Journalism History conducted a national student podcast competition during the fall of 2020.
In this honorable mention episode, William Paterson University student Sean Mauro discusses the concept of prior restraint of publication and the reporting on the Pentagon Papers with journalist and author Roy Harris.
Roy Harris: This was a case where the New York Times had documents that the government was insisting were secret and were a matter of national defense, national security.
Teri Finneman: Welcome to Journalism History, a podcast that rips out the pages of your history books to re-examine the stories you thought you knew, and the ones you were never told.
Teri Finneman: I’m Teri Finneman, and I research media coverage of women in politics.
Nick Hirshon: And I’m Nick Hirshon, and I research the history of New York sports media.
Ken Ward: And I’m Ken Ward, and I research the journalism history of the Great Plains and Rocky Mountains.
Teri Finneman: And together we are professional media historians guiding you through our own drafts of history. Transcripts of the show are available at journalism-history.org/podcast. This week, the Journalism History podcast is featuring the winners of our national student podcast competition. Throughout the week, you’ll be hearing from students across the nation as they share their stories of journalism history.
Sean Mauro: Hello, my name is Sean Mauro. I’m a senior majoring in communications at William Paterson University. 2021 will mark fifty years since the New York Times began running stories about the Pentagon papers. The resulting legal battles that would ensue would permanently change the nature of journalism. Why did the New York Times v. United States case have such a large impact on the future of journalism? Why were the Pentagon papers so important?
In March of 1971, military analyst Daniel Ellsberg leaked a massive military study to the New York Times. The study, commissioned by then-Secretary of Defense Robert S. McNamara and worked on by Ellsberg, provided a detailed report of the U.S. military involvement in Vietnam between 1945 and 1967. The report was damaging for the U.S. government. It detailed that four previous presidential administrations – Truman, Eisenhower, Kennedy, and Johnson – had misled the public about the United States’s intentions, actions, and role in Indochina. With the war in Vietnam continuing, Ellsberg felt this was information the citizens of the United States should know.
After receiving parts of the papers, the New York Times began a long process of deciding whether to publish and how to publish the documents. The papers were classified government documents, after all. Finally, they decided to publish articles about the revelations the papers offered. Months of intense study, annotation, and editing would ensue. A group of journalists and researchers pored over thousands of pages of documents, deciding what could and could not be published. Finally, the New York Times started to publish. However, the stories wouldn’t be published for long. John Mitchell, then attorney general under President Nixon, ordered the New York Times to stop publishing. This was a case of prior restraint where the government told an outlet it could not publish material it was intending to publish. Roy Harris, journalist and author of Pulitzer’s Gold, discussed the concept of prior restraint and the case of the Pentagon papers.
Roy Harris: The concept of prior restraint was really used to kind of declare what areas where the media would not be prohibited from running a story.
Sean Mauro: The first obvious concern regarding prior restraint is restricting First Amendment rights of free speech and press. What limitations does this have for a government that desires to restrain publications?
Roy Harris: When the government tells a publication or, you know, an individual who is, who is assured of free speech under the First Amendment that, um, something that is, that he or she is prepared to say or is preparing to, to write that at that point, generally speaking, the government cannot stop it from being said or written because it’s really the violation – this is my understanding anyway – it’s the violation that that the government can act against. There are certain kinds of things, for example, the classic case of yelling fire in a crowded theater, which is free speech that is not protected, right? But, to put somebody, somebody in jail, because he plans to, to yell fire in a public in a theater, would not be a good exercise of the First Amendment.
Sean Mauro: So, it’s difficult to restrain free speech when that speech hasn’t happened yet but was intended to happen. However, in this case, the New York Times had started publishing stories that the Nixon administration said contained classified information and shouldn’t be published. What is the extent of the government’s power to do this?
