The U.S democracy is supported by a free press as one of its main pillars. The importance of a free press was evident from independence. After the constitution was written, the public expressed disappointment that such an important document failed to mention individual rights and freedoms and to guard them explicitly against violation by any arm of government. It was feared that a strong federal government may use its powers, in absence of any restrictions, to curtail freedom of religion, press, assembly, and of speech. Over the years the Supreme Court had interpreted this amendment to a varying degree as in Schenck v. United States 249 U.S. 47(1919) when the Supreme Court held the First Amendment may become subject to prohibition when used in a way that can create a clear and present danger.
The New York Times Co. v. United States, 403 U.S. 713 (1971) was brought by the government against the New York Times newspaper for publishing stories based on Pentagon documents. The case is popularly referred as `The Pentagon Papers Case'. In the case the government of the United States was seeking court orders to bar the New York Times and the Washington Post from publishing the documents arguing that the documents contained classified government materials whose release would endanger the security of the U.S. The material in question was a seven thousand page documentary of the Vietnam War that had been done between 1967 and 1969 detailing government deception regarding Vietnam War. The papers showed how the government lied to Congress and to the American public about the facts of the war.
The Pentagon papers were copied by Daniel Ellsberg, an employee of the RAND Company who worked in the Department of Defense under McNamara and who was part of the group that compiled the Pentagon papers. Ellsberg released the report to New York Times which started publishing the content on June 13, 1971. The government asked the paper not to publish more of the content but the paper refused. The government went to court and obtained a prior restraint court order preventing the paper from publishing more. This was the first time since Abraham Lincoln's administration that the courts issued a prior restraint court order often considered the highest form of censorship. The paper appealed but before the appeal could be determined; Ellsberg released the copies of the report to Washington Post. The government sought an injunction to block the Washington Post but this was refused.
The case ended up in the Supreme Court within two weeks and by a decision of 6-3, the Supreme Court decision was that the prior restraint was unconstitutional. The question that the court had to determine were the extent to which the First Amendment freedoms were protected; whether they were absolute or whether they could be restricted in certain circumstances. The court had also to determine what constitutes a threat to national security and whether indeed the need to uphold security superseded the freedom of press guaranteed by the First Amendment. Finally the judges were faced with the task of determining whether publication of the Pentagon Papers amounted to a security threat.
According to New York Times attorneys, the First Amendment guaranteed the freedom of the press under which the paper was operating under. The freedom of the press therefore protected the paper from incurring any liability. The attorneys argued that the press should be left free to do what it exists to do; to keep the American people informed. In addition they argued that the government failed to prove that by publishing the Pentagon papers, the press would endanger national security. The government's attorneys argued that the First Amendment does not take guarantee an absolute freedom of the press but that such freedom must be excised with responsibility especially when matters to do with the national security are involved.
The government asked the court to strike a balance between the need to protect a free press and the equally important need for the government to maintain security of the nation. Allowing the publication of the documents, the government argued, would threaten the immediate security of the nation, threaten the American troops abroad by creating hostility towards them and set a dangerous precedent for the future. The government was however unable to prove to the courts that there was a real threat to the security of the nation. The court treated this case differently from Schenck v. United States 249 U.S. 47 (1919) in which the court had held Schenck liable for threatening the nation's security in a time of war (Silverman 2003).
The judges decided on the case within two weeks, a short period for such a case, and came to a verdict that was not in favor of the government. The judges themselves disagreed on the finer details of the case but they were all in agreement that "only a free and unrestricted press can effectively expose deception in government and that in revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do. According to the judges "any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity." The government "thus carries a heavy burden of showing justification for the imposition of such a restraint.
There was a precedent to borrow from. One such case was Bantum Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). In this case the publisher went to court seeking temporary injunction restraining the commission formed by the legislature from implementing regulations on sale of obscene literature. The publishers argued that the law was meant to harass the distributors and retailers of the books. The court upheld their argument and the said commission from going ahead with its work. Other cases that were cited include Near v. Minnesota, 283 U.S. 697 (1931) and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).
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The judges observed that the government had failed to show to two lower courts the constitutionality and justification for the imposition of such a restraint. They agreed with the courts that the government had not met that burden. The judges found the government request for prior restraining a violation of the first amendment both in letter and spirit. According to Justice Black `every moment's continuance of the injunctions against newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.' The First Amendment was conceived to give the free press the protection it deserves from the law to play its role in entrenching democracy (Epstein 2007).
The press, the judge stated, exists to serve the governed and not the governors. The government's powers to censure the press were taken away by the First Amendment. The press should serve to inform the public by bringing government secrets to the people so that the government can serve the people with greater accountability. The press was within the law in exposing the deception of the government that used lies to send its citizens to go and die in a foreign land trying to accomplish a mission the same government had already declared a failure. According to Weave and Partlet (2007) the question that arises is whether then the press has an elevated status in collection of news to the extent that it should not matter how they got the information.
The term `security' as defined by the government was declared by the courts as vague generality. The courts observed that "the guarding of military and diplomatic secrets at the expense of an informed representative government provides no real security for the republic." Justice Douglas disputed the governments assertion that the word communicates is broad and covers even publications in reference to the espionage Act (Bank,1972). He argued that the chapter on espionage and censorship had eight sections out of which three of them specifically mention the word "publish." No assumption could therefore be made as to the intention of congress in formulating the law. In his judgment Justice Stewart argued that the President of the U.S possessed immense powers on defense and international relations that were not fully checked by the legislature and the judiciary. As such a free press was the check that would ensure the President is accountable to the people for his actions.
Among the three dissenting judges was Chief Justice Burger who held out that the case at hand was not a simple one and that the freedom of the press guaranteed in the first amendment is actually not absolute. In the current complex modern government the needs of a free press must be balanced by the needs of the Executive in exercising certain constitutional powers bestowed on it. The Chief Justice also observed that the case was also not as simplistic as it was made to look because no judge had all the facts on the case. Justice Harlan and Blackmun agreed with the Chief Justice.
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The Supreme Court's decision immediate effect is that in allowing the press to continue publishing the Pentagon Papers, the Executive was put under pressure to quit the Vietnam War. The government did exactly that and America's involvement in the Vietnam War soon came to an end. The vital part the publications played in ending the war cannot be underestimated and this would not have happened had the court ruled in favor of the government. The position of the press in enforcing accountability in government through an informed public was strengthened.
The court's decision emphasized the importance of a free press and the First Amendment. The decision was bold judging by the content of the Pentagon Papers and the public opinion of the day. The public opinion had turned strongly against the Vietnam War. The judges' vote of 6-3 demonstrated there was a difference in judging the case which means the case was not a simple matter of who is right or wrong. The need to protect the freedom of the press and the need to give the Executive a free hand to fulfill its constitutional duty of maintaining security of the nation would be put on the spotlight going forward. Though the judges differed on the details of the case, it is worth notice that they all agreed on the importance of a free press in checking the excesses of the Executive in a way the Legislature and the Judiciary would not be able to.
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