The Charge

In June 1971, The New York Times began publishing excerpts from a 7,000-page classified study commissioned by Defense Secretary Robert McNamara and completed in 1967. The study — which became known as the Pentagon Papers — documented, in remarkable and damning detail, the gap between what successive administrations had told the American public about the Vietnam War and what they had known internally. It showed that the Johnson administration had systematically deceived Congress and the public about the prospects for success, about casualty figures, about the justifications for escalation. It showed that decision-makers privately doubted the war was winnable while publicly expressing confidence.

The study had been leaked by Daniel Ellsberg, a former Defense Department analyst and Marine officer who had worked on it and had become convinced, by 1969, that the war was criminal and that the public needed to know what its government had concealed. He had offered the papers to several antiwar senators; none would use them. The Times, after months of legal review and editorial deliberation, published the first installment on June 13. Nixon’s Attorney General, John Mitchell, issued an ultimatum demanding the Times stop publication. The Times refused. The Justice Department went to court.

The charge, formally, was that publication threatened national security — that the classified materials, if published, could damage diplomatic relations, undermine ongoing military operations, and expose intelligence sources and methods. This was the government’s stated basis for seeking an injunction: prior restraint — the legal mechanism by which a court orders a publication to stop before it publishes something, rather than holding it accountable afterward.

The Proceedings

The legal proceedings moved at extraordinary speed. District Court Judge Murray Gurfein granted a temporary restraining order against the Times on June 15 — the first successful prior restraint on a national newspaper in American history. The Washington Post, which had obtained its own copy of the papers, began publishing on June 18 and was similarly enjoined. Within fifteen days, the cases had been argued before the Supreme Court, which heard them on June 26 and handed down its decision on June 30.

The Supreme Court ruled 6 to 3 against the government in “New York Times Co. v. United States.” But the 6 to 3 majority fractured badly on the reasoning: the nine justices wrote nine separate opinions, some of them barely compatible with each other. The core holding was that the government had not met the “heavy burden” required to justify prior restraint — that the standard for suppressing publication before it occurs is extraordinarily high and had not been met in this case. But several justices explicitly left open the question of whether the newspapers could be prosecuted afterward under the Espionage Act, and at least two of the majority believed they could be. It was a victory for the press, but a narrower and more contingent one than the headlines suggested.

The separate criminal case against Ellsberg began in 1973. It was dismissed that year, after it emerged that the Nixon administration had authorized illegal break-ins at Ellsberg’s psychiatrist’s office — conducted by the same “plumbers” unit that would later burglarize the Watergate Democratic National Committee headquarters — and had engaged in other prosecutorial misconduct. The dismissal meant that the core question — whether Ellsberg had violated the Espionage Act by leaking the papers — was never resolved in court.

The Outcome

The papers were published. The Nixon administration’s reputation for trustworthiness, already strained, was further damaged. The episode accelerated the formation of the “plumbers” unit, whose existence and activities contributed directly to Watergate. Nixon’s presidency ended in resignation in 1974. Ellsberg, who had faced 115 years in prison, was free.

The longer-term constitutional outcome was more ambiguous. The Pentagon Papers case established, in practical terms, that prior restraint of the press is nearly impossible to obtain — but it left the doctrinal question of when it might be available conspicuously unresolved. The Espionage Act, whose application to leakers and publishers remained legally murky, has been used more aggressively against government sources in the half-century since than it was in the period before Ellsberg. The press freedom vindicated in 1971 has coexisted, uneasily, with the prosecution of whistleblowers and the prosecution or intimidation of journalists in ways the case’s outcome might have appeared to foreclose.

What it Teaches

The Pentagon Papers case teaches, first and most directly, about prior restraint — about why the legal tradition treats the suppression of speech before it occurs differently from, and more seriously than, punishment after the fact. The government’s argument in 1971 was that national security required preventing publication; the Court’s response was that this argument, even if partly valid in its specifics, established a precedent that would effectively give the executive branch a veto over unfavorable press coverage whenever it could invoke security concerns. The precedent was too dangerous even if the particular case for secrecy was genuine.

The case also teaches about the relationship between institutional honesty and democratic self-governance. The Pentagon Papers revealed that the American government had, for decades, made decisions about a war in which tens of thousands of Americans and hundreds of thousands of Vietnamese were dying, based on premises that decision-makers privately doubted and publicly denied. The public, whose sons were fighting the war, had been denied information that bore directly on their ability to evaluate the war and hold their government accountable. This is the ultimate argument for press freedom: not that journalists are virtuous, or that publication never causes harm, but that without some mechanism for exposing systematic government deception, democratic accountability is impossible. Ellsberg understood this with unusual clarity. His decision to accept personal legal catastrophe in order to make the papers public was not reckless; it was a calculated judgment that the damage being done by suppression exceeded the damage publication could cause. He was right.