Roy Harris: The closest case, the case that is often spoken about in legal circles in terms of journalism, is there are certain things like, for example, publishing troop shipment times during a war, that if you were to do something that dangerous is to say that, you know, your troops were going to be landing in a certain place at a certain time and tell the enemy that, that might be a place where prior restraint might be allowed. But this was a case where the New York Times had documents that the government was insisting were secret and were a matter of national defense, national security, excuse me, and what the court ruled in this case and, and kind of set the standard for it, was that you can’t really argue that something is a violation of national security without having any proof or evidence of it.
Sean Mauro: And so, the case of New York Times versus United States went to trial, first heading for a United States district court. Here the court ruled in favor of the New York Times, preventing the government from restraining publication.
Roy Harris: Judge Gurfein, Murray Gurfein on in the article saying, “The security of the nation is not at the ramparts alone security lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authorities in order to preserve the even greater values of freedom of expression and the right of people to know.” So, the danger of a, of national security being violated by the reporting of these documents, was not of the same level as, for example, endangering troops during war time. That would be an example of where prior restraint might be allowed.
Sean Mauro: This was a huge victory for the New York Times and for journalism in general. However, it was short-lived. The case soon went to the United States Court of Appeals, where Gurfein’s ruling was overturned. The New York Times was ordered to stop publishing articles about the Pentagon papers.
Roy Harris: The press was restrained from publishing. The court ordered the New York Times to stop publishing their stories. And of course, this wasn’t the Pentagon papers that they were, that they were printing and it’s often kind of misunderstood or misstated. Even the Pulitzer Prizes say the prize was awarded for the publication of the Pentagon papers. But it wasn’t. It was re-, it was it was awarded for the articles, for the research and the articles and the investigative work that was done to report on the Pentagon papers.
Sean Mauro: The New York Times followed the order and stopped publishing articles about the documents. However, other outlets started to get their hands-on excerpts from the Pentagon papers as well and published their own reporting.
Roy Harris: Uh, what the government did the attorney general, John Mitchell, under Nixon, um, ordered that the Times stop publishing and the Times chose to do that after that order. I mean, nobody went in and closed down the presses. Uh, they chose to do it, and that’s when the Washington Post and other newspapers St. Louis Post-Dispatch, Boston Globe, and all those, um, did in fact pick up with publishing stories based on the papers, which they had gotten also. So that distinction, I think, is worth making that, that this wasn’t publishing secret documents. This was writing articles about the secret documents, and I think that’s a good distinction.
Sean Mauro: However, this wasn’t the only way the public gained access to the information. Concerned about the press being restrained, Senator Mike Gravel from Alaska called a late-night Senate subcommittee meeting, where he entered an edited portion of the Pentagon papers into the Senate record. This was to ensure the public could still read about the U.S. involvement in Indochina, even if the Nixon administration succeeded in stopping publication. Gravel cited the speech and debate clause of the Constitution, which prevents members of Congress from being arrested while attending a session of Congress or being arrested for anything spoken during that session. Did the court rulings about the New York Times’ publication have any impact on the potential legal reactions to Gravel?
Roy Harris: Okay. Yeah, it’s a good question, but it’s, I think it’s a complicated answer, because first of all, what my understanding was what Senator Gravel was reading into the record was really the direct Pentagon papers that have been written up, that had been ordered by Secretary McNamara and, and had covered what had gone on in the Vietnam War for those previous administrations. And what the New York Times did, of course, was to publish news stories, not to publish the Pentagon papers. So, it was a, it was a different thing. Um, whether the actual secret documents should have been read into the record, I think was was a different issue. Um, it was interesting that you brought that up because I really hadn’t thought about that. Because it wasn’t, it wasn’t that he was reading the New York Times or the Washington Post accounts of the — of the Pentagon papers. He was reading the actual secret documents.
Sean Mauro: The case eventually went to the Supreme Court. The Nixon administration argued that the publication violated the Espionage Acts. However, the New York Times argued against this, and that they had a First Amendment protection against this type of censorship. The Court upheld Gurfein’s original ruling in a six-to-three decision. Justice Hugo Black stated that “only a free and unrestrained press can effectively expose deception in government.” In agreement with the New York Times, Justice Byron White said that “in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.” These judicial opinions would have a major impact on the future of journalism.
