On Sunday, June 13, 1971, the New York Times ran a front-page story by reporter Neil Sheehan titled “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.”
This story and others that followed were based on a secret government study, commissioned by Secretary of Defense Robert S. McNamara, that described the history of U.S. involvement in Southeast Asia, from World War II until 1968. The Pentagon study was massive — 30 to 40 authors churned out 2.5 million words, 3,000 pages of analysis, and 4,000 pages of official documents.
According to transcripts of phone conversations President Richard M. Nixon had that Sunday with Henry Kissinger, his national security advisor, William Rogers, his secretary of state, and Alexander Haig, Kissinger’s assistant, Nixon seemed surprisingly unconcerned about the article, instead remarking favorably on the week’s low casualty figures from Vietnam and the coverage of his daughter Tricia’s wedding, which also appeared on the Times’s front page.
The Pentagon Papers Case
After all, the Pentagon study, like the war itself, was something Nixon had inherited from previous administrations —the study reflected badly on presidents Johnson, Kennedy, and others, not on Nixon or his administration. Discovering and punishing whoever leaked the secret documents seemed to be Nixon’s main interest.
Attorney General John Mitchell, however, was not happy. On the evening of June 14, he called the Times and also sent the newspaper a telegram telling it to stop publishing the Vietnam stories, which included excerpts of the secret Pentagon study. The Times refused Mitchell’s request, and the government went to court to obtain an injunction to block publication of the stories.
The case was argued before U.S. District Judge Murray I. Gurfein, who was in his first day on the bench, having just been sworn in the previous week.
The case before Judge Gurfein represented a classic clash between government and the press. The government argued that by publishing the secret Pentagon study, the Times had damaged national security and given aid and comfort to the county’s enemies.
The Times argued that the First Amendment prevents censorship of the press, and that the law being invoked by the government was an anti-espionage statute that Congress had never meant to apply to the press.
Judge Gurfein ruled that the Times had to stop publishing for four days, until both parties could prepare for a hearing on a permanent injunction. In a ruling on June 19, Judge Gurfein denied the government’s request to permanently block publication.
A Heavy Burden
A series of quick legal maneuvers resulted in a ruling by the U.S. Court of Appeals for the Second Circuit that further delayed publication by the Times until secret hearings before Judge Gurfein could determine which parts of the Pentagon study “pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.”
Meanwhile, the Washington Post and the Boston Globe entered the fray, publishing articles of their own, and both papers were immediately sued by the government.
Ultimately, the cases involving the New York Times and the Washington Post landed on the doorstep of the U.S. Supreme Court. On June 30, 1971, a little more than two weeks after the Times had begun its series, the Court, in New York Times Co. v. United States, ruled 6 to 3 that the government had not met the “heavy burden” of justifying a prior restraint on publication.
Justice Hugo Black did not mince words:
I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment…. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
Thus, in a little more than 50 years, the Court had moved from punishing people for printing antiwar leaflets and giving Socialist speeches to allowing the nation’s most prominent newspapers to publish stolen government documents during wartime.
Evolution of the Court
How did this evolution in the understanding of the First Amendment take place?
Interestingly, it was not the elite press that pushed the Court toward a more expansive interpretation of “freedom of the press.” In fact, the New York Times entered the First Amendment battle rather late, when it won a defamation case during the Civil Rights era brought by L. B. Sullivan, a Montgomery, Alabama, city official.
That case itself, however, wasn’t about anything Times reporters had written. Instead, it concerned a paid ad placed in the newspaper by the “Committee to Defend Martin Luther King and the Struggle for Freedom in the South,” which Sullivan believed had defamed him.
After the Court’s ruling in Times v. Sullivan (1964), public officials were faced with a nearly insurmountable obstacle to win damages against the press for anything published about their official conduct. Later rulings extended this obstacle to so-called public figures — people who find themselves, willingly or unwillingly, at the center of newsworthy events.
