The Pentagon Papers: The Free Press vs. Government Secrecy

Twentieth Century Fund Task Force on the Government and the Press

In 1971 journalists obtained some confidential Pentagon reports—which came to be known as the "Pentagon Papers" —that revealed information about the American involvement in the Vietnam War. The government sued to stop the newspapers from publishing the documents; various major newspapers, including the New York Times and the Washington Post challenged the order, carrying the case all the way to the Supreme Court. The Court ruled that there was no evidence that publication of the documents posed a threat to national security. Therefore, prohibiting the newspapers from publishing them was an unconstitutional act of prepublication restraint. This case was viewed as a triumph for advocates of a free press.

Source

Stanley N. Worton, Freedom of Speech and Press. Rochelle Park, NJ: Hayden Book Company, Inc., 1975. Copyright © 1975 by Hayden Book Company, Inc. Reproduced by permission.

The following selection was excerpted from a report by the Twentieth Century Fund Task Force on the Government and the Press. Published in 1972, soon after the Supreme Court's ruling on the Pentagon Papers, the report discusses the arguments of the various justices and examines the implications of the case for the press. The authors conclude that government secrecy is detrimental to a free society and that an unfettered press is necessary in order to prevent government misconduct. For these reasons the press must be free to function without fear of prepublication restraint.

Primary Source Text

A fundamental problem of the relationship between governmental power and the press was posed unexpectedly in June of 1971 when the New York Times, the Washington Post and other newspapers published what has become known as the Pentagon Papers—a group of documents compiled from Defense Department files for a study of the origins of American participation in the Vietnamese war.

The circumstances that surrounded the publication challenged many concepts of the security classification system with which the United States has lived, however uneasily, for a number of decades. The study itself, which had been ordered by Robert S. McNamara while Secretary of Defense, was classified Top Secret. There had been no authorization by any responsible government official for its release to the press. Many of the individual documents, consisting to a great extent of memoranda produced by high officials in the early sixties, were quoted directly by the newspapers without any effort to paraphrase and "fuzz over" their nature. Finally, the sheer bulk of classified material—some 7000 pages—invited a governmental response. The papers could not be ignored, which is and has been the customary official reaction to leaks of individual bits of classified information from Washington.

Initially, the government reaction was to seek injunctions in the Federal courts against further publication of the documents which were being released in serial form. For the purposes of this report, it is unnecessary to trace the various steps of the litigation. The important fact is that on June 30, 1971, the Supreme Court of the United States, by a vote of six to three, dissolved injunctions by lower courts permitting the newspapers to resume publication.

Even though it decided the case, the Court's decision did not resolve the conflict. The Justices were divided even more deeply than the six to three decision indicated, and each member set forth his own views in separate statements. The Court majority concluded that the government did not have the right to prevent the publication of the specific documents in question. But the judicial door seemed pointedly held open for future prosecutions for having published the papers. It would be fair to sum up the effect of the decision as one which told the newspapers that they could publish a specific set of documents at their own risk.

For the press as well as for students of the problems of a free society, the outcome did not clarify, once and for all, the relationship between the press and the government. At the heart of the issue was the question of pre-publication restraint—whether there are circumstances under which the government has the right to prevent publication. Journalists and commentators have generally assumed that the government has no such right, whatever may be the legal authority to prosecute after the fact for the publication of material offensive to the law. There have been very few cases in the Federal courts bearing upon the issue, and in the Pentagon Papers case the government conceded there had been none which raised the problem in the context of national security.

The Opinions of the Justices

It is worth noting the wide range of attitudes among the Supreme Court Justices on the issue of pre-publication restraint. According to the late Justice [Hugo] Black, "every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment;" but according to Justice [John] Harlan, prohibiting prior restraints does not reach "to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here."

To Justice [William] Douglas the First Amendment left "no room for governmental restraint on the press." By contrast, Justice [Harry] Blackmun argued that "the First Amendment, after all, is only part of an entire Constitution. . . . Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. . . . What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent." Justice [William J.] Brennan stated that the First Amendment "tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjuncture that untoward consequences may result," although he conceded that "there is a single, extremely narrow class of cases (when the nation is at war) in which the First Amendment's ban on prior judicial restraint may be overridden."

Justice [Byron] White held that "prior restraints require an unusually heavy justification under the First Amendment," and concurred in the majority finding because he did not believe the Government had met the test. But Justice [Potter] Stewart commented that "I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court." Justice [Thurgood] Marshall noted that Congress has specifically declined to grant the type of authority that the Government sought, adding, "It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially law that Congress has refused to pass."

Chief Justice [Warren] Burger, who dissented from the majority, agreed that there are constitutional limitations on prior restraint. He went on to say that "adherence to this basic constitutional principle, however, does not make this case a simple one. In this case, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the executive. Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such a case as this to be simple or easy."

