1971: the Pentagon Papers: when The Times published a secret study of the war in Vietnam, it touched off a constitutional battle with the government. How far does freedom of the press go?

The front-page article that most interested President Richard M. Nixon when he picked up the Sunday New York Times on June 13,1971, concerned his daughter Tricia, who had been married the day before at the White House.

Nixon paid less attention to two other articles on that day's front page, both concerning the Pentagon Papers, a secret study of the Vietnam War by the Defense Department that covered the years 1945 to 1968. Inside the newspaper, there were three pages of excerpts from the study, along with coverage of the war itself, which would not end until 1975.

Those articles and Nixon's later efforts to stop The Times from publishing more about the Pentagon Papers would lead to one of the most important First Amendment cases in American history, one that played a huge role in defining just how free the press should be to report on the workings of government.

Neil Sheehan, a Times reporter, had obtained the study that March from Daniel Ellsberg, a former Pentagon and State Department official who had secretly copied the 7,000-page report in the hope of making it public. For three months, Sheehan, along with other Times reporters and editors, pored over the documents, eventually moving the project to the Hilton Hotel in New York to maintain security.

IT DOESN'T HURT US'

The study showed, among many other things, that over the years the federal government had misled the public about the reasons behind the war and the scope and effectiveness of the war effort.

Executives and lawyers at The Times argued among themselves about whether publishing government secrets during wartime was lawful, patriotic, or proper. (In the end, The Times's regular law firm refused to represent the paper in the case.)

Though The Times announced that the Sunday articles were only the start of a series that would describe and analyze the study, Nixon took no immediate action against the paper, reasoning that the disclosures would be more damaging to the reputations of his Democratic predecessors in the White House than to him.

The administration should "stay out of it," Nixon told an aide, because "it doesn't hurt us."

He changed his mind the next day, after intense lobbying from his national security adviser, Henry Kissinger, who said that allowing the publication of sensitive government secrets would hurt the nation's ability to conduct secret diplomacy around the world. "If other powers feel that we cannot control internal leaks," Kissinger said, "they will never agree to secret negotiations."

So the Nixon administration went to court, arguing that continued publication would do serious harm to the nation's security in a time of war. It said that lives would be lost, the release of prisoners of war would be halted, and peace negotiations taking place in Paris between the U.S., South Vietnam, North Vietnam, and Viet Cong rebels would be harmed.

On Tuesday morning, the government asked a federal judge in Manhattan, Murray I. Gurfein, to forbid further publication. It was Judge Gurfein's first case. He had been appointed to the bench not long before--by Nixon.

PRIOR RESTRAINT 

Gurfein promptly ordered The Times to stop publishing articles on the Pentagon Papers. It was the first time in the nation's history that a court had ever enjoined--forbidden--the publication of a news article on national-security grounds. The Times complied with the order.

The Supreme Court had said in earlier cases that "prior restraints" of speech were problematic, though it had made some narrow exceptions. In a 1931 case, for instance, it said, hypothetically, that "the publication of the sailing dates of [troop] transports or the number and location of troops" could be restrained.

But after hearing testimony and arguments, Gurfein reversed course four days after his initial ruling, saying that the First Amendment prohibits censorship by the government in all but the most exceptional cases.

The government appealed. In the meantime, The Washington Post had also started publishing the Pentagon Papers, and it was sued as well. In short order, appeals courts in New York and Washington reached opposite conclusions, with the New York court halting publication and the Washington court allowing it. The Supreme Court agreed to hear the case.

On June 30, 1971, 15 days after The Times had halted publication of its Pentagon Papers articles, the Supreme Court ruled in favor of The Times and The Post by a vote of 6 to 3.

Justice Hugo Black, in one of the five opinions supporting the Court's decision, said: "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."

Most historians agree that the nation's diplomatic and war efforts were no worse off after the publication.

WATERGATE

Many legal scholars say that the Pentagon Papers case was the most important First Amendment case in the nation's history, one that established the principle that almost nothing can stop the publication of truthful information on matters of public concern.