The Thought We Hate
But in 1927, it wasn’t the New York Times or the Washington Post on trial. It was the Saturday Press, a weekly newspaper in Minnesota published by Jay M. Near.
According to Anthony Lewis, author of Freedom for the Thought That We Hate: A Biography of the First Amendment, Near was “a virulent anti-Semite” who wrote that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that police and government officials were turning a blind eye toward crime and corruption.
After the ninth issue of Near’s paper, a court order shut down the Saturday Press. The legal basis? A 1925 Minnesota law, called the Public Nuisance Law, that allowed courts to close publications critical of state legislators and government officials.
The law targeted “malicious, scandalous and defamatory newspapers.” Truth was a defense, but only if the newspaper had published its articles “with good motives and for justifiable ends.”
The state supreme court offered no help for Near, and neither did his fellow newspaper publishers in Minnesota. However, Robert Rutherford McCormick, the publisher of the Chicago Tribune, sensing that the First Amendment was at stake, offered Near the use of the paper’s lawyer, Weymouth Kirkland.
Near’s case made it to the U.S. Supreme Court, which held 5 to 4 in Near v. Minnesota (1931) that the Minnesota’s Public Nuisance Law was an unacceptable prior restraint forbidden by the First and Fourteenth amendments.
Five years after Near, the four dissenting justices changed their minds when Huey Long — the populist governor of Louisiana called by some a dictator and by others a champion of the poor — decided to tax newspapers as a way of controlling the press. In Grosjean v. American Press Co. (1936), the Court saw through the sham that Louisiana’s tax was merely a tax:
The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties. A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.
With its rulings in Near and Grosjean, the U.S. Supreme Court set a nearly unreachable standard for prior restraint and paved the way for the Pentagon Papers case: the only time the government can restrain publication is in cases involving the most serious breaches of national security.
If you thought Jay Near was an unsavory character, albeit perhaps a crusading journalist, wait until you meet Clarence Brandenburg.
He was a Ku Klux Klan leader in Ohio. One day, he called up a Cincinnati television station and invited a news team to film a KKK rally. Segments of the team’s report were later broadcast locally and nationally.
Brandenburg was convicted under the Ohio Criminal Syndicalism statute, which outlawed advocating crime, sabotage, violence, or terrorism to accomplish “industrial or political reform.” He was fined $1,000 and sentenced to prison for one to 10 years.
Brandenburg appealed on First and Fourteenth amendment grounds. The state appeal court affirmed his conviction, and the state supreme court dismissed his appeal, saying there was no substantial constitutional question.
The U.S. Supreme Court, however, agreed to take Brandenburg’s case. The television footage showed armed and hooded figures watching a cross being burned. Although the audio quality was poor, the justices could hear derogatory references to blacks and Jews.
Brandenburg made a speech advocating “revengeance” if the government continued “to suppress the white, Caucasian race.” Brandenburg promised a Fourth of July march on Congress with 400,000 Klansmen in the streets.
Didn’t the state of Ohio have the right to outlaw this type of dangerous advocacy of violence? In Brandenburg v. Ohio (1969), the Court said no.
Overruling its 1927 decision in Whitney v. California, the Court said advocacy was protected by the First and Fourteenth amendments. Only when advocacy rose to the level of “imminent lawless action” could the speech be punished. And even then, the advocacy had to be “likely to incite or produce such action.”
Need for Constant Vigiliance
Despite its seeming invincibility, the First Amendment needs constant protection. Although prior restraint seems to be a thing of the past, journalists are sometimes prevented from doing their job by overzealous police or government officials.
Photographers and videographers are told they can’t shoot newsworthy events from public places.
Reporters and documentary filmmakers are served with subpoenas.
And the consolidation of media outlets limits the number of independent voices being heard.
A free country depends on a free press. That’s why the First Amendment matters.
I hope you have enjoyed this three-part series on the First Amendment. For further information, here are two great resources:
• The Reporters Committee for Freedom of the Press
• The First Amendment Center
As always, I look forward to your comments!