The Pentagon Papers and the Fifteen Days

On this day in 1971, June 30, the Supreme Court of the United States handed down a decision that had been argued only four days earlier, in a case that had existed for barely two weeks. The speed was not normal. Nothing about those weeks was normal. Between June 13 and June 30, 1971, the country compressed a fundamental argument about the freedom of the press into fifteen days, and this essay is the story of those days.

An earlier essay this month examined the legal idea at the center of the case, prior restraint, the government's power to stop something from being published before it appears. This essay does something different. It tells the story as it happened, day by day, because the pace of it is part of what it means.

First, the documents, briefly.

In 1967, Secretary of Defense Robert McNamara, privately losing confidence in the Vietnam War, commissioned a secret internal study of how the United States had become involved in it. The result was enormous: a 47-volume, roughly 7,000-page history, classified top secret, of which only fifteen copies were made. It traced decades of American decision-making in Vietnam, and what it documented was damaging. It showed that a series of administrations, across both parties, had misled the American public about the war.

One of the people who had worked on the study was Daniel Ellsberg. He had come to believe the public had a right to see what he had seen. In early 1971 he secretly copied the documents and brought them to a New York Times reporter, Neil Sheehan. The Times spent months reviewing the material in secret. Then it began to publish.

*Sunday, June 13.* The New York Times runs the first installment of its series on the Pentagon Papers. The country begins to read a secret history of its own war.

*Monday, June 14.* The second installment appears. The Nixon administration reacts. The Attorney General, John Mitchell, contacts the Times and demands it stop publishing, citing damage to national security. The Times, citing the public's right to know, refuses.

*Tuesday, June 15.* The third installment appears, and the government goes to court. In federal district court in Manhattan, the Justice Department asks a judge to order the Times to halt. Judge Murray Gurfein issues a temporary restraining order. The Times, obeying the court, stops the series.

Pause on what just happened. For the first time in the history of the United States, a federal court had ordered a newspaper not to publish. The thing the framers of the First Amendment had most clearly meant to forbid, the government silencing the press in advance, had just occurred. The most respected newspaper in the country had been stopped.

*Friday, June 18.* And here the story shows why prior restraint is so hard to make work. Ellsberg had given a copy of the documents to the Washington Post. With the Times silenced, the Post picks up the series and begins publishing. The government races to court again, and soon the Post is restrained too. But the documents are now loose. Other papers, the Boston Globe, the St. Louis Post-Dispatch, others, begin to publish in turn. The government is trying to put out a fire that keeps reigniting somewhere new.

*The middle days.* The cases move through the courts at a speed almost without precedent. District judges in New York and Washington hold hearings, and the government is asked to prove its central claim, that publication would cause grave, immediate harm to the nation. Both district courts decline to grant lasting injunctions. The appeals courts split, one leaning toward the government, one toward the press. With the lower courts in disagreement and newspapers restrained, the question goes to the Supreme Court.

*Saturday, June 26.* The Supreme Court does something unusual to take the case at all. The justices had nearly finished their term and were heading into summer recess. They extend the term and hold a special argument session. The government and the newspapers argue the case.

*Wednesday, June 30.* Four days later, the Court rules. By a vote of 6 to 3, it holds that the government cannot stop publication. The restraining orders are dissolved. The Times and the Post are free to print.

From the first installment to the final ruling: seventeen days on the calendar, and the legal fight itself compressed into about fifteen. A foundational question of American liberty, raised and answered in the time it takes to feel like a single long held breath.

The decision was, in form, almost terse. The Court issued a brief unsigned opinion for the majority, and then each of the nine justices wrote separately, six explaining why they sided with the press, three explaining why they did not.

The core holding was the one the prior-restraint essay described. Any system of prior restraint on the press, the Court said, arrives bearing a heavy presumption against its constitutional validity. The government carries a heavy burden to justify one. And here, the government had not carried it. It had not shown that publishing the Pentagon Papers would cause the kind of direct, immediate, grave harm that might, in some extreme case, justify silencing the press in advance.

The justices did not all agree on how absolute the rule should be. Some thought prior restraint of the press essentially never permissible. Others rested on the narrower point that the government had simply failed to prove its case here. But the result was decisive, and it stood on a foundation laid forty years earlier. The Court was building directly on Near v. Minnesota, the 1931 case, the subject of this series' very first essay this month, that had first established the strong constitutional rule against prior restraint. The principle articulated in 1931 was the principle that freed the newspapers in 1971.

The Pentagon Papers case is remembered, rightly, as a landmark of press freedom. But sit for a moment with the fifteen days themselves, because the speed carries the lesson.

A foundational liberty does not always get tested slowly, in the calm. Sometimes the test arrives all at once, as a fast-moving crisis, and the institutions of the republic have to answer in real time, under pressure, without the comfort of long deliberation. In June 1971 the press had to decide, immediately, whether to defy the government. Judges had to rule within days. The Supreme Court had to interrupt its own calendar to sit. Everyone involved was acting fast, on consequential ground, with the country watching.

And the system held. Not perfectly, the Times was in fact silenced for fifteen days, and that silencing was itself a serious thing. But the deeper structure held. A free press kept publishing even under threat. Courts, including a Supreme Court willing to drop everything, gave the question a real hearing. And the principle came through: in the United States, the government may not, except in the most extreme and proven circumstances, stop the press from telling the public what the public has a right to know.

That is worth carrying, on the last day of June. The freedoms in the Constitution are not only tested in slow, scholarly arguments. Sometimes they are tested in fifteen days, in a rush, in a crisis. What protects them in those moments is not the leisure to think it over. It is that the principle was already settled, already understood, already woven deep enough into the country's institutions that people could act on it fast and get it right. The work of a republic, in calm times, is to settle those principles so firmly that they hold when the fifteen days arrive.