Supreme Court rules on

secrecy v. public’s

right to know

By David Adler

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 an 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 War.  

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 States.”

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 25.

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.”  

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.