Landmark cases produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 Historic Supreme Court decisions. Mr chief justice. Good evening, welcome to see spencers landmark cases. Tonights case is the New York TimesCompany Versus the United States, in this 1971 case, the Supreme Court ruled six to three against the knicks this Nixon Administration in a big win for journalism. The decision upheld the New York Times in the Washington Post, which you just saw depicted in this recent movie, the right to project published classified information on the history of the vietnam war over significant objections from the pentagon and the white house. We have to terrific guests at the table tonight, to help us understand how this case unfolded. And what it means for us today in our society. Let me introduce you to flloyd abrams, the bestknown First Amendment lawyer counsel in the New York Times case and he is the attorney in new york city where he focuses on First Amendment and media law and is a guest professor at Columbia University law. We are pleased to welcome back ted olson, mr. Olson has argued 63 cases in both private practice and for the government before the Supreme Court, including during his term a solicitor general from 2001 through 2004. One of his key cases representing president bush and bush v. Gore, he is also a partner now at dickson donahue in washington and we are pleased to have you back. You are with us on the first term and we are glad to have you back for the second season. Im delighted that you would ask. We want to start with understanding how broad or narrow this decision was. How people understand the decision before we go into all of the details. What the court actually find . The court found that the times and the post could not be restrained and banned from publishing a prior strength, as it is known. They said, with the very heavy burden, that the government has, to overcome, they have to show real irreparable harm to the country, and that the government had failed to do that. That was the ruling of the court. In addition to that ruling, there were nine separate opinions by members of the court. While they all agreed that prior restraints are difficult, very difficult, to obtain, the vote in the case with six to three, as we just heard, in favor of the times and the justices ranged considerably and what they said about that from a very modest victory to a very broad one. At the end of the day, the ruling was that the government, even during the war, even when there were american prisoners of war held by the enemy during that war, has not shown enough that publication of this historical study of how we became involved in vietnam, would do terrible harm. Tell us, if it is a narrow restraint decision of prior restraint, what about this case has made it a landmark case . This was a very, very big decision. This was the Nixon Administration attempting to stop the Washington Post and the New York Times from publishing excerpts of the pentagon papers. This was a big huge study of the origins and the conduct of the vietnam war. The government was saying, it is very important and dangerous to our National Security if this material is published and made available to the public. And the Supreme Court of the United States, in this decision six to three decision, said no, we will not stop the publication. It may have violated the law, that is a possibility, and you might want to prosecute people criminally for violating the law, if you can prove that, but we will not stop as floyd said, in advance, a publication of material that is in the public interest. We wont tell the press, under the First Amendment, that you cant speak. That you cant publish something. To underscore, they cannot be stopped from publication but there is no guarantee that there wouldnt be sanctions of the publication . That is correct, indeed, the opinions of some of the justice who voted for the times Justice White and steward, in particular, indicated that a criminal prosecution could be brought, and might have succeeded. Bear in mind, the case came up very quickly, and the members of the court, as some of them, complaint. They were not deeply enmeshed in the facts of the case. They really left it to the government to the persuade them, which the government failed to do, that publication would do great harm. But when you read those opinions, a majority of them voted that it would to do harm. I think it is worth saying, it did not, but a majority of the members of the court thought publication would do harm, and nonetheless, that the times and the post could publish. This series is about our constitution, at the outset, we always look at the constitution provision that is under examination. This is the First Amendment case, and the First Amendment reads as such, congress no no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people possibly to assemble, and to petition the government for a redress of grievances. So a question for both of you, before this 1971 case, there had been some earlier cases. We have 1931, in minnesota, the 64 case in the New York Times versus all of, and what was the law about how far the press could go in publishing prior to this case . Id say the most important case was that 1931 case, in particular, a line in it, which in the course of saying, that prior restraints were terribly difficult, almost impossible, to be issued by courts. They offered an exception, and the exception was that the timing of ships sailing in time of war. During the case, both sides spent a lot of time arguing about whether this was like a ship sailing in war, whether publication of this material and how we got into the war in vietnam, was akin to the sailing dates of ships during a war. That 1931 case helped enormously and was by far, the closest case. And it wasnt a close, but the closest case there was. The espionage act of 1917 was the law that the government was looking to in this case. And im going to ask what we should know about that law as we think about the questions. The espionage act is a very old statute. It is very unclear as to what it prohibits and under what circumstances it would impose punishment on someone who leaked material, or who communicated interests and information that might do damage to the National Security. There was an argument in this case about how far it went. It did not authorize the government to stop publication of a document. It didnt post criminal penalties or fines on someone who disclosed National Security information. The court specifically pointed out, in this case, that there was no statute that gave the government the power to ask the courts to stop the publication of materials. This business about prior restraints is very important because if you stop someone from speaking or stop someone from publishing, it wont happen. Theres a lot of things that can be done you can take some risks by speaking about something. That 1931 case was an attempt to stop the publication of defamatory material. It was an expose by the newspaper, and the statute said, we can stop the publication of defamatory or scurrilous material, and the Supreme Court said no, you cant do that. But the principal is, if you stop someone from speaking, it wont be heard, and that is a very, very difficult thing. Under the First Amendment, which says Congress Shall make no law abridging the freedom of the press. There was a time when the only thing that the Supreme Court said was protected by the First Amendment was against prior restraints. All of our homes in 1905 what an opinion saying just that, that prior restraints are what the First Amendment is all about and only what the First Amendment is about. Now weve come a long way since then, it was we have come a long way since then, but the point is really that with everyone historically has agreed upon, most, is that prior restraints and limitations, and advances on speech are the most dangerous and