Roy Harris: The very, very near-term future is probably better known that, um, other papers joined in. And so that indicated that one of the impacts was that other newspapers picked up the ball and rallied around each other which doesn’t always happen. But that was certainly one impact, was that competing news organizations worked to get the story told, and uh, there was kind of that group, group feeling of, of the press, which doesn’t always happen. In the longer term, I think one of the great impacts is that it kind of set a pattern for this kind of investigative project reporting.
As I was looking at the kinds of newspaper stories that were, or news stories in general, that were, that were awarded Pulitzer prizes over the decades after the Pentagon papers, you see an awful lot of cases of this, teams being assigned by editors to to deeply research an issue. Watergate just the next year would be an example. But there are many, many more, um, year after year they’re more people would kind of cite the Pentagon papers approach by assigning teams as the, as the New York Times did with the Pentagon papers, assigning teams to research and write the stories and come up with a couple of examples. I’ll just, it’s been a big and small, Watergate, obviously being a big one. Much later you have the, the Boston Globe, the case with the Catholic Church story and the pedophile priests, which became a global story, but it was another case of assigning a huge team to do it, to do intensive research and to build up your case before the very first story is published. And that was the case with the, with the Pentagon papers, of course, as well, but so many smaller stories over the years um, a lot of them involving the military.
There was the case of the, of the Walter Reed military hospital, again, the Washington Post, which won a Pulitzer in 2008. And that was a case of the team of reporters going into Walter Reed and looking at the deficiencies in the hospital that was, um that were handicapping soldiers, wounded soldiers that came back from Afghanistan and elsewhere, and they really, again, did a serious job of that. The government could have probably stepped in and said, ‘Well, this is a violation to report these things about what’s going on in the military hospital.’ But the overwhelming case was, was justified in — by, by what they wrote, what the teams did.
Sean Mauro: Had the Nixon administration won the case, the future of journalism would look extremely different. The government would be able to lean on this Supreme Court precedent to restrain any publication they deemed a matter of national security that shouldn’t be reported on. This would give journalists much less power in reporting on sensitive issues.
Roy Harris: If the Nixon administration had won the case, what it would have done, I think, from my view of the media, is that it would have created this constant war going on. There certainly would have been appeals along the way and other cases of that coming, especially with Vietnam still raging, that whenever a news organization got secret documents and wrote about them it would be a much tougher challenge to get them published. And I think, I think that battle would have gone on over and over again. I don’t think that the press would have knuckled under and just said, ‘Well, you know, this was stamped secret, so I can’t write about it.’ Again, everything. And this was certainly should be true from the standpoint of the press, is that everything should be judged on its merits and not on some rule that says, ‘Ah, you can’t do it because it’s got a red marking on it.’
That would be my view of it. Since the court did rule so strongly and so eloquently in favor of the media, it assured that that freedom of the press was elevated to a high level. It became, you know, the First Amendment, not the Fifteenth Amendment. And so, um, by, by elevating it to that high level, the press was free to, I think, to continue challenging. What would have happened, I think, would have been a lot of publications that couldn’t afford to take a chance, like the New York Times could, but a lot of publications probably would have backed away and said, ‘You know, I can’t afford to have the government come after us on this.’ So, um, that might’ve been one, one impact of it. But instead the very strong feeling that the press was an equal to the government, really, is what they’re saying. That the press is just as important and maybe in fact more important, because the country needs to have people given information in order to make decisions about who the heck’s gonna run the government
Sean Mauro: That wraps up this podcast on the Pentagon papers and the New York Times versus United States Supreme Court case. For William Paterson’s Communication Department, my name is Sean Mauro.
Teri Finneman: Thanks for tuning in, and be sure to follow us on Twitter at @JHistoryJournal. If you like our podcast, leave us a rating and a review wherever you listen to podcasts. Until next time, I’m your host, Teri Finneman, signing off with the words of Edward R. Murrow, “Good night, and good luck.”