: University of California Press, 1996. Explains how and why the Pentagon Papers were released; concentrates on the legal issues surrounding the U.S. government’s efforts to prevent public disclosure. Discusses the impact of this incident on American legal and political history.
  • Ungar, Sanford J. The Papers and the Papers. New York: E. P. Dutton, 1972. Chronicles the creation of the Pentagon Papers and Ellsberg’s efforts to have them made public; describes legal actions taken to prevent publication.
  • Wells, Tom. Wild Man: The Life and Times of Daniel Ellsberg. New York: Palgrave, 2001. Account of Ellsberg’s work on the Pentagon Papers, his efforts to obtain a copy of the complete document, and his campaign to release the documents in an effort to help halt hostilities in Vietnam. Also describes his indictment and trial.

Watergate Affair

U.S. Troops Leave Vietnam

Nixon Resigns from the U.S. Presidency