most limiting. Therefore, the most protected against activity of the government. We will move from the constitutional and Legal Framework of the case into the particulars. Before we do that, let me tell you how you can be involved and we hope you will. If you live in the eastern century central time zones call us, two zero two seven four eight eight nine zero one if you live in the mountains. You can send us a tweet, we love mixing tweets into throughout the program. If you treatise at cspan use the hashtag landmark cases. So we can see it and makes a comment. In 1971, the vietnam war was beginning to falter for the red states and there were 156,800 soldiers down in vietnam in vietnam down from a high 334,500 just one year earlier. There were 2357 u. S. Deaths in 1971, down from 6081 in 1970. And back here on the home front, the worst popularity was certainly diminishing. We want to move on to the cast of characters in this case, starting with the pentagon papers themselves. What were the pentagon papers . Secretary robert magnum era, defenses, had the idea as the war got worse and worse and there were fewer and fewer ways out, it seemed to commission a study, when historical study, how do we become involved in the war . What happened, who did what, why were we there . One might think he would do that study before you enter a war but we have not done that and so secretary mcnamara commissioned that study and got together with the Defense Department scholars and others, to use highly classified Defense Department documents to prepare a study of how we became involved, going back to world war ii and thereafter, all the way to 1968 when the pentagon papers ended. Why did the government want to give the pentagon paper secret . It was interesting, because this was the Nixon Administration that was in charge, at the time that this litigation was brought. Most of the material in the pentagon papers was embarrassing and harmful to previous administrations, because as floyd said, this study went back to the Truman Administration and back to the end of the second world war. It was particularly embarrassing for president johnson, and maybe to a certain degree, to president kennedy. So the Nixon Administration wasnt so badly embarrassed by the contents of the material that was indicated that the government had lied to the American People and and done various Different Things that were quite damaging. But the Nixon Administration became convinced in part because of secretary kissinger, who made particularly strong arguments that if you do not stop this, if you dont stop these leaks, where is it going to stop . And you have got to be able to stop this kind of broad scale leaking of classified and dangerous information, or there is no stopping point. And we will have no credibility in the rest of the world about our ability to keep secrets if we cant keep this secret. This was 7000 pages of material. You mentioned president nixon nixon and a character in our story tonight and what should people know about his relationship with the press, as we get into this case . Floyd knows much more about this than i do, but i think anybody who lived during that period or anyone who studied it knows that president nixon was not a fan of the press. And you can say vice versa. He didnt like the press because they had been critical of him. They portrayed him in ways in which he did not like. And he was very concerned about the vulnerability, his vulnerability to the press. This was a hostile, difficult, tortured relationship that he already had with the press. Something like this comes along and he sees that they are publishing secret information and that it might be Something Else next, and he is going to react and to do whatever he can to stop it. Im going to ask you to give people a sense of what the New York Times and the Washington Post were like in 1971. Very different media landscape than we are experiencing today. There were newspapers, only newspapers, and three television networks, were the heart of information givers in the country. There were local newspapers around the country, and very often, one newspaper in a town or one newspaper in a city. Sometimes just a few newspapers in a state. Newspapers were the primary place where most people got their news. As i indicated earlier, three television networks, and, cbs, and abc. And from those sources, the great bulk of the information came to the public. Of course, the world is very different now. This is our first case in this series. What should people know about the chief justice . People should know that in the first place, this court that decided this case, there were five of the justices who were appointed by republicans. Chief Justice Burger had taken over the Supreme Court, and had been appointed to the Supreme Court by president nixon and was a very different person in his than his predecessor, earl warren. The Earl Warren Court was quite famous for protecting Civil Liberties and opening new areas of individual rights and so forth. The burger court, chief Justice Burger, who had been from minnesota and who had served on the court of appeals for the district of columbia circuit, was very interested in the orderly processing of judicial decisions, the structure of the court, how decisions are made and how state courts work, that sort of thing. He was a much more businesslike jurist than his predecessor, oral warren. This would not be a pentagon papers case without Daniel Ellsberg, who was he . Daniel ellsberg had been a marine in the war in vietnam, he was an intellectual, he had favored the war in its early days, and had come to believe that it was a war crime. He had come to believe that we were doing things in vietnam which violated International Law and principles of morality. He was one of the authors of the pentagon papers. He was a scholar, as well as Everything Else ive said, and he was one of the authors commissioned to write chapters of the pentagon papers. He came to the view that if only the public could see the degree to which it had been lied to through the years, which perpetuated american presence in vietnam, that they would demand that the war and. He felt, notwithstanding our victory, and notwithstanding Everything Else that happened, and he feels today, that he failed. His motive for releasing this information, for risking jail to himself for a very long time, was to end the war. While the publication was very newsworthy and affected public opinion, it did not do that. We have said that this is a very accelerated case and some of the cases in this series have taken years to get to the Supreme Court, not so in this instance. Let me walk you through this very quick timeline. That this case was under. Just a bit prior to the june 13th 1971 publication of the first story but the newspaper gotten the material from danya ellsberg, by june 15th, the times received its cease and desist order, the government seeks a restraining order. Then june 18th, the Washington Post publishes its first story on the pentagon papers. By june 19th, the Second Circuit court of appeals rejected the governments request for injunction. On june 22nd, the Second Circuit court of appeals heres cases and grants the injunction. Im not sure that was correct, there were two different courts in this. In june 24 the Supreme Court except the case, oral arguments were heard on june 26th, heres another interesting thing we will talk about later, on june 29th the United States senator from alaska, mike gravel, entered the papers into the Senate Records for his subcommittee and the Court Announced the decision by june 30th. Very rapid discussion in a legal system of this case, we will learn about the implications of that as we go forward. First bit of video we are going to introduce you to Hendrix Smith he was a longtime New York Times supporter and happen to be one of the New York Times supporters that was writing this story, he t