Last week marked the 45th anniversary of New York Times Company v. United States, also known as the “Pentagon Papers” case. Writing for Just Security, David McCraw, assistant general counsel for The New York Times, reflected on the decision.
The case revolved around an attempt by the Nixon administration to stop the press from releasing information, revealed by defense analyst Daniel Ellsberg, which detailed previous administrations’ handling of the Vietnam War.
After the press broke the first portion of the revealing report, Nixon officials sent a gag order to the offending news organizations, ordering them cease publishing the leak. This form of censorship, called “prior restraint,” is generally unconstitutional, and Nixon’s gag orders were rescinded by the Supreme Court.
McCraw notes the nuanced reasoning the Supreme Court justices applied as they tried to find a balance between a defense of press freedom and the government’s interest in keeping some information secret.
Although the court found in favor of The Times, according to McCraw, the written opinion did not create a strong precedent for journalistic liberty in regard to leak cases:
“Presented with a pristine opportunity to once again speak passionately about press freedom, the justices repeatedly prefer to change the subject.”
McCraw goes on to argue that in today’s shifting journalistic landscape, a free and unrestrained press remains more important than ever, as the ability of government to hide its actions from public scrutiny has remained intact during the 45 years since the Pentagon Papers case.