The Courts

The Courts

The Burger Court of 1971

“A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.  These are troubled times.  There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form….” – U.S. District Judge Murray I. Gurfein in rejecting the government’s initial prior restraint motion

The Pentagon Papers, formally New York Times Co. v. United States (No. 1873) and United States v. Washington Post Co., et. Al (No. 1885), represented one of the most remarkable cases in American history, in which the Supreme Court decided on First Amendment Grounds that prior restraint could not prevent publication of the Pentagon Papers, even though the information related to defense and national security.  The case itself, from complaint to the U.S. Supreme Court decision, was decided in less than 16 days, a speed nearly unprecedented in U.S. history.


Top Secret describes a successful court battle played out by the Washington Post in the courtroom of a fictional judge Martin Peel, but that was only the tip of the iceberg for this legal whirlwind; although Top Secret ends with a victory party, the Post was in fact enjoined from publication by a temporary restraining order granted by the District of Columbia Court of Appeals, and, like the New York Times, was prohibited from publishing their next story about the Pentagon Papers until July 1.  At the time of the Post’s hearing, the Times had been fighting its own legal battle for five days, which had been tipped off, on the day of their second story, with a telegram from Attorney General John Mitchell ordering them to cease publication or face prosecution under the Espionage Act.  While there had been controversy in advance of publishing at the Times because of the risk just such legal action, editors had decided to go ahead anyway. On Monday afternoon when the telegram finally came, editors responded to the Attorney General’s office by declaring that they would not comply with the telegram’s instruction, but would only stop publication if such an order came as a result of valid court action. A hearing was held the next day in the federal district court.  When the Times then went to notify their attorneys from the venerable firm of Lord, Day, & Lord, the firm refused to represent them because one of its senior partners Herbert Brownell, as Attorney General under President Eisenhower, had signed the classification order that the Times would be violating with their action.  That night Yale Professor Alexander Bickel, and young First Amendment litigator Floyd Abrams were contacted to comprise a new legal team. The choice of Bickel was at first controversial because he was not an experienced litigator, nor a particularly strident freedom of speech defender; his academic writing who had advocated judicial restraint, particularly from political matters, and thus was less a natural choice than, say,

