The Pentagon Papers: 50 Years Later

Should the United States government be allowed to censor the press?

It’s a question that might sound more appropriate for an authoritarian country, not a democracy. After all, the First Amendment to the U.S. Constitution forbids Congress from enacting any law abridging the freedom of the press. But the question of just how free the press should really be to report on government secrets has, in fact, been up for debate since the nation’s founding.

“Every government must be able to work, to some extent, in secret. You have enemies in the world, you have problems that require very sensitive information,” says Lee Bollinger, a First Amendment scholar and president of Columbia University in New York City. “On the other hand, in a democracy, the citizens of a country have to be informed about what the government is doing.”

So how do you balance those two needs?

The most important Supreme Court case in modern history to tackle that question took place 50 years ago this summer, after President Richard Nixon’s administration tried to block The New York Times from publishing classified government documents that became known as the Pentagon Papers. The papers were a history commissioned by the Secretary of Defense of how the U.S. got entangled in the Vietnam War (see timeline slideshow below). What they revealed was shocking: President after president had expanded the U.S. role in Vietnam despite strong doubts about the chances for success and had misled the public about the reasons for the war.

Should the United States government be allowed to censor the press?

It’s a question that might sound more relevant in an authoritarian country, not a democracy. After all, the First Amendment to the U.S. Constitution keeps Congress from passing any law that limits the freedom of the press. But the question of just how free the press should really be to report on government secrets has, in fact, been up for debate since the nation’s founding.

“Every government must be able to work, to some extent, in secret. You have enemies in the world, you have problems that require very sensitive information,” says Lee Bollinger, a First Amendment scholar and president of Columbia University in New York City. “But, in a democracy, the citizens of a country have to be informed about what the government is doing.”

So how do you balance those two needs?

The most important Supreme Court case in modern history to tackle that question took place 50 years ago this summer. It occurred after President Richard Nixon’s administration tried to block The New York Times from publishing classified government documents. Those documents became known as the Pentagon Papers. The papers were a history commissioned by the Secretary of Defense of how the U.S. got entangled in the Vietnam War (see timeline slideshow below). They revealed two shocking things. First, the papers showed that president after president had expanded the U.S. role in Vietnam despite strong doubts about the chances for success. They also detailed how these presidents had misled the public about the reasons for the war.

Why did the First Amendment exist in the first place? The nation’s founders learned from their bitter experience as colonists vulnerable to British censorship that sustaining a free press is essential to holding the government accountable to the people it serves. So in 1791, the First Amendment to the U.S. Constitution was adopted as part of the Bill of Rights, guaranteeing the rights to freedom of the press, speech, assembly, and religion.

Yet seven years after the amendment’s ratification, one of those very same founders placed restrictions on the press. The governing Federalist Party under President John Adams passed the Alien and Sedition Acts, which prohibited any “false, scandalous and malicious writing” against the president and Congress. Twenty-six people were prosecuted under the act, many of them editors who opposed Adams. But the act proved so unpopular that it helped bring about Thomas Jefferson’s victory over Adams in the 1800 election and led to the Federalist Party’s demise by 1824.

The meaning and scope of freedom of the press continued to evolve. In 1917, two months after the U.S. entered World War I (1914-18) in Europe, President Woodrow Wilson signed the Espionage Act. It prohibited sharing information related to national defense that could be used to harm the U.S. or give an advantage to a foreign nation.

It was that act that led to the government’s effort to block publication of the Pentagon Papers by The New York Times and to the prosecution of the person who leaked the documents, Daniel Ellsberg.

Why did the First Amendment exist in the first place? The nation’s founders learned from their bitter experience with Great Britain. As colonists, they were vulnerable to British censorship. That taught the founders that preserving a free press is key to holding the government accountable to the people it serves. So in 1791, the First Amendment to the U.S. Constitution was adopted as part of the Bill of Rights. It guaranteed the rights to freedom of the press, speech, assembly, and religion.

Yet seven years after the amendment’s ratification, one of those very same founders placed restrictions on the press. The governing Federalist Party under President John Adams passed the Alien and Sedition Acts. The laws banned any “false, scandalous and malicious writing” against the president and Congress. Twenty-six people were prosecuted under the act. Many of them were editors who opposed Adams. But the act proved so unpopular that it helped bring about Thomas Jefferson’s victory over Adams in the 1800 election. Its unpopularity also led to the Federalist Party’s downfall by 1824.

