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Supreme Court Rules on Secrecy v. Public's Right to Know

The Pentagon Papers Case, which proceeded through the federal

courts at record pace, presented the U.S. Supreme Court with a sharply

drawn question of great importance to the First Amendment: Does the

judiciary have authority to prohibit publication of information whose secrecy

is characterized by the president as critical to the nation’s security?

On June 30, 1971, the Supreme Court rendered a historic decision that

upheld the right of the New York Times, Washington Post and, eventually,

dozens of newspapers, to publish the so-called Pentagon Papers. The

Court’s decision, hailed by a Times’ editorial for “strongly” affirming “the

guarantee of the public’s right to know,” opened a window onto the

government’s decision-making, and deceit, in the conduct of the Vietnam


Although the ruling represented a landmark victory for freedom of the

press, it was not heralded in the form of an unlimited, absolute right of

newspapers to publish governmental documents. Rather, the High

Tribunal’s decision, delivered as a per curiam opinion--an opinion issued in

the name of the court rather than an individual Justice--reminded the

citizenry that prior restraint remained lawful, but only if publication

represented a “grave and immediate danger to the security of the United


The Nixon Administration had sought an injunction to prevent the

newspapers from publishing the Pentagon Papers. Solicitor General Erwin

Griswold, the legendary former Dean of the Harvard Law School, told the

Justices that publication would be akin to Chief Justice Hughes’s

prohibition on “the sailing time of a troop vessel” since it would endanger

the lives of American soldiers, undermine the peace process and impair

diplomatic relations with other countries whose secrets might be exposed.

The attorney for the New York Times was Alexander Bickel, an eminent

constitutional law professor at Yale, who was presenting his first oral

argument before the Supreme Court, indeed, his first argument before any

court. Bickel contended that the Times did not assert an absolute right of

publication. Rather, the administration had not met the “heavy burden” of

proving that such harm would occur upon publication. Bickel agreed that

prior restraint was the proper way to prevent the death of soldiers, but not

justification for avoiding “the impairment of diplomatic relations.”

The Justices were divided on the legal rationales for the Court’s ruling

that newspapers enjoyed a First Amendment right to publish the Pentagon

Papers. The common thread that linked the 6-3 majority, as the Court’s per

curiam opinion stated, was the government’s failure to meet “the heavy

burden” necessary to justify prior restraint. The opinion, prepared by

Justice William Brennan at the request of Chief Justice Warren Burger,

emphasized the Court’s defense of the Free Press Clause and declared

that any “system of prior restraints of expression comes to this Court

bearing a heavy presumption against its constitutional validity.” The six

Justices agreed that the administration had not met the burden of proving

that publication would result in “direct, immediate and irreparable damage”

to the United States.

The Court’s resort to the use of a per curiam opinion in the case likely

reflected the fact that its Term was at an end, leaving too little time for the

Justices to cobble together a majority opinion before the onset of the

summer recess. As it happened, each Justice wrote an opinion, but no

opinion was joined by more than three Justices.

The most memorable of the opinions was that written by Justice Hugo

Black who, throughout his 34- year career on the Court, had been a

champion of First Amendment rights. Black’s opinion in the Pentagon

Papers Case was his last. Declining health forced him to retire on

September 17—Constitution Day. He suffered a stroke and died on

September 25th.

Justice Black’s beautifully written, majestic opinion was celebrated by

newspapers across the nation, as an emphatic endorsement of the

essential purposes of the Free Press Clause. As it happened, it was the

first Supreme Court opinion that I ever read as a teenager, and it spawned

a life-long love affair with the Constitution and a fascination with

constitutional law.

Justice Black praised publication of the Pentagon Papers as performing

precisely what the founders hoped a free press would do in fulfilling its

service to “the people’s right to know.” The courtly Alabama Justice, in

penning his swan song, wrote: “And paramount among the responsibilities

of a free press is the duty to prevent any part of the government from

deceiving the people and sending them off to distant lands to die of foreign

fevers and foreign shot and shell.”

Justice Black’s words carry special weight these days as the world

weeps while viewing the carnage in Ukraine, a horrific war perpetrated by a

Russian tyrant who despises freedom of the press and the values of

democracy. Throughout his reign of terror, Vladmir Putin has executed the

very journalists who have dared to report the truth of his atrocities. What

Russians desperately need at this critical hour is what some Americans

take for granted: constitutional protection for “the people’s right to know.”

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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