Thomas Emerson, also of Yale Law School, who himself would eventually file an amicus brief in the Supreme Court on behalf of Members of Congress. It happened however, that Bickel had been having lunch on the day the Pentagon papers were published with James Goodale, general counsel to the Times (they were discussing the case of Earl Caldwell, a Times reporter who was resisting court pressure to turn over source material of his reporting of gangs in California, and whose case eventually become part of Branzburg v. Hayes, the Supreme Court case that rejected the concept of a “reporter’s privilege.”).  In the initial hearing for the Times, Judge Murray Gurfein (pictured right), who himself was serving his first day on the bench as a federal judge, listened to the arguments. Gurfein had been a former prosecutor, and had work with Justice Robert Jackson on the Nuremberg trials. In the arguments Bickel, who had taken the case as a Supreme Court expert, carefully structured his arguments so that the ultimate conclusions would be both favorable to appeal to the Supreme Court and would gain the votes of the needed justices. However, this strategy focused on long-term victory and short-term defeat, resulting in a temporary restraining order barring publication, and creating the first-ever government imposed prior restraint.  No Pentagon Papers article appeared the next day, and instead, the Times, in accordance with the court’s order, turned over a list of the contents of its papers to the Department of Justice, but not the originals, for fear of fingerprint or other analysis that might have given away the source.  A hearing on the matter was heard by Gurfein that Friday in both open and closed session. Testimony was given for the Government through live witness who spoke to the contents of the Papers, including Deputy Assistant Secretary of Defense Dennis Doolin (who testified in both sessions, with as unhelpful a performance as depicted in Top Secret). For the defense, affidavits were submitted by reporters and editors. The Papers were also in the courtroom under guard by a Marine officer before being submitted into evidence, under seal from both the public and defense. The hearings lasted well past 11 p.m., with Gurfein to issue his decision the next day.  But as Gurfein was holding his hearings, the Washington Post became the second paper in the country to publish the Pentagon Papers, and that paper was also prosecuted; brought to the federal district court in Washington, it had to defend against the government’s motion for an injunction. Instead of simply joining the Post to the Times case, the Department of Justice decided that it would be better to keep the two cases on separate tracks. But the Post case was assigned to Judge Gerhard Gesell, a lucky draw for the newspaper, as Gesell himself had at one time been a reporter for the Times and in the course of his private practice once helped to represent the Post on another matter years earlier. Roger Clark, representing the Post, had a much easier time than Kevin Maroney, who was arguing for the government, and in the end, Gesell refused to order even a temporary restraining order, arguing that prior restraint was impermissible as a matter of law. Within two hours, a panel of three court of appeals judges for the D.C. Circuit was assembled, and began consideration of the order. After hours of discussion, the court finally ruled, at 1:30 AM, overruling Gesell’s order, imposing an injunction, and ordering the Gesell to hold evidentiary hearings. It was this ruling that had literally ‘stopped the presses’ at the Post, which by that time had already been churning out copies of the next day’s papers with the second installment of the series. After rushing for a clarification, the court allowed that installment to be printed, so the Washington Post for Saturday, June 19 carried one headline announcing the court’s restraint on publication across the front of the same page on which one such prohibited article appeared.  The day after the Post had its presses stopped, Judge Gurfein ruled in the Times case, in language that was more that was much more favorable, arguing that a ‘cantankerous,’ ‘obstinate,’ and ‘ubiquitous’ press was essential for the workings of democracy and rejecting the injunction. The prosecution team, led by Whitney North Seymour immediately appealed, and Judge Kaufman of the Second Circuit immediately extended the restraining order until Monday so that he could summon a three-judge panel over the weekend to hear the appeal, and eventually an en banc hearing would be scheduled for that Tuesday.  Back in Washington, Gesell was annoyed at being ordered by the Circuit Court’s order to hold hearings, and sought to do so as quickly as possible. He held two conferences in advance of a Monday hearing to be held in both open and closed session. When Gesell ordered the government to produce the individual who had ordered the document classified, the government claimed that it did not know, but instead produced affidavits from witnesses, including Doolin. But in the end, Gesell still ruled against the restraining orders Both cases were now before en banc panels of appeals courts at the same time.  In the Second Circuit case, Bickel’s team had produced an 83-page brief and Seymour’s office producing a top secret “Special Appendix” that detailed the national security implications of the publication. At argument, Bickel was continually questioned heavily by Chief Judge Friendly, and the prospects for the case were looking dim, with the panel prompting the prosecutor into a recitation of the many lawful channels for obtaining government documents, including the FOIA law.  In the D.C. case, the Justice Department asked Solicitor General and former Harvard Law School Dean Erwin Griswold to argue the case personally, though was also faced a much more hostile bench, with Judge Roger Robb asking, given the multiple newspapers now publishing, whether the government wanted the court to “ride herd on a swarm of bees.” Both courts extended the temporary restraining orders before deliberating. In the end, the Second Circuit voted 5 to 3 to send the case back to Gurfein for more review of material presented in the Special Appendix, with ruling due in 10 days. The D.C. Circuit eventually voted 7 to 2 against the restraining order and in favor of the Post.


Both cases were appealed, and at the June 24 conference, with several justices voting by phone since they had already left for vacation on what was to be the last Friday of the term, the Supreme Court voted 5-4 to hear the case the following day, with briefs due.  In granting certiorari, the court also gave the condition that the newspapers could resume publishing, as long as the information that the published did not appear on a list of particularly harmful documents prepared by the Justice Department, but when prepared the list was so long that the newspapers refused to accede such editorial control, and did not publish any further articles.  At the start of oral arguments, the Court announced that it would not be holding any part of its session in camera, as the lower courts had done, but it accepted a “Secret Brief” prepared by the government. Arguments featured Griswold for the Government, Bickel for the Times, and William Glendon for the Post. (Griswold had been one of Bickel’s professors when he was a student at Harvard Law School). Although Griswold focused on the stolen nature of the documents, and Bickel was forced to concede that there could be some cases in which prior restraint for preservation of life was desirable, both sides were criticized by First Amendment purists like Justice Black and Justice Douglas.  The decisions followed three days later, with ten separate decisions: one per curiam decision of the court, and each Justice writing separately. Several summaries of the decisions are available. Because of the wide range of views even among the majority, the case law left several unanswered questions, but it did settle, by a vote of 6 to 3, that newspapers were free to resume publication.

(Justice William Douglas pictured below)

The most recent prior restraint case the court looked to was Near v. Minnesota, from 1931 in which a state statute that permitted injunctions against publications of ‘malicious, scandalous and defamatory’ nature, was struck down. In that case, a county prosecutor had sought to enjoin publication of a local newspaper in Minneapolis that accused ‘Jewish gangsters’ of committing a string of crimes and the local police for supposedly cooperating with the ring.  The Court struck down the law, removed the injunction, and declared prior restraint as an extreme measure not to be employed except in the rarest of circumstances.  But in its briefs and arguments all levels the Government had seized on lines in the opinion by Justice Charles Evans Hughes:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not ‘protect a man from an injunction against uttering words that may have all the effect of force.’

