Constitution Day
ATT: Dinah Zeiger
JAMM - University of Idaho
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Idaho Falls

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Supreme Court of Burger

Scene 5: New York Times v United States 1971 / The Pentagon Papers

MUSIC: segues into Vietnam era protest song (“Blowin’ in the Wind”?)

The Pentagon Papers, 1971

New York Times v United States. 1971
The Pentagon Papers

Cast of Characters

Citizen One   Citizen Two
Daniel Ellsberg   Harrison Salisbury 
Hedrick Smith   President Nixon 
HR Haldman   Gen. Alexander Haig
Attorney General Mitchell   Henry Kissinger
Judge Murray Gurfein   Judge Gerhard Gesell
Justice Black   Justice Brennan
Justice Stewart   Justice Marshall
Justice Brandeis  

Citizen Two
Tensions between hawks and doves ran high in 1971 as American involvement in Vietnam persisted. Despite assurances from President Richard Nixon that he intended to withdraw American soldiers, a new round of fighting had erupted in the demilitarized zone separating North and South Vietnam, and bombing raids over Laos intensified. At home, peace marches continued. The Laos incursion prompted demonstrations nationwide, culminating in a protest in Washington DC, where, ringed by National Guard soldiers, Vietnam veterans threw away their medals.

MUSIC: out

Daniel Ellsberg

The Pentagon Papers—leaked by Daniel Ellsberg, a disaffected former military analyst—landed in the middle of this mixture of public anger and official lies. Almost seven thousand pages in length, the Papers contained a three-thousand-page history of how the United States had become embroiled in Vietnam, beginning in the Truman Administration. Four thousand pages of classified documents from the Defense Department, the White House, the CIA, the State Department and the Joint Chiefs of Staff filled in the details. Over a period of months, as the war escalated, Ellsberg photocopied the entire document and locked it away in his safe, where it lay for several years.

Daniel Ellsberg
“Faced with what I believed was a terribly reckless, rash policy by the United States, for the first time in my career, I thought of leaking secret information. I knew other people did it, unauthorized disclosures, outside the government. . . . I didn’t think the stakes were trivial. I tried first to interest Senator Fulbright and later Senator McGovern to publicize the papers on the floor of the Senate. But they both declined, thinking the American people would see it as unpatriotic. I had considered the media as a back-up option, and in late February 1971, I decided to contact Neil Sheehan, a reporter with the New York Times. We’d done business before, and I knew him from Vietnam. Sheehan told his editors he might gain access to a major Pentagon study of the war, under conditions—namely I wanted them to print the whole thing—all seven thousand pages. Harrison Salisbury was among the newspaper’s editors, who wanted to read the documents first, before they agreed to anything.”

Harrison Salisbury
“I was in the room at the Times with about two dozen senior officials and editors when we discussed what to do with the Papers. Max Frankel, the Washington Bureau Chief, put the question to us—journalistically, did the story warrant defying the government and possible legal action? Did the documents, in fact, betray a pattern of consistent and repeated deception by the American government of the American people? There was agreement that this is precisely what the documents showed.”

Citizen One
It was a judgment call. Because the report and documents concerned national security, the Times was certain the government would invoke those claims in appeals not to publish. The Times’ lawyer, James Goodale, believed the Papers were a history and posed no national security issues. So the editors proceeded cautiously on what they called ‘Project X.’ Hedrick Smith was one of several reporters who spent months organizing and reading the documents and writing carefully worded stories.

Hedrick Smith
“As a professional judgment, we were simply trying to bring more information to the public. I worked on the stories with Sheehan. We finally decided to handle it chronologically, historically. We did chunks, going back to Truman, Eisenhower, then through the Kennedy years and Johnson. We had standards. Number one, you don’t print anything that will expose a current military operation or endanger troops or anything of use to the enemy. Second, you don’t report intelligence information or communications codes. Three, we would never expose anything in which there was ongoing secret diplomacy. We were actually spared difficult decisions because this was a history. We worked for three months on it, finally broke it down into twelve stories.”

Projection #30:
NY Times front page June 13, 1971

Citizen One
The series broke on the front page of the New York Times on Sunday, June 13, 1971. President Richard Nixon learned of it when he read that day’s Times. He discussed it with his aides but mainly considered it a problem for the Democrats. It didn’t hurt him or the Republican Party. On Monday, June 14—the second day of the New York Times Pentagon Papers series—Nixon began to have a change of heart. He instructed his chief of staff, H. R. Haldeman, to discover the source of the leaked documents and “out” whoever was responsible. But the first alert was raised in a call by his deputy national security advisor, Gen. Alexander Haig.

MUSIC: telephone sound

Portraits of Nixon, Haig, Haldeman, Mitchell, Kissenger all in one frame.

