The New York Times had just refused the government’s request that it cease all publication of what we now know as the “Pentagon Papers” and return the source documents to the Department of Defense[7]. These papers, mostly from the Pentagon’s “History of U.S. Decision Making Process on Vietnam Policy”, evaluated U.S. policy during the Vietnam War[8]. Their evaluation was very negative, and their conclusions were devastating. The papers made the government look extremely bad and made the war seem unwinnable.
The papers had been given to the New York Times by someone who did think the war was unwinnable; who had worked in the Pentagon and helped write the report; someone who was not anti-war at first but, over time, had come to see the impossibility that the Vietnam War was.
This someone was Daniel Ellsberg. Ellsberg smuggled one of the 15 copies of the papers from a safe at the RAND Corporation to an offsite photocopier. There, he and a colleague, Anthony Russo, photocopied the papers over a period of several weeks[9]. Ellsberg tried without success to make the papers public by having them read into the Congressional Record. He eventually contacted the New York Times reporter Neil Sheehan in the hope that the Times would publish them. Ellsberg knew that this was a criminal act, but for him the war itself was a criminal act; his aim was to let the American people see just what kind of a crime it was.
For two and a half months the Times editors pored over the papers, working to verify their authenticity and accuracy. After an extensive review, the editors determined that they were authentic and resolved to publish the first of a ten-part series of excerpts and stories on Sunday, June 13, 1971[10].
On Monday afternoon, one day after the first installment appeared, Attorney General John Mitchell sent a telegraph to the New York Times stating:
I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense[11].
When the Times failed to comply, the government filed papers to enjoin the paper from continuing to publish stories and excerpts from the documents[12].
The government’s claims were simple: These papers contained government secrets; they were stolen from the possession of the government; to publish them would put many American soldiers at risk and embarrass the United States in the eyes of the world. This concern about embarrassment was more than mere vanity: Embarrassment, the government argued, would weaken our bargaining position in the efforts to negotiate a peace. Because of the harm that would come from further publication, the Court should step in to stop it.
The argument was not unprecedented. Past courts had stopped the publication of life-threatening texts, especially in the context of war. As the Supreme Court said in Near v. Minnesota, for example, “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[13]”.
Yet the question was not easily resolved. Standing against precedent was an increasingly clear command: If the First Amendment meant anything, it meant that the government generally cannot exercise the power of prior restraint[14]. “Prior restraint” is when the government gets a court to stop publication of some material, rather than punish the publisher later for what was illegally published. Such a power is thought to present much greater risks to a system of free speech.[15] Attorney General Mitchell was asking the Court to exercise this power of prior restraint.
The Court struggled with the question, but resolved it quickly. It struggled because the costs seemed so high[16], but when it resolved the question, it did so quite squarely against the government. In the Court’s reading, the Constitution gave the New York Times the right to publish without the threat of prior restraint.
The Pentagon Papers is a First Amendment classic — a striking reminder of how powerful a constitution can be. But even classics get old. And in a speech that Abrams gave around the time the first edition to this book was published, Abrams asked an incredible question: Is the case really important anymore? Or has technology rendered this protection of the First Amendment unnecessary?
Abrams’s question was motivated by an obvious point: For the government to succeed in a claim that a printing should be stopped, it must show “irreparable harm” — harm so significant and irreversible that the Court must intervene to prevent it[17]. But that showing depends on the publication not occurring — if the Pentagon Papers had already been published by the Chicago Tribune, the government could have claimed no compelling interest to stop its publication in the New York Times. When the cat is already out of the bag, preventing further publication does not return the cat to the bag.
This point is made clear in a case that came after New York Times — a case that could have been invented by a law professor. In the late 1970s, the Progressive commissioned an article by Howard Morland about the workings of an H-bomb. The Progressive first submitted the manuscript to the Department of Energy, and the government in turn brought an injunction to block its publication. The government’s claim was compelling: to give to the world the secrets of how to build a bomb would make it possible for any terrorist to annihilate any city. On March 26, 1979, Judge Robert Warren of the Western District of Wisconsin agreed and issued a temporary restraining order enjoining the Progressive from publishing the article[18].
Unlike the Pentagon Papers case, this case didn’t race to the Supreme Court. Instead, it stewed, no doubt in part because the district judge hearing the case understood the great risk this publication presented. The judge did stop the publication while he thought through the case. He thought for two and a half months. The publishers went to the Court of Appeals, and to the Supreme Court, asking each to hurry the thinking along. No court intervened.
Until Chuck Hansen, a computer programmer, ran a “Design Your Own H-Bomb” contest and circulated an eighteen-page letter in which he detailed his understanding of how an H-Bomb works. On September 16, 1979, the Press-Connection of Madison, Wisconsin, published the letter. The next day the government moved to withdraw its case, conceding that it was now moot. The compelling interest of the government ended once the secret was out[19].
Note what this sequence implies. There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint on publishing. Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of the publication are published elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it.
So, Abrams asks, would the case be important today? Is the constitutional protection of the Pentagon Papers case still essential?
11.
Sanford J. Ungar,
13.
14.
See, for example, Organization for a Better Austin v. Keefe, 402 US 415, 418–19 (1971); Bantam Books, Inc., v. Sullivan, 372 US 58, 70 (1963); Near v. Minnesota, 283 US 697, 713–14.
15.
The standard arguments are summarized well by Kathleen M. Sullivan and Gerald Gunther: "(1) It is easier for an official to restrict speech `by a simple stroke of the pen' than by the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a professional bias in favor of censorship, and thus will systematically overvalue government interests and undervalue speech. (3) Censors operate more informally than judges and so afford less procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the marketplace of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence from which to measure its alleged likely harms";
16.
In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case in which disclosure "would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?" Bickel replied that his "inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort";
17.
In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue was invalid since he could not "say that disclosure of the Pentagon Papers will surely result in direct, immediate, and irreparable damage to our Nation or its people";
18.
See
19.
The