Although these lines were dicta, and therefore not binding as matters of law (they were followed by the line: “These limitations are not applicable here.”), the government sought to assert that the Pentagon Papers would fall within this class of cases.  The Court roundly rejected that claim, found that the wartime publication was not a substantial factor for their consideration, and determined that the government had failed to meet its burden of proving that the publication would lead to irreparable harm to the nation.  The following day, publication resumed. Prior restraint has never been successfully achieved since.


On the same day that the Supreme Court vindicated the rights of newspapers to publish the information leaked to them by inside government sources, that same source, Daniel Ellsberg, was charged with theft and espionage.  The criminal trial which followed, in which Ellsberg was defended by Harvard Law Professor Charles Nesson and anti-war attorney Leonard Boudin, was prosecuted by U.S. Attorney David Nissen. The case was heard by Judge William Byrne, Jr., a former prosecutor who had been the youngest judge appointed to the federal court at the time, and was in his first year on the bench; the judge’s father, William Byrne, Sr., was also a judge in the same court, with a courtroom just down the hall from the younger Byrne’s.  From the start, however, the case was plagued with delays. In August, Anthony Russo, an Ellsberg associate, refused to testify and instead served six weeks in jail as result of a contempt order. When it was determined that he would not speak, after those six weeks, a second superseding indictment was delivered, naming him as a co-conspirator, and charging Ellsberg with crimes of maximum of 115 years and Russo with 25 years.  The trial didn’t begin in earnest until the middle of 1972, and then in the middle of the trial, Ellsberg had reason to believe that his phone calls had been intercepted, and raised an objection under the Foreign Intelligence Surveillance Act, which Judge Byrne denied, and which was subsequently appealed to the Supreme Court.  When the Supreme Court denied certiorari on the wiretap question in November of 1972, Byrne declared a mistrial on account of delay, and a second jury was empanelled. However, when the case resumed again in 1973, after evidence had been presented, Byrne learned that Nixon operatives from the White House Special Investigations Unit (“Plumbers”) had broken into the office of Ellsberg psychiatrist Lewis Fielding in an attempt to discover discrediting information. This, combined with information that Nixon Administration officials had approached Byrne in the middle of the case with an offer of an appointment of FBI directorship for him, which could have been viewed as an effort to influence the outcome, a mistrial was declared and all charges were dropped do to extreme government misconduct. That ruling didn’t come until May of 1973. Charles Colson, of the Plumbers, eventually pleaded ‘no contest’ to the break in charges.


While it is still an open question as to how dangerous the Pentagon Papers were to America’s national security, or how dangerous the courts believed them to be, or even how dangerous the government actually believed them to be, the case was unique in that it dealt with two of the most respected and institutionally trusted publishers of information in the country, and the information being published was of an historical nature.  The ruling in the Pentagon Papers case in fact gave the newspapers editors incredibly wide latitude on what it could publish, and essentially gave them the discretion to determine which secrets were safe for public consumption. Would the case have been different if the publishers had been less universally recognized as ‘trusted’ sources, and if the information had been a bit more forward looking?  One such example can be found in the Progressive case from 1979, in which a left-wing magazine obtained and sought to print detailed plans and instructions on how to make a hydrogen bomb—information that until that time had been secret.  When the government learned of this plan, it initially tried to block publication with a restraining order. Their request was granted, and a trial was held with both open and closed sessions, but as the case wound through the courts, charges were dropped on the grounds that the information had ultimately been published elsewhere.  In considering the newsworthiness of this information weighed against the harm it could potentially cause, the newsgathering responsibilities given to publishers by the courts is substantial, especially in an electronic age in which the internet is breaking down previous channels of traditional newsgathering techniques and restraint.


Leaked information and the balance between the free flow of information. The U.K.’s approach is an Official Secrets Act, which operates in a distinctly separate dynamic. While the British have a notoriously active press due to their more lax libel laws, their state secrets doctrine, as amended in 1989, explicitly forbids the public interest after a civil servant, who leaked information about naval activities during the Falklands War was acquitted by a jury.  In contrast, when an “Official Secrets” Act was passed by the Congress in 2000, it was pocket-vetoed by President Clinton because of his expressed concern that such an act would not strike the right balance between secrecy and the free flow of information, or chill discussion. A similar bill was introduced in the 109th Congress by a coalition of 15 Republican Senators but did not pass. In the current Congress, a competing bill has been introduced by Senators Kennedy and Leahy.