In sum, while basic issues were posed, basic issues were not resolved. The outcome should not be considered a criticism of the Supreme Court. There is good reason to believe that the ends of justice are frequently best served when decisions are made on the narrowest possible grounds, and that sweeping questions of policy are best determined in other arenas. But whatever merit there may be to this view, the fact remains that there is as yet no authoritative concept of whether publication boundaries exist. . . .

In retrospect, it is hardly surprising that the Supreme Court decided the case on relatively narrow grounds or that the public debate was largely irrelevant to the long range issue affecting the press. Whatever may be the venerability of the doctrine of no pre-publication restraint, the publication of the Pentagon Papers raised the issue in a new context which could not have been foreseen by those who wrote the First Amendment. But if the context is new, it does not necessarily invalidate the principles which have governed past conduct. What is clear is that a reexamination is in order. The circumstances of the case required that the litigation be settled within a few weeks, which was hardly an atmosphere conducive to reexamination of underlying issues. From this standpoint, the conduct of the Supreme Court was probably an exercise in wisdom in which the decision did no violence to traditional concepts of freedom of the press while the individual opinions left open the possibility of calmer assessment. . . .

The Political Climate

It . . . is necessary to take into account the general background against which the government's action took place. For at least twenty-five years, the United States has regarded itself as being at "war," whether "hot" or "cold," with an alien ideology. A people who are "at war" have a tendency, rightly or wrongly, to regard the normal processes of democratic life as subordinate to the goal of victory. A plea that certain information must be suppressed to keep it from the hands of an "enemy" or to permit the formation of alliances for "survival" has a much higher degree of acceptability in such an atmosphere than it would in more placid or pacific times.

The psychology of war also fosters a trend of thought which is difficult for a group to discuss calmly. It is based upon the assumption that there are different categories of "rights"—some a matter of "survival" and others a form of "luxury." Under such an assumption, the rights granted to an individual have a tendency to wind up in the second category and those granted to the government in the first. This condition fosters a predilection for very strict enforcement of constitutional guarantees for individual rights in times of serenity when such guarantees are not needed and for forgoing the "luxury" in times of stress.

This type of thinking is more likely to characterize popular debate than judicial confrontation, and no member of the Supreme Court voiced such thoughts in relationship to the Pentagon Papers. But it is only one step removed to conclude that there are certain areas in which some constitutional rights are mutually exclusive, and, therefore, a choice must be made. This consideration did influence the thinking of some court members, most notably the Chief Justice [Warren Burger] when he contrasted the "imperative" of an unfettered press with the "imperative" of "effective functioning" of government. His coherent statement can fairly be said to represent the thinking of a large body of responsible men and women who do not regard themselves as in any way opposed to a free press or a free society. It deserves careful analysis.

At first glance, the statement appears unexceptionable. For at least three decades, the nation has accepted the concept that there are "secrets" which would injure the United States if they were revealed to a hostile world. Obviously, it is impossible to publish such secrets in the public press without disclosing them to an enemy. Therefore, the right of a free press is incompatible with government effectiveness, and one must yield to the other. Once this line of reasoning is established, there seems to be little else to discuss than the effectiveness of individual systems for maintaining the necessary secrecy while permitting the maximum degree of press freedom that is possible under such conditions.

It is possible to buttress this line of thought with a number of hypothetical examples which touch off emotional responses that subordinate critical analysis. Usually, they take the form of questions: Would you permit a newspaper to publish the movements of troop ships when enemy submarines are lurking offshore? Would you permit a newspaper to publish codes that would enable an enemy to learn our battle orders? Would you permit newspapers to publish stories that would reveal our weak spots in time of war? Would you permit newspapers to publish our plans of attack and the forces we are going to use?

The short and simple answer is that these questions pose only hypothetical dangers. The practicalities are well illustrated by the system of voluntary censorship set up through government-press cooperation during World War II. Despite occasional slips, usually inadvertent, these voluntary arrangements were entirely adequate to serve military necessity.

But while the dangers inherent in press freedom are largely hypothetical, the threat that would be posed to press freedom by pre-publication restraints is very real. There is historical experience available, because what we now regard as the "free press" emerged only after a long struggle against licensing. The nation's founders knew what they were doing when they wrote the First Amendment. They had learned through bitter experience that no man—no matter how well intentioned—can be entrusted with the power of censorship.

It is apparent that the doctrine of pre-publication restraint can be made effective only through the use of censorship. Usually, the kind of material to which the government objects is not published in serial form. The Pentagon Papers were something of an exception in this respect, and it is unlikely that this kind of exception will occur again. If the government is really worried about its secrets, such fears can be allayed only by inspecting newspaper editions before they hit the streets. Such a practice would open nightmarish prospects for our free institutions. . . .