Gen. Alexander Haig
Mr. President, “we must address this massive security leak from the Pentagon! That goddamn New York Times exposé today ran some of the most highly classified documents of the war.”

Didn’t read it. Where’d the papers come from?

“The whole study was done by Bob McNamara and Clark Clifford, Kennedy and Johnson’s defense secretary. Those peaceniks! I’m sure the papers were stolen during the turnover from the Johnson Administration, and they’ve just been holding them for a juicy time.”

Citizen One
The president later spoke with his National Security Advisor, Henry Kissinger.

MUSIC: telephone sound

Henry! Talked to Haig. He was very disturbed by that New York Times thing . . . unconscionable damn thing for them to do! More than unconscionable—it’s treasonable action by the bastards that put it out!
Exactly, Mr. President! It has the highest classification. It violates all sorts of security laws.

Call Attorney General Mitchell and tell him to put that reporter under oath about where he got that report! A congressional committee should call him! Put him under oath, and then he’s guilty of perjury if he lies. . . . Good God! Can you imagine the New York Times doing a thing like this ten years ago! Whatever they say about our policy, this leak serves the enemy!

MUSIC: telephone sound

Citizen One
Later that day, Nixon’s chief of staff, H.R. Haldeman called.

H.R. Haldeman
Mr. President why the hell do we classify anything if a newspaper feels no compunctions about printing it? To the ordinary guy, this is all gobbledygook, but out of all of it comes one very clear thing: you can’t trust the government! You can’t believe what they say, and you can’t rely on their judgment! The implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this because it shows the president can be wrong!

MUSIC: Production number—“The president can be wrong!” plays out and then drum under.

Here’s what I want done. Get Pat Buchanan, the press guy, to get all the facts together and write a little story that this is all a political ploy by the intellectuals and the Democrats. Let’s smoke out Brookings Institution—those left-wingers!—They leaked it! Call Don Kendall and have others call and maybe have NBC show a prime-time rerun of Tricia’s wedding from yesterday. Have some of their big advertisers call! Pick one network—zero-in at the highest levels.
And, until further notice, under no circumstances, is anyone connected with the White House to give any interviews to a member of the staff of the New York Times without my express permission . . . or respond on any subject to an inquiry from the Times. And I do not expect such permission in the foreseeable future.

MUSIC: out with stinger

Citizen Two
Attorney General John Mitchell was not alarmed at first, but one of his aides concluded that the Papers published by the Times threatened national security and could compromise intelligence interests. He focused on the ongoing and unresolved diplomatic negotiations, including a settlement of the war with North Vietnam. In truth, the material concerning diplomatic relations was not among the volumes of documents Ellsburg had released to the New York Times and did not factor into any of its articles. Nixon talked to Mitchell and Kissinger the next day and set in motion the chain of events that led to the U.S. Supreme Court.

John, what’s your advice on the Times thing? Has the government ever done this to a newspaper before?

Well, I think so. I think we should put the Times on notice, kind of low key. You call them and send a telegram to confirm that they’re violating a statute. I’d think we’d look a little silly if we didn’t take action to advise them about publication.

As far as the Times goes, hell, Henry, they’re our enemies!

This is an attack on the integrity of the government! If you can steal whole filing-cabinets full of classified information and then make it available to the press, you can’t have orderly government!

There’s a principle at stake here. It is the role of government, not the New York Times, to judge the impact of a top security document. If we don’t move against the Times it will be a signal to every disgruntled bureaucrat that he could leak anything he pleased while the government stood by.”

Citizen One
Attorney General John Mitchell sent this telegram on June 14, 1971 to Arthur Ochs Sulzberger, publisher of the New York Times:

“I have been advised by the Secretary of Defense that the material published in the New York Times on June 13, 14, 1971 captioned “key texts from Pentagon’s Vietnam Study” contains information relating to the national defense of the United States and bears a top secret classification.

As such, publication of this information is directly prohibited by the provisions of the Espionage law, Title 18, United States Code, section 793.
Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States. Accordingly, 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.”

MUSIC: slow drum beat

Citizen Two
Abe Rosenthal, the Times’ editor, decided to publish anyway. The matter now moved to the courts. That day, the United States government filed suit in federal court in New York to stop the presses. Judge Murray Gurfein granted a temporary halt until he could hear the evidence. At the hearing, the government’s attorneys argued that the Times’ publication of the Pentagon Papers violated a provision of federal espionage laws and that, legally, Judge Gurfein could stop the newspaper from publishing any further documents. The Times’ lawyers argued the White House did not have the inherent power to bring a lawsuit because Congress had never given it that power. Calling it a classic case of censorship, the Times’ lawyers agreed that the First Amendment did permit a prior restraint in certain circumstances. But, they argued, the material printed by the Times did not meet those very specific instances.
Citizen One
With the temporary halt to the New York Times series, Daniel Ellsberg feared the rest of the story would be buried, so he leaked a copy of the Papers to the Washington Post, which began publishing immediately. On June 18, 1971, the front page of the Post led with “Documents Reveal U.S. Effort in ’54 to Delay Viet Election.”

