New York Times v United States

9 Key excerpts on "New York Times v United States"

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  Illustrated Great Decisions of the Supreme Court

  • Tony Mauro(Author)
  • 2005(Publication Date)
  • CQ Press

    (Publisher)

  V. UNITED STATES 125 IMPACT The decision in New York Times Co. v. United States was an extra-ordinary victory for freedom of the press. In a time of war, in an un-charted area of law, a majority of the Supreme Court had chosen not to believe the government’s assertions about the potential danger of publishing these documents. With almost no prior cases to follow or go by, the Court easily could have ruled the other way without being seen as overturning past precedents. Rudenstine wrote in The Day the Presses Stopped, “The newspapers prevailed. The fact that they did in the midst of all these circumstances makes their triumph a matter of excep-tional importance not only for the freedom of the American press but for American democracy as a whole.” The newspapers celebrated their victory and resumed publication of stories based on the revelations in the Pentagon Papers. But in all their stories, they recounted only a small part of the original report’s contents. Later book versions, including one published by the U.S. government, excluded some of the most sensitive material the government wanted kept secret. As the months went by the government could not point to any concrete negative effects of the publication of the newspa-pers’ stories. “In hindsight, it is clear to me that no harm was done by publication of the Pentagon Papers,” said Erwin Gris-wold, who had argued the government’s case before the Supreme Court as solicitor general. The disclosures did reenergize the national debate over the wisdom of the Vietnam War. Because the history suggested that President Johnson had misled the public about the war, the Pentagon Papers helped divide, and some would say weaken, the Democratic Party in advance of the 1972 elections. As for Ellsberg himself, a grand jury indicted him on charges of theft of government property and revealing classi-fied material. The indictment ultimately was dismissed, in part because of Nixon administration tactics in investigating Ells-berg.

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  Friend of the Court

  On the Front Lines with the First Amendment

  • Floyd Abrams, Karen Gantz Zahler Literary Management(Authors)
  • 2013(Publication Date)
  • Yale University Press

    (Publisher)

  And when, on the twen-tieth anniversary of the Pentagon Papers, former Solicitor General Griswold (having finally learned that the negotiating volumes had never been in the New York Times’ possession) came to discuss it, he disparagingly referred to the case as one involving a “phantom deci-sion” since it had wrongly assumed inaccurate facts. 11 158 THE FIRST AMENDMENT AND NATIONAL SECURITY That was an ungenerous judgment from counsel to the party that had been told precisely what documents the New York Times had in its possession—and therefore which documents it did not have—and had ignored that information in its submission to the Supreme Court. But it makes the case no less authoritative, no less binding and, in a sense, all the more important. For if material such as the government claimed the New York Times possessed was insufficient to warrant a prior restraint, it seems all the less likely that almost any news pub-lished by the press will be enjoined in the future. That is not a bad result in a case in which the Supreme Court thought, however incor-rectly, that it was allowing publication to continue of information likely to inflict significant harm on the nation. Notes 1. Erwin N. Griswald, Secrets Not Worth Keeping: The Courts and Classified Infor-mation , Washington Post, Feb. 15, 1989, at A25. 2. David Rudenstine, The Day the Presses Stopped: A History of the Penta-gon Papers Case 328–39 (1996). 3. Floyd Abrams, Speaking Freely: Trials of the First Amendment 51 (2005) (quoting Memorandum from Assistant Attorney General Mardian, Dec. 1971). 4. Id . at 49. 5. Affidavit of J. Fred Buzhardt, New York Times v. United States , 403 U.S. 713 (1971), reprinted in James C. Goodale, The New York Times Company vs. United States: A Documentary History 3–4 (1971). 6. John Cary Sims, Triangulating the Boundaries of Pentagon Papers , 2 Wm. & Mary Bill Rts. J. 341, 426 (1993). 7. Caldwell v. United States , 434 F.2d 1081, 1090 (9th cir. 1970), rev’d 408 U.S.