The meaning and scope of freedom of the press continued to evolve. In 1917, two months after the U.S. entered World War I (1914-18) in Europe, President Woodrow Wilson signed the Espionage Act. It outlawed sharing information related to national defense that could be used to harm the U.S. or give an advantage to a foreign nation.

It was that act that led to the government’s effort to block publication of the Pentagon Papers by The New York Times and to the prosecution of the person who leaked the documents, Daniel Ellsberg.

Ellsberg, a former Marine lieutenant who had spent two years in South Vietnam as a foreign service officer with the State Department, had worked on the report as a military analyst. But he had become so disenchanted with a war that was to cost the lives of 58,000 Americans that he decided the public needed to know what was in the Vietnam archive. With a colleague’s assistance, he secretly photocopied it.

In March 1971, Ellsberg gave Neil Sheehan, a Vietnam War correspondent for the Times, a key to his apartment in Cambridge, Massachusetts, so Sheehan could read the archive while Ellsberg was away on vacation. But Ellsberg was so anxious about being jailed for espionage that he had given Sheehan mixed signals about whether he also could make copies of the archive.

Worried that Ellsberg might change his mind, Sheehan proceeded as if he were on a secret mission himself. In a plot right out of a spy thriller, he and his wife, Susan, stuffed the documents into suitcases, headed to an all-night copy shop, and cranked out copies of each page until the copier crashed, and they had to find another shop in nearby Boston. They flew back home, even buying an extra seat for their secret cargo so they could hold it close.

Ellsberg was a former Marine lieutenant. He had spent two years in South Vietnam as a foreign service officer with the State Department. He had worked on the report as a military analyst. The war’s casualties, which included the deaths of 58,000 Americans, made him uneasy. That led him to decide that the public needed to know what was in the Vietnam archive. With help from a colleague, he secretly photocopied it.

In March 1971, Ellsberg took a vacation. Before he left, he gave Neil Sheehan, a Vietnam War correspondent for the Times, a key to his apartment in Cambridge, Massachusetts. Ellsberg did this so that Sheehan could read the archive while he was out of town. But Ellsberg was anxious about being jailed for espionage. That caused him to give Sheehan mixed signals about whether he also could make copies of the archive.

Sheehan was worried that Ellsberg might change his mind. So he went forward as if he were on a secret mission himself. In a plot right out of a spy thriller, he and his wife, Susan, stuffed the documents into suitcases. They then headed to an all-night copy shop and cranked out copies of each page. After the copier crashed, they had to find another shop in nearby Boston. They flew back home, even buying an extra seat for their secret cargo so they could hold it close.

For the next two months, Sheehan and a team of editors and reporters working in secret in a hotel room, away from the rest of the newspaper’s staff, analyzed the documents and composed articles that detailed the major findings.

The stories began appearing in the paper on June 13, 1971. They revealed that the U.S. had propped up unpopular regimes in South Vietnam, conspired in a 1963 coup against a Vietnamese president that it no longer had confidence in, and secretly bombed the adjacent nations of Cambodia and Laos while telling the public that the war was restricted to Vietnam.

President Nixon would have preferred to take no action since the stories concerned earlier administrations. But Henry Kissinger, his national security adviser, persuaded him that failure to block future publication would open the door for journalists to reveal other government secrets. The following day, the U.S. attorney general telegrammed the Times, warning it that any more articles about the Pentagon Papers “will cause irreparable injury to the defense interests of the United States.”

The Nixon administration obtained a restraining order from a federal judge against The New York Times, stopping it from publishing any more stories about the Pentagon Papers for two weeks. The Times then appealed to the Supreme Court. In the meantime, The Washington Post had taken up publication of the classified documents, and it became a co-defendant in the case New York Times Co. v. United States.

For the next two months, Sheehan and a team of editors and reporters worked in secret in a hotel room. To keep things under wraps, it was important for them to get away from the rest of the newspaper’s staff. They analyzed the documents and composed articles that detailed the major findings.

The stories began appearing in the paper on June 13, 1971. They revealed that the U.S. had propped up unpopular regimes in South Vietnam. The pieces also exposed that the U.S. took part in a 1963 coup against a Vietnamese president that it no longer saw as an ally. It was also revealed that the U.S. secretly bombed the adjacent nations of Cambodia and Laos. This news was shocking because the government had told the public that the war was only in Vietnam.

President Nixon would have preferred to take no action. That‘s because the stories concerned earlier administrations. But Henry Kissinger, his national security adviser, convinced him that failing to block future publication would open the door for journalists to reveal other government secrets. The following day, the U.S. attorney general telegrammed the Times, warning it that any more articles about the Pentagon Papers “will cause irreparable injury to the defense interests of the United States.”