Justices of the Supreme Court 1971

When court reconvened in New York City that morning, it looked like Judge Gurfein would side with the government. But in closed-door hearings, government witnesses failed to prove that any specific part of the documents had caused significant damage to U.S. interests. Judge Gurfein lifted the restraining order.

Judge Murray Gurfein
This case does not present a sharp clash between vital security interests and the right of the Times to publish the disputed material, because no cogent reasons were advanced as to why these documents, except in the general framework of embarrassment, would vitally affect the security of this nation. The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It has been the credo of our presidents. It is one of the marked traits of our national life which distinguishes us from other nations under different forms of government.

MUSIC: drum tempo increases

Citizen Two
Government lawyers immediately appealed, and again the court ordered the Times to stop the presses. In the meantime, government lawyers in the nation’s capitol sought to block further publication in the Washington Post. At a hearing on the afternoon of June 18, 1971 before Judge Gerhard Gesell government lawyers presented the same argument as they had against the Times. The Post’s lawyers argued that they were publishing historical documents. Judge Gesell ruled that same evening. The Post could continue publishing.

Judge Gesell
The case before us presents a raw conflict between the First Amendment and the genuine deep concern of responsible officials in our government. But the government has not proven any of the dangers proposed would likely happen. The right of a free press to publish cannot be adjusted to accommodate the desires of foreign governments to be protected from embarrassing disclosures. . . It also appears that government officials often selectively and frequently use classified material in dealing with the press. Because this disputed material relates to the long-standing and often vitriolic debate over Vietnam, the question presented by this case is of paramount public importance and an order suppressing it would feed the fires of distrust.

Citizen One
On appeal, the Times case was sent back to Judge Gurfein in New York for more hearings. Meanwhile, the government appealed the Washington Post decision and again lost. At this stage, lawyers for both the New York Times and the White House believed it was an issue that the U.S. Supreme Court should decide.

MUSIC: drum beat stops

On Saturday, June 26, 1971, the nine Justices of the U.S. Supreme Court heard oral arguments.

Justices of the Supreme Court 1971

MUSIC: drum stinger

Four days later, on June 30, the Court ruled. Six of the nine justices agreed the government could not stop the presses. Their decision declared that “any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity.” The decision continued: “The government thus carries a heavy burden of showing justification for the imposition of such a restraint,” which it failed to do. Each of the justices offered reasons for their decision that day. Justice Stewart spoke forcefully for an end to secrecy.

Justice Stewart
“The only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.

Citizen One
Justice Hugo Black argued that the Times and the Post did the job entrusted to them by the Founders:

MUSIC: vamp on “America the Beautiful” (“we’ve staked our all on it”) continues under

Justice Black
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. 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.

MUSIC: “America the Beautiful” theme establishes and plays under.

Citizen One
This was a momentous decision, for it risked the claims of national security against the rights of citizens to know what their government was doing. The courage of the Supreme Court in defending the First Amendment guarantee of a free press must be seen against the backdrop of a nation at war. It also must be weighed against the values expressed in the Bill of Rights and the reasons why Americans hold dear their right as citizens to freely express themselves.

Citizen Two
Over and over again, perilous times have tested the Constitution, especially the right to speak freely and publish unpopular ideas and opinions. The Supreme Court hasn’t always stood firm. Decisions abridging those rights have been enacted and later overturned as the Justices weighed the values expressed in the Bill of Rights. Justice Louis Brandeis articulated it best in a 1927 decision:

Justice Brandeis

Justice Brandeis
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.
They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; without free speech and assembly discussion would be futile; with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; the greatest menace to freedom is an inert people; public discussion is a political duty; and that this should be a fundamental principle of the American government.
The Framers recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction;
They knew it is hazardous to discourage thought, hope and imagination; fear breeds repression; repression breeds hate; hate menaces stable government.
The Framers knew the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly are guaranteed.
Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there is no emergency justifying it.”

MUSIC: segues into second reprise of “Evil” theme

A Peculiar Evil: A History of Silencing Expression in America

Citizen One
Justice Brandeis continued to advocate for liberty of the press and the right of citizens to speak out against their government. As he pointed out in one of his best-known opinions, the men who won our independence by revolution were not cowards. They did not exalt order at the cost of liberty, rather, they believed the remedy for bad ideas was more speech, not the peculiar evil of an enforced silence.

MUSIC: “Evil” theme builds and ends


MUSIC: upbeat tune for curtain call. Plays to its conclusion as audience files out.