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  On Press

  The Liberal Values That Shaped the News

  • Matthew Pressman(Author)
  • 2018(Publication Date)
  • Harvard University Press

    (Publisher)

  The com-pany’s law firm told Sulzberger that the government would sue the Times and win, but he disregarded that advice and sided with Scotty Reston, managing editor Abe Rosenthal, and in-house counsel James Goodale, who argued that the Times had a responsibility to share this information with the public regardless of the consequences. 42 Conscious of the adver-sarial mood in the newsroom, Rosenthal told Sulzberger that if they chose not to publish, “it would make a mockery of everything we ever told reporters, because how could we possibly ask them to go out in search for the truth when at a time when the ultimate truth, the biggest story ever The Press and the Powerful 195 presented to The Times, had been placed in our laps and we turned away from it out of fear of the consequences of publication.” 43 The first install-ment of the Pentagon Papers series appeared on June 13, 1971. Although the Pentagon Papers said nothing about the Nixon adminis-tration’s conduct in Vietnam (the study concluded in 1967), the White House was furious about the leak. When Sulzberger refused Attorney General John Mitchell’s request that he cease publication of the series, the government obtained a temporary injunction against the New York Times to prevent the release of any additional material. But Ellsberg, anticipating this possibility, had more copies on hand, portions of which he distributed to the Washington Post, the Boston Globe, and several other newspapers. Despite entreaties and warnings from the government, those papers, too, published articles based on the Pentagon Papers, and they too became the targets of injunctions. With the administration suing the country’s leading newspapers in an effort to restrict their most cherished right—the right to publish what they wished—what journalist would deny that they were adversaries? The Supreme Court put an end to this esca-lating battle between the administration and the press on June 30, 1971.

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  Media Nation

  The Political History of News in Modern America

  • Bruce J. Schulman, Julian E. Zelizer, Bruce J. Schulman, Julian E. Zelizer(Authors)
  • 2017(Publication Date)
  • University of Pennsylvania Press

    (Publisher)

  But an intentional downplaying of the news presentation blunted their impact, and if it were not for the fact that the government sued for an in-junction to halt their publication, the dull headlines and lack of illustrations may have consigned them to a smaller place in political history than they have. And no one story, even one that filled fift y-some newspaper pages over nine days of publication, can be expected to change the entire management culture of a newspaper. More than forty years later, the Times held reporter James Risen’s story on the National Security Agency’s warrantless wire-tapping program, bowing to concerns of high-level Bush administration offi cials, and top editors routinely consult with administrations about na-tional security issues to this day. But the Pentagon Papers stories were an early eruption on the road to some reforms, many of which happened under the leadership of Abe Rosen-thal, including expanded arts and cultural coverage, better treatment of women’s issues, and accountability measures such as a daily corrections box. The Times did eventually publish the NSA wiretapping story, too, and was the main U.S. publication partner for Wikileaks. Rosenthal recognized that Abe Rosenthal’s Project X 159 as times change, so too must the Times . It had to change to survive, and its survival kept him up at night. In the first entry of his journal, Rosenthal wrote: “Years ago I used to have a dream, a recurrent dream. In my dream, I would wake up on a Wednesday morning and there was no New York Times and there was a terrible gray-ness, and people went around asking, ‘Where is the Times? Where is the Times?’ ” 40

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  The Social Construction of International News

  We're Talking about Them, They're Talking about Us

  • Philo C. Wasburn(Author)
  • 2002(Publication Date)
  • Praeger

    (Publisher)

