| History And Background Of New York Times Co. V. United States |
Article Index for History And |
Website Links For History |
Information AboutHistory And Background Of New York Times Co. V. United States |
| CATEGORIES ABOUT HISTORY AND BACKGROUND OF NEW YORK TIMES CO. V. UNITED STATES | |
| united states constitutional case law | |
| united states first amendment case law | |
| 1971 in law | |
| united states supreme court cases | |
| united states free speech case law | |
| american media history | |
|
BACKGROUND Section 793 of the Espionage Act Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell , a Watergate conspirator, as cause for the United States to sue to bar further publication of stories based upon the Pentagon Papers. The statute was spread over three pages of the ''United States Code Annotated'' and the only part that appeared to apply to the ''Times'' was 793(e), which made it Criminal for: Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it. Text of Espionage Act at Findlaw.com Based on this language, Bickel and Abrams felt there were three preliminary arguments to raise. First, the wording of the statute was very broad. Was each article about foreign policy one "relating to the national defense"? What was the significance of "reason to believe" that the Pentagon Papers "could be used to the injury of the United States or the advantage of any foreign nation"? If the motivation was to educate the public, was that a defense that served to help, not hinder, the country? Would the public be "a person not entitled to receive" the information? Of equal import was what the statute did not say: No references to "publication" (as Attorney General Mitchell's cease-and-desist order referenced), no reference to classified information, and no support for Mitchell's reliance on the top secret classification to justify restraint on publication. Additionally, there was no statutory language providing authority for prior restraint on publication at all. Second, was the relevance of Mitchell's reliance on a criminal statute in a civil proceeding seeking prior restraint. There was Supreme Court precedent that lent support to the idea that bans on the publication of information by the press to be unconstitutional. In 1907 Oliver Wendell Holmes wrote the "main purpose" of the First Amendment" was "to prevent all such previous restraints upon publications as had been practiced by other governments." In 1931 the Court wrote that only the narrowest circumstances--such as publication of the dates of departure of ships during wartime--were permissible. In 1969 John Marshall Harlan II wrote the Supreme Court "rejected all manner of prior restraint on publication." This second line of reasoning made it seem the statute should only be dealt with in passing, making the case a First Amendment one and the relief the government wanted--a bar on publication--unavailable. The third possible approach was a very broad view of the First Amendment, one not focused on the impact of a government victory on the life of a democratic society if prior restraint were granted; but that the publication of just these sorts of materials--governmental misjudgments and misconducts of high import--was exactly why the First Amendment existed. PROCEDURAL HISTORY Restraining order sought The government filed a , president and publisher; Harding Bancroft and Ivan Veit , executive vice presidents; and Francis Cox , James Goodale , Sydney Gruson , Walter Mattson , John McCabe , John Mortimer and James Reston , vice presidents. Also, John Oates , editorial page editor; A. M. Rosenthal , managing editor; Daniel Schwarz , Sunday editor; Clifton Daniel and Tom Wicker , associate editors; Gerald Gold and Allan Siegal , assistant foreign editors; Neil Sheehan , Hedrick Smith , E. W. Kenworthy and Fox Butterfield , reporters; and Samuel Abt , a foreign desk copy editor. Federal judge , June 16 , 1971 . Hess relied on Secretary of State William P. Rogers 's statement reported earlier that day that a number of nations were concerned about the Papers publication and an affidavit from general counsel of the Navy that alleged irreparable injury if publication did not cease. Hess asked for a temporary restraining order. Bickel argued that the separation of powers barred the court from issuing the restraining order, since there was no statute authorizing such relief. He further argued that there was no exception to the general unavailability of prior restraint that applied in this case. Gurfein called all counsel to his chambers and asked Bickel and Abrams to have the ''Times'' cease publication of the Papers until he could review them. Bickel responded that Gurfein would be the first judge in American history to enter a prior restraint enjoining publication of news if he granted the government's request. The ''Times'' refused to cease publication. Gurfein granted the request and set a hearing for June 18. The New York Times agreed to abide by the restraining order. The trial That Friday, June 18, Bill Hegarty, on behalf of the ''Times'', cross-examined the government's witnesses. He did so without preparation: he neither knew who they were or what they would say. By the end of his cross-examination it was apparent there was no proof that publication would cause military harm to the war cause. The session of the court was '' In Camera ''. The critical witness, according to Abrams, was Vice Admiral Francis Blouin, deputy chief of naval operations for plans and policy. In his examination, it became clear that his objections were so far-reaching that things routinely published would be deemed illegal. He referred to material that "would be just better not to make public." He conceded that he "maybe I am oversensitive," and when asked about President Nixon's own public announcement of plans for withdrawal from Vietnam, concluded ruefully, "We just about live by the open book." When Judge Gurfein suggested that many of his objections to what he saw published was in fact already public knowledge in newspaper accounts, books, memoirs and the like, the admiral's only reply was, "I deplore much of what I read." Judge Gurfein throughout the hearing urged the government's witnesses to give specific examples where military security would be compromised by further publication, and each time they failed to cite the danger to publish. Dennis James Doolin, deputy secretary of defense for international security affairs, was called by the government to testify as to the propriety of classifying the Papers as top secret. He was unable to give any specifics that gave sound cause for doing so, and as he went on, "Judge Gurfein gave every indication that he was losing respect for the seriousness of the government case."''Speaking Freely'', Page 28. In their