The publication of the Pentagon Papers did, however, lead at least indirectly to the end of Nixon's presidency three years later: His efforts to find out who leaked the study led to the abuses of Watergate and to Nixon's resignation on Aug. 9, 1974.

Speaking at a conference in January of this year, Ellsberg said the moral of the episode was that people in the government with information about improprieties should speak up. He faulted himself for not acting sooner against the Vietnam War and said that whistle-blowers should not be afraid to reveal secrets in an effort to save lives, even if it means going to jail.

"Don't do what I did," Ellsberg said. "Don't wait until the bombs are falling in Iran. Don't wait until people are dying. Go to the press and reveal."

Sheehan, the Times reporter who first wrote about the Pentagon Papers, later told The Boston Globe that the threat of prosecution had not affected him. "If you're afraid of going to jail," Sheehan said, "if the fear of Richard Nixon locking you up is going to scare you, you have no business being a newspaperman."

BACKGROUND

The Pentagon Papers case was a landmark in the history of the First Amendment. The Supreme Court's 1971 ruling firmly established that the government cannot require the news media to cease the publication or broadcast of sensitive information except under the most extraordinary of circumstances.

BEFORE READING

* Have a student read aloud the text of the First Amendment. As students read the article, tell them to keep the Amendment in mind. How does one balance a free press with national security? Who should get to define "national security"?

CRITICAL THINKING

* Henry Kissinger said publication of the Pentagon Papers would frustrate future secret talks with other countries. What, if any, are legitimate reasons for secret government to-government talks? (Plans for a military or economic strategy against a common enemy might be one.)

* Link the Pentagon Papers articles to a current issue. Remind students that last fall the Times published news of the Bush administration's surveillance of domestic phone calls and e-mails without obtaining required court orders.

DISCUSSION QUESTIONS

* Are the current phone and e-mail surveillance cases similar to or different from the Pentagon Papers case?

* Does the public's right to know outweigh the argument that the Times's disclosures might have affected national security in the Pentagon Papers and electronic surveillance cases?

WRITING PROMPT

* Critics of the leak about tapping phones say there are other ways for government workers to air their concerns. Write a brief essay defending or opposing this position.

FAST FACT

* The Nixon administration ordered a burglary of Danel Ellsberg's psychiatrists office.

WEB WATCH

www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/nixon.html. Audio and transcripts of Nixon phone calls about the Pentagon Papers. Audio requires RealPlayer. Contains adult language.

1. Among the key findings in the Pentagon Papers was the fact that the U. S. government had

a refused to seek the help of allies in fighting the Vietnam Wan

b overpaid private contractors for war supplies.

c rejected negotiations with the enemy.

d misled the American public about the origins of the Vietnam Wan

2. In its argument before a federal judge, the Nixon administration said further publication of the Pentagon Papers would

a raise the financial cost of the war.

b imperil the release of prisoners of wan

c cause Americans to lose faith in their government.

d further the aims of antiwar protesters.

3. In a 1730s decision, the U.S. Supreme Court said that under certain narrow circumstances, the "prior restraint" of speech might be allowed--for example, to forbid publication of information about

a a President's re-election strategy.

b the military budget.

c where American troops were deployed.

d U.S. negotiations with other governments.

4. Briefly explain why President Nixon did not attempt to halt publication of the Pentagon Papers when he first heard about them --.

5. Daniel Ellsberg says he has one regret about the Pentagon Papers affair: It is that

a he did not speak out sooner.

b government secrecy remains.

c the military was not put under tighter rein by Congress.

d President Nixon remained in office for another three years.

IN-DEPTH QUESTIONS

1. Discuss examples of the types of military or national security information should be kept secret and the types that should be divulged to the public.

2. From what you have learned about press free dom, do you think the American press is free enough to report on the government? Should the press be granted more--or less--freedom to investigate public affairs?

1. [d] misled the American people about the origins of the war.

2. [b] imperil the release of prisoners of war

3. [c] where American troops were deployed.

4. He thought previous--Democratic--administrations would be blamed. (Similar wording is acceptable.)

5. [a] he did not speak out sooner.

Adam Liptak is national legal correspondent for The New York Times.