  Of these, 1,176, or 33.6 percent, concerned the Gulf crisis. By all four measures, then, The New York Times clearly defined the Gulf crisis as more important or newsworthy than did Kompas. If newsworthi- ness were an intrinsic quality of an event, this would have been reflected in the more or less equal attention given the situation by the two newspa- pers. What the data reflect, however, are differences in the material re- sources invested in the Gulf crisis by the government of the United States and Indonesia, and possibly differences in the political perspectives of the governments as well. Balance In American journalism, the appearance of political balance is assigned considerable importance. Displaying some effort to present both sides of a political conflict equally is made on grounds that failure to do so will lead to accusations of bias and undermine credibility (Gans 1979,75). However, as many analysts have pointed out, American media are participants in a symbiotic relationship with government and with corporations that re- sults in its continuously confirming the legitimacy of the state and corpo- rate capitalism (Bagdikian 1997; Bennet 1996; Fishman 1980; Herman and Chomsky 1988; Schudson 1983; Sigal 1973; Tuchman 1978). Several studies have shown that American media coverage of the Gulf conflict (including The New York Times coverage specifically) was subject to various forms of censorship. Among the most important of these was the practice of pooling. Media were prohibited from having direct access to the troops and to certain geographic areas. Journalists were organized into pools and were taken to sites selected by the military itself, and then were THE UNITED STATES AS A WORLD MILITARY POWER 99 permitted to interview troops and others, such as shopkeepers, or to make observations of military activity only with the military escort present.

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  Henry Friendly, Greatest Judge of His Era

  • David M. Dorsen(Author)
  • 2012(Publication Date)
  • Belknap Press

    (Publisher)

  Although the witnesses opined that the publication would cause enormous harm to the security and diplomatic relations of the United States, they were remarkably light on specifics, even when Gurfein pressed them to identify which parts of the documents hurt the United States and how. As Hess later explained, “We didn’t have much to work with, so we emphasized something we had, that the Pentagon Papers were stolen merchandise.” 73 The Times ’ lead lawyer was Alexander Bickel, a Yale Law School professor and distinguished constitutional scholar, but neither a First Amendment expert nor an experienced litigator. Based on the evidence, Gurfein’s excellent opinion found the government’s case unpersuasive—publication would not “seriously breach the national security” or “vitally [affect] the interests of the Nation”—and denied an injunction but continued the restraining order to allow the government an opportunity to appeal without further publication of the Papers. 74 Meanwhile, the Washington Post, which by then had acquired substantial portions of the study from Ellsberg, published its first installment on Friday morning, June 18. The government immediately sued to enjoin further publication, along the lines of its suit against the Times. After granting a temporary restraining order, the district judge in Washington, D.C., held a hearing and denied the government’s motion primarily on the ground that it had failed to provide specifics of how publication of the material could harm the country. 75 The case was now before two courts of appeals, barely a week after the initial publication. Prepared over the weekend, the government’s submission to the Second Circuit consisted of a public legal brief, a sealed brief, and an appendix (the last two discussing classified data). The government relied on the President’s inherent power; the Espionage Act, 76 a criminal statute; and Near v

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  The Ethics and Efficacy of the Global War on Terrorism

  Fighting Terror with Terror

  • C. Webel, John A. Arnaldi, C. Webel, John A. Arnaldi(Authors)
  • 2011(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. 55 The government’s claim that the rights of the press could be restricted in the interests of national security also were rejected: The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, reli- gion, and assembly should not be abridged. 56 Conclusion The opinion of Justices Black and Douglas in The Pentagon Papers Case reaffirms the importance of the press to the health of the nation and lays out the moral and Constitutional Law basis for a press kept free from government influence. Likewise, the profession of journal- ism asserts that the core ethical obligation for journalists is to be guided by a fierce loyalty to the people’s right to information. Justices John A. A rna ldi 164 Black and Douglas clearly believed that receiving and publishing sto- len secret government documents in hopes of stopping a dishonest war was a perfect example of how the founders intended the press to function. I have presented examples where conflicting interests have influ- enced the mainstream press and media.