brief, Abrams and Bickel argued that although Doolin was the witness with the most familiarity with the Papers, he gave no testimony that met the '' Near V. Minnesota '' test for establishing justification for prior restraint. Near v. Minnesota All lawyers in the trial agreed that the central issue in the case rested upon the Supreme Court's leading decision on prior restraint, '' Near V. Minnesota ''. ''Near'' struck down a Minnesota statute that permitted injunctions against news stories that were "malicious, scandalous and defamatory." Chief Justice Charles Evans Hughes 's opinion made clear that the First Amendment's "chief purpose of the guaranty to prevent previous restraints upon publication"; however, he offered examples of what would ''not'' be allowed. He wrote: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops"[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=283&page=697 ''Near v. Minnesota, 283 U.S. 697, 716 (1931) "All sides quickly compressed the ''Near'' language into a single question critical to our case," wrote Abrams: "Was there an example of material in the Pentagon Papers akin to revelation of details about a 'transport'?"''Speaking Freely'', Page 30. Judge Gurfein welcomed the cohesion of counsel in settling upon the central legal issue in the case. The federal trial court's ruling On Saturday, June 19, Judge Gurfein issued his opinion. "It was a stunning, total vindication of the ''Times''," wrote Abrams.''Speaking Freely, Page 30. The government did not even produce enough facts to show a clash between "vital security interests of the Nation and the compelling constitutional doctrine against prior restraint." The "''in camera'' proceedings did not convince this Court that the publication of these historical documents would seriously breach the National security." Further, the Court noted: These are troubled times. There is no greater safety valve for the discontent and cynicism about the affairs of the Government than freedom of expression in any form. This has been the genius of our institutions through our history. It has been the credo of all our Presidents. It is one of the marked traits of our national life that distinguish us from other nations under different forms of governments.''Speaking Freely'', Page 31. U.S. Court of Appeals for the Second Circuit The ''Times'' met a hostile Court Of Appeals For The Second Circuit on appeal. "Bickel was pounded mercilessly by Chief Judge Henry Friendly from the moment he rose to respond," wrote Abrams.''Speaking Freely'', Page 32. Throughout the case Abrams reported he was asked by peers and strangers how he felt representing traitors, and Friendly's questioning reminded him of this mentality.
The next day the court ruled 5-3 against the ''Times'' and remanded to Judge Gurfein for further '' In Camera '' hearings, requiring him to decide by July 3 whether publication of any of the articles "pose such grave and immediate danger to the security of the United states as to warrant their being enjoined." Since '' Near V. Minnesota '' made it clear that prior restraints were to be all but banned, the ''Times'' was faced with a ban on publication for at least 19 days, more if the Supreme Court was to consider the issue. The Ninth Circuit's order was Interlocutory --not final--and the Supreme Court rarely hears such cases, so a direct appeal for a Writ Of Certiorari was not an appealing prospect. Writ of certiorari filed On June 24 Abrams filed the writ with the Supreme Court. When he arrived the clerk of the Supreme Court was waiting on the top step outside, along with a throng of photographers. "The justices were wondering when you would arrive," said the clerk. Although Abrams had concern they would not hear the writ because of the interlocutory nature of the Ninth Circuit's ruling, he realized that the case was not ordinary litigation, but "an extravaganza, a mixture of law, politics and journalism that had always been bound for the Supreme Court."''Speaking Freely'', Page 36. THE SUPREME COURT CASE See Also: New York Times Co. v. United States Background
' political and military involvement in the Vietnam War . In his book, Abrams states, "The most striking thing about the order granting our petition...was contained in the final paragraph." Abrams not only filed a petition, but also filed a motion for the Supreme Court to Vacate the ruling by the court of appeals; in other words, they asked for total victory without argument. Justices Black , Douglas , Brennan and Marshall were prepared to hand them this victory. But the other five justices were not. Their Brief summarized the facts, the rulings of the lower courts, and began with co-counsel Alexander Bickel 's "legal poetry" that the Supreme Court itself adopted: Prior restraints fall on speech with a brutality and a finality all their own. Even if they are ultimately lifted, they cause irremediable loss, a loss in the immediacy, the impact of speech. They differ from the imposition of criminal liability in significant procedural respects as well, which in turn have their substantive consequences. The violator of a prior restraint may be assured of being held in contempt. The violator of a statute punishing speech criminally knows that he will go before a jury, and may be willing to take his chance, counting on a possible acquittal. A prior restrain therefore stops more speech, more effectively. A criminal statute chills. The prior restraint freezes. The solicitor general's office violated accepted court practice and did not advise Abrams of their motion to conduct part of the argument in secret because national security matters would be discussed. This is called a limited '' In Camera '' argument. By a vote of 6-3, the Court denied the motion. Justices Potter Stewart and Byron White joined the four above-mentioned justices. Arguments Abrams felt Griswold faltered immediately when he started with irrelevant and unexceptional arguments. Justice Stewart cut to the meat of the case when he asked Griswold directly about the importance of the classified status of the documents the Times printed: Stewart: As I understand it, Mr. Solicitor General , and you tell me, please, if I understand it, your case does not really depend upon the classification of this material, whether it is classified or how it is classified. In other words, if the ''New York Times'' and the ''Washington Post'' had this material as a result of the indiscretion or irresponsibility of an Under Secretary of Defense who took it upon himself to declassify all of this material and give it to the paper, you would still be here?" This was, in Abrams's opinion, the weakest argument he could have made. CRITICISM OF THE CASE AFTERMATH AND LEGACY QUOTES ABOUT THE CASE
TRIVIA
RESOURCES
SEE ALSO REFERENCES |
|
|