What happens when the rights protected under the First Amendment conflict with national security efforts? This question is at the core of one of the most important First Amendment conflicts in the United States, the Pentagon Papers.
The Pentagon Papers contained 7,000 pages of classified information from a secret study ordered by the Department of Defense, covering the US involvement in Vietnam since the 1947. Daniel Ellsberg, a military analyst who worked at the RAND Corporation and in the Department of Defense had become opposed to the war and believed the public needed to know the truth.
He spent months photocopying the report and in March 1971 he gave the copy to The New York Times and then several major publications across the country. The papers revealed the misconduct of the executive branch, including that officials had lied to Congress and the public about the U.S. involvement in the war.
The government went after the Times, and a district court in New York issued an injunction against the newspaper. By that time Ellsberg had given a copy to the Washington Post, and there was no going back. The Supreme Court handled settled the case in a matter of days. The Court ruled 6-3 that the government had failed to prove immediate threat to national security and that injunction of the publication was an unconstitutional prior restraint.
In his concurring opinion, Justice Black points out the purpose of the First Amendment, stating, “The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches…The Press was to serve the governed, not the governors.” (Epps, Pg.142)
In his dissent, Chief Justice Burger discusses the conflict between the First Amendment and national security. He states, “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.” (Epps, Pg.149) Justice Blackmun also discusses conflicting goals, stating, “Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety.” (Epps, Pg. 150)
This case had important implications moving forward for the First Amendment in relation to the publication of classified information regarding national security. I also had a monumental impact on how the government relates to the public today as it was one of the first times it was made clear that the public was being lied to about policies. Through the publication of the report, Ellsberg and the newspapers empowered the public by informing and allowing their opinions on the war to be heard.
With today’s technology, it is even easier to leak information. However, there is still no federal shield law protecting journalists from being compelled to reveal confidential sources in court. In addition, President Trump’s rhetoric around journalists has resulted in growing public disdain for news outlets. It is important that we protect freedom of the press, allowing journalists to publish important information regarding government misconduct.
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