Daniel Ellsberg, a high-level Pentagon analyst, became disillusioned with the war in Vietnam and released a massive report known as the Pentagon Papers (sometimes referred to as “The McNamara Study”) to the New York Times. The seven-thousand page classified document told the back story of America’s entry into the Vietnam conflict and revealed government deception. President Nixon claimed making these papers public hampered his ability to manage the war and he petitioned a US district court to stop the Times from printing. The lower court obliged, issued the injunction. The Times appealed, and the Supreme Court ruled in its favor. This decision was “a Declaration of Independence,” claimed Times reporter Hendrick Smith, “And it really changed the relationship between the government and the media ever since.” Read the two passages, on in agreement and one in dissent, and answer the questions that follow.
Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country . . . In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment.Concurring Opinion by Mr. Justice Hugo Black
In these cases, 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. Only those who view the First Amendment as an absolute in all circumstances — a view I respect, but reject — can find such cases as these to be simple or easy . . . Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout “fire” in a crowded theater if there was no fire.Dissenting Opinion by Mr. Justice Warren Burger
Questions:
1. How would you characterize Justice Black’s description of the Executive branch in this situation?
2. What does Justice Burger mean about the absolute nature of free speech? Elaborate.
Photo/Image: Dan Ellsberg speaking at Occupy Wall Street, 2011