The Problem with Governmental Secrecy

There is a peculiar characteristic to governmental secrecy that stems from the fact that there is no known method of confining its exercise to limited areas upon which reasonable persons can agree. Because classified security material cannot be examined by the public, the public cannot know whether only material essential to the nation's security is being classified. When people do not know, they tend to become suspicious. These suspicions may not assume a dangerous form when times are good and governmental policies are working well. But at the first setback—and setbacks are inevitable no matter how wise political leaders and their policies may be—the suspicions emerge as a hardened conviction that secrecy has been used to conceal blunders or even fraud and venality. At that point, the declassification and revelation of classified papers does little to restore confidence. An administration that has once resorted to unjustified secrecy can do little to assure a disaffected or skeptical electorate that it is coming clean.

A society without traditions of freedom can handle such disaffection by physical suppression. A free society is a different proposition altogether. Unity cannot be sustained by rifles and police. It requires the confidence of the electorate. Without that confidence, a free government becomes ineffective.

The cost of secrecy is not confined solely to the breeding of suspicion that the government is playing fast and loose with the public trust. It is also a device for cutting off the public debate through which the citizens of a nation prepare themselves for the consequences of great decisions which may mean considerable sacrifice. Nowhere is this better illustrated than in the Pentagon Papers.

The significance of the Pentagon Papers to historians is highly debatable. Whether they shed light on the entry of the United States as a military force in Vietnam is something that cannot, at this point, [in 1972], be determined. But they are unquestionably revealing in terms of the quality of discussion which governed that entry. The most notable characteristic of the passionate debate which was going on within governmental circles is that it took place virtually out of sight and earshot of the public. The American people had only the faintest inklings of the facts and the decisions which were to determine their destiny.

Furthermore, the debate was not conducted under circumstances which fostered calm judgment. Within the government itself, only a relative handful of people were privy to all the facts and options. Yet even this handful were conducting themselves under circumstances which violated all the rules of adversary discussion. They were in a position to write memoranda but could not be certain who would read them or what effect they would have. They did not confront contrary points of view in situations where they could find out what arguments they had to counter. They had no real chance to test their own thinking against others.

In this connection, the Pentagon Papers provide an ironic example of the ultimate futility of secrecy. The papers were put together as a result of Secretary McNamara's request for a study to assist future policy planners in avoiding mistakes made in Vietnam. Once the documents were assembled, fifteen copies were printed and locked up where it was highly unlikely that any future planners would even see them. It is difficult to regard this procedure a satisfactory method for learning from history.

One function of public debate is to test ideas in the marketplace of thought. Another function is to prepare people psychologically for stormy days ahead. In regard to the Vietnamese war, neither function was carried out. On the contrary, all informed discussions took place under a "security" tent. This process left the public in the bewildering position of finding itself involved in a major conflict with no idea of how it got into it or what it was fighting for. Did the United States gain enough advantages from its policy of secrecy to justify the price paid in loss of public confidence? On balance, has the secrecy that was practiced strengthened or weakened the nation?

The members of the Supreme Court addressed themselves to the propriety of the specific classifications of the Pentagon Papers and to the rights of the government to seek injunctive relief. The task force urges the nation to ponder a broader question—the wisdom of unchecked secrecy itself.

The task force does not propose the abolition of the security classification system, although we favor a serious study of it by a disinterested group. We are well aware that government of any character will continue to practice secrecy—for good or for bad reasons—in many of its operations. Government officials are human beings, and humans generally assume they have a right to privacy in the conduct of their affairs. It is difficult to convince a person that he does NOT have that right simply because his affairs are in a public domain.

The Importance of a Free Press

Excessive secrecy is inimical in a free society, and should be combated. But we doubt whether a law can be fully adequate to guarantee public inspection of the conduct of public business. The task force believes that an effective and essential instrument to achieve this end is a free and responsible press—free to investigate; free to interrogate; and free to publish.

When we weigh the imperative of secrecy against the imperative of an effective government in a free society, we believe that balance is more heavily weighted in favor of the latter.

Admittedly, a free press is a troublesome institution. It can be, and frequently is, arrogant, obnoxious, wrong-headed. We have no illusions as to its reluctance to correct its own faults. But none of its defects is so grave as to justify the abridgment of freedom. Liberty is far too precious to be abandoned out of fear of unpleasant consequences.

Basic to freedom is the right to publish. Obviously, this is a right which entails risks—as does every other right in a free society. The founding fathers did not present the Constitution as a document to insure a painless world. They claimed that it would safeguard liberty, which they considered a fundamental objective.

The task force has neither seen nor heard persuasive evidence that a free press will bring about the downfall of our nation. That latter condition is much more likely to come about through efforts of overly-zealous government officials to protect the public from knowledge of how the public's business is transacted.

But we have seen and heard persuasive evidence that a free government can be effective only when it has the confidence of its citizens. The free press is the most effective instrument known to sustain that confidence. Therefore, a majority of the task force urges that our leaders regard the doctrine of no pre-publication restraint as absolute. No matter what the difficulties, that long-term result will be a stronger and more united nation.