Protecting Whistleblowers | New York Times Co. v. United States
Mr. Beat presents Supreme Court Briefs Washington D.C., June 17, 1967 Secretary of Defense Robert McNamara creates the Vietnam Study Task Force at the Pentagon to create a study of the Vietnam War, which, by the way, was raging on the time with no end in sight. This study was to remain classified but released to the public eventually, as McNamara wanted to leave a written record for historians. Working on this task force was a dude named Daniel Ellsberg, who became very troubled by what he found. You see, the Pentagon was telling the American public one thing, but actually doing other things. For example, the Pentagon was lying about escalating the war even when victory was hopeless. It had covered up doing some quite horrible things, like illegal bombings in places like Cambodia and Laos, and the use of chemical warfare. Well Ellsberg, who had become strongly against the Vietnam War, decided he was going to fight the power! In October 1969, he and his friend Anthony Russo began secretly photocopying pages from this study, which eventually became known as The Pentagon Papers. By the way, the Pentagon Papers were thousands of pages long. So yeah, he photocopies and decides to take them to the press to expose all of the Pentagon’s dirty secrets. In March 1971, he gave 43 volumes of the Pentagon Papers to Neil Sheehan, a reporter for The New York Times. On June 13, 1971, the New York Times began publishing a series of articles based on what Ellsberg had leaked. It also included excerpts from the actual Pentagon Papers. When President Richard Nixon read these articles, he was like, “this kind of makes our government look bad…plus, isn’t this putting our national security at risk?” By the way, that’s EXACTLY how he sounded. A couple days later, the Nixon administration got a federal court to force the New York Times to stop publishing articles about the Pentagon Papers. Nixon’s Attorney General, John Mitchell, argued that Ellsberg and Russo were guilty of breaking the Espionage Act of 1917, so this “prior restraint,” or pre-publication censorship, was justified. In fact, the Nixon administration argued that the Times publishing the Pentagon Papers put the country’s security at risk. Meanwhile, the Washington Post got in on the action and began publishing its own articles about the Pentagon Papers. The assistant U.S. Attorney General, William Rehnquist, a future Supreme Court chief justice, also tried to prevent the Post from publishing any more Pentagon Papers secrets. Eventually, 17 other newspapers published parts of the study. On June 28, 1971, Ellsberg surrendered to face criminal charges under the Espionage Act. The next day, a young Senator named Mike Gravel, who inexplicably throws a rock in a pond later in life, read the Pentagon Papers out loud for three hours, entering them into the Senate record. As you could imagine, by the time the American public is fired up about the revelations contained in these documents. Newspapers kept publishing stories about the Pentagon Papers, and the District Court for the District of Columbia and Court of Appeals for the DC Circuit both let them, so the Supreme Court decided to quickly step in, combining the cases against both the New York Times and the Washington Post. In case you hadn’t figured this one out by now, this was an obvious First Amendment issue. The Court heard arguments about whether or not the Nixon administration’s efforts to prevent the publication of the Pentagon Papers went against the First Amendment. Was prior restraint justified? Did releasing this information put national security at risk? The Court decided “no.” On June 30, 1971 (man that went quickly) the Court announced it had sided with The New York Times and Washington Post, voting 6-3. It said prior restraint was not justified, and that the press releasing the Pentagon Papers did not put the nation’s security at risk. It sure made a lot of Americans upset though, and caused many to lose their trust in their government. Justice Hugo Black wrote, “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.” I would read the whole quote to you but it’s kind of long, but dang it’s a good quote. Props, Hugo. New York Times v. United States, aka The Pentagon Papers Case, was a win for the First Amendment. If the press publishes something that makes the government looks bad, the government can’t stop it, just because it makes it look bad. So whatever happened to Daniel Ellsberg and his friend Anthony Russo? They were still charged under the Espionage Act, looking at a maximum sentence of 115 years in prison. However, due to government misconduct and its shady ways of getting evidence, a federal court judge later dismissed all charges against them. Daniel Ellsberg is still alive today, still actively supporting whistleblowers like him who continue to expose government corruption. I’ll see you for the next Supreme Court case, jury! Why did I make this episode now? Well, there’s the whole President Trump not wanting this book out that makes him look bad thing but also there’s this new movie that just came out, called The Post. the story of the leaking of the Pentagon Papers And in it, of course, it dramatizes New York Times v. United States. So I figured, it’s a good time to release this episode. Yay for history movies! We’ll see you next week. Thank you for watching!