The Nixon administration got a restraining order from a federal judge against The New York Times. That stopped it from publishing any more stories about the Pentagon Papers for two weeks. The Times then appealed to the Supreme Court. In the meantime, The Washington Post had taken up publication of the classified documents. It also became a co-defendant in the case New York Times Co. v. United States.

On June 30, the Supreme Court issued a profound victory for the press. It ruled 6-3 in favor of the newspapers, establishing the principle that the government can almost never exercise “prior restraint”—preventing the publication of sensitive or embarrassing material before it sees the light of day.

“Only a free and unrestrained press can effectively expose deception in government,” Justice Hugo Black wrote in his opinion supporting the decision.

But although the Court established that under most circumstances the government can’t stop the publication of truthful information on matters of public concern, there are exceptions.

“Never doesn’t really mean never,” says Freeman of the Media Law Resource Center. The government can prevent publication if it would pose a grave danger to national security—for example, a newspaper lays out battle plans, permitting an enemy to directly endanger the lives of American soldiers. The ruling in the Pentagon Papers case also didn’t bar the federal government from pressing criminal charges after publication or prosecuting leakers.

As for Ellsberg, he had been charged with conspiracy, espionage, and theft of government property. But the charges were thrown out when it was disclosed that a secret White House investigation unit working for Nixon’s administration had broken into the office of Ellsberg’s therapist, seeking derogatory information to discredit him. Some of those same people later broke into the Democratic Party headquarters at the Watergate Office Building, setting off what became known as the Watergate scandal that led to Nixon’s resignation.

On June 30, the Supreme Court issued a profound victory for the press. It ruled 6-3 in favor of the newspapers. The decision established the principle that the government can almost never exercise “prior restraint”—preventing the publication of sensitive or embarrassing material before it sees the light of day.

“Only a free and unrestrained press can effectively expose deception in government,” Justice Hugo Black wrote in his opinion supporting the decision.

But although the Court established that under most circumstances the government can’t stop the publication of truthful information on matters of public concern, there are exceptions.

“Never doesn’t really mean never,” says Freeman of the Media Law Resource Center. The government can prevent publication if it would pose a grave danger to national security. For example, a newspaper can‘t lay out battle plans. That‘s because that information could allow an enemy to directly endanger the lives of American soldiers. The ruling in the Pentagon Papers case also didn’t bar the federal government from pressing criminal charges after publication or prosecuting leakers.

As for Ellsberg, he had been charged with conspiracy, espionage, and theft of government property. But the charges were thrown out when it was revealed that a secret White House investigation unit working for Nixon’s administration had broken into the office of Ellsberg’s therapist. They were seeking derogatory information to discredit Ellsberg. Some of those same people later broke into the Democratic Party headquarters at the Watergate Office Building. That set off what became known as the Watergate scandal, which led to Nixon’s resignation.

Some people argue that WikiLeaks doesn’t deserve the same press protections as newspapers, which have a policy of editing out material that might compromise national security. WikiLeaks, by contrast, posts vast amounts of information indiscriminately. Others, however, say it wouldn’t be fair to give freedoms to some publications but not all.

Whatever happens next with WikiLeaks, one thing is clear: The internet has increased the risk of leaks by making it easier for more people to copy and share huge amounts of information. That means, says Bollinger, the First Amendment expert, we’ll likely be debating questions about press freedoms a lot more often in the digital age.

“We’ve moved to a world where everyone with internet access is a publisher, and that undoubtedly means there will be more leaks,” Bollinger says. “On the other hand, it’s extremely important that the government be watched.”

Newspapers have a policy of editing out material that might threaten national security. WikiLeaks, by contrast, posts vast amounts of information without regard for its sensitivity. That’s why some people argue that WikiLeaks doesn’t deserve the same press protections as newspapers. But others say it wouldn’t be fair to give freedoms to some publications but not all.

No one knows for sure what will happen next with WikiLeaks. Still, the internet has made it easier for more people to copy and share huge amounts of information. The risk of leaks has been increased as a result. That means we’ll likely be debating questions about press freedoms a lot more often in the digital age, says Bollinger, the First Amendment expert.

“We’ve moved to a world where everyone with internet access is a publisher, and that undoubtedly means there will be more leaks,” Bollinger says. “On the other hand, it’s extremely important that the government be watched.”