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  The L.A. Theatre Works Audio Docudrama Series

  Pivotal Moments in American History

  • Peter Goodchild, Murray Horowitz, Jonathan Estrin, Geoffrey Cowan, Leroy Aarons, Bloomsbury Publishing(Authors)
  • 2020(Publication Date)
  • Methuen Drama

    (Publisher)

  Oakland Tribune, and Peter Braestrup, a former Vietnam-era journalist and Senior Editor and Director of Communications at the Library of Congress. The play wrapped up around 1 a.m. EST, so we made sure Ben Bradlee and Carla Robbins back in D.C. had plenty of hot coffee and treats to keep them going for the post-show discussion.

  Both the docudrama and the panel afterwards were grand successes, and we won the Corporation for Public Broadcasting’s Gold and Silver Awards for the Best Radio Drama Production that year. In retrospect, I am glad I placed the call to Geoff that day. I am delighted to be bringing this ever-relevant work back to universities and performing arts centers worldwide as we continue to confront national security vs. the people’s right to know.

   

  A Note from Geoffrey Cowan

  This play had its origins in a classroom, so it seems appropriate that it is now being performed at universities around the United States. In the mid-1970s, when teaching an undergraduate lecture course in media law, I found that the most important and dramatic way to start the class was with a discussion of the Pentagon Papers case.

  The case was of signal importance since it pitted the interests of a free press against the government’s need for secrecy when national security may be at risk. Moreover, the facts were riveting. In the midst of a war in which more than 50,000 American soldiers were killed, The New York Times gained possession of a huge trove of documents that traced the origins of the war and described the U.S. government’s internal deliberations. Importantly, many of the documents showed government deception—of the press and the public.

  The documents, which soon became known as the Pentagon Papers, had been commissioned by Robert McNamara in 1967, while he was the Secretary of Defense. He wanted the government to be able to gain a greater understanding of the origins and decision-making process of the war in Vietnam. Just after President Nixon took office in 1969, the Defense Department published the forty-seven-volume, 7,000-page study, which included about 4,000 pages of contemporaneous documents. It was the most limited of editions. There were only seven copies—five of which were held under lock and key within the United States government at the departments of State and Defense and at the National Archives. The sixth copy was in the possession of Secretary McNamara, who had become the President of the World Bank. The seventh volume was in Santa Monica, at a think tank called the RAND Corporation, which conducts highly sensitive studies for the Department of Defense.

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  Comparative Defamation and Privacy Law

  • Andrew T. Kenyon(Author)
  • 2016(Publication Date)
  • Cambridge University Press

    (Publisher)

  In 1964, the market for news was print-based and dominated by newspapers in the major metropolitan areas. Nowadays the situation of once great newspapers is parlous. 68 Second, the distribution of information on the Internet changes the usual way that news relating to public officials and figures emerges in the public domain. 69 The classic model for journalism acting as the fourth estate was the investigative journalist, who bravely garnered information, tracked down its reliability and published it fearlessly. The Washington Post’s stories about Watergate are usually cited as the exemplar. 70 Certainly the Pentagon Papers case 71 emboldened the press to intrude on government secrecy even where national security was claimed. This precedent has given the New York Times in particular space and freedom to publish when the press elsewhere has been crimped by government prerogatives. 72 The test for false information that should not be protected has been acceptable 68 See ‘Who Killed the Newspaper?’, The Economist (online) (24 August 2006), www.eco nomist.com/node/7830218. 69 See Rowbottom, above n 30 (pointing to the uneasy place of low level speech in the protections provided for speech). 70 The reporting made the careers of Bob Woodward and Carl Bernstein. ‘Deep Throat’, whose identity was recently revealed, fed the story to them and it did not require the kind of in depth research that is often claimed as the marker of this journalism. See, generally, David von Drehle, ‘FBI’s No 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery of The Post’s Watergate Source’, Washington Post (online) (1 June 2005) www.washington post.com/politics/fbis-no-2-was-deep-throat-mark-felt-ends-30-year-mystery-of-the-po sts-watergate-source/2012/06/04/gJQAwseRIV_story.html. 71 NY Times v. US, 403 US 713 (1971). 72 Note The Guardian’s compunctions and reliance on the New York Times’ greater legal freedoms in the Snowden disclosures.

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