Did the Nixon administrations efforts to prevent the publication of what it termed classified information violate the First Amendment?

Times Insider shares historic insights from The New York Times. In this piece, David Dunlap, a Metro reporter, reflects on the 45th anniversary of the historic victory for freedom of the press.

“We agree.”

Not among the most stirring judicial defenses of the First Amendment you’ve ever heard. But it was enough to get the job done.

On June 30, 1971, the Supreme Court overturned the Nixon administration’s effort to restrain The New York Times and The Washington Post from publishing a top-secret history of the Vietnam War called the Pentagon Papers.

Its unsigned opinion, in which six justices concurred, simply quoted from two other decisions (“Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity” … the government “thus carries a heavy burden of showing justification for the imposition of such a restraint”) before reaching this understated conclusion:

The District Court for the Southern District of New York, in The New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in The Washington Post case, held that the government had not met that burden. We agree.

Joyful editors in New York ordered the immediate resumption of publication, which had been on pause since June 15, under court order. The Times had managed to print three installments of the series, which it called the “Vietnam Archive,” before the government effectively shut it down, leaving much of the exposé unpublished.

Neil Sheehan at his desk in the newsroom.Credit...Barton Silverman/The New York Times

What distinguished the Pentagon Papers was that The Times was not only providing interpretive articles, but also presenting the documents themselves, which had been leaked by Daniel Ellsberg, a military analyst who had worked on the history. These included cablegrams, memorandums, drafts of policy papers, instructions, transcripts and the like.

“The documents are the written words of the men who set the armies in motion and launched the warplanes,” Neil Sheehan, the chief reporter of the series, said. “The written words are immutable, engraved now in the history of the nation for all to examine.”

But publishing classified documents about the prosecution of a war, even though they were at least three years old at the time, was bound to rouse the government.

“The Joint Chiefs are likely to believe that, for the integrity of the security of their procedures, they must act,” Harding F. Bancroft, the executive vice president of The Times, cautioned Arthur Ochs Sulzberger, the publisher, in a memo on June 10.

Later that day, Mr. Sulzberger — to his everlasting credit, at least in journalists’ hearts — told the managing editor, A. M. Rosenthal, to go ahead with the full series, documents and all. He had one little complaint. “I feel that the stories I saw were still overwritten and unnecessarily complicated,” Mr. Sulzberger said. “I strongly recommend a very sharp blue pencil.”

Arthur Ochs Sulzberger met with reporters at Kennedy International Airport on June 16, 1971, to answer questions about the Pentagon Papers. He had just returned from a brief trip to London.Credit...Barton Silverman/The New York Times

(The newsroom apparently failed to appease him. Mr. Sulzberger later complained, good-naturedly, “Until I read the Pentagon Papers, I did not know that it was possible to read and sleep at the same time.”)

The White House pounced on Monday, June 14, at 8:34 p.m., when a telex arrived at The Times, addressed to Mr. Sulzberger, over the signature of Mr. Nixon’s attorney general, John N. Mitchell:

On June 14, 1971, John N. Mitchell, the attorney general of the United States, ordered The Times to stop publishing the Pentagon Papers. The Times declined.Credit...The New York Times Corporate Archive

“I have been advised by the secretary of defense that the material published in The New York Times on June 13, 14, 1971, captioned 'Key Texts from Pentagon’s Vietnam Study,’ contains information relating to the national defense of the United States and bears a top secret classification,” he began — without even a hope-this-finds-you-well.

“As such, publication of this information is directly prohibited by the provisions of the Espionage Law, Title 18, United States Code, Section 793.

“Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States.

“Accordingly, I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense.”

Instead, The Times advised the Justice Department that it had no plans to comply.

“The Times must respectfully decline the request of the attorney general, believing that it is in the interest of the people of this country to be informed of the material contained in this series of articles,” the newspaper said in a statement. “We have also been informed of the attorney general’s intention to seek an injunction against further publication. We believe that it is properly a matter for the courts to decide. The Times will oppose any request for an injunction for the same reason that led us to publish the articles in the first place. We will of course abide by the final decision of the court.”

The injunction came the next day in a complaint that named as defendants the seven reporters and editors credited with the series and the 15 executives listed on the newspaper’s masthead. John Crewdson and Barbara Dubivsky of the Washington bureau quickly came up with a retort, printing hundreds of buttons that said, “Free The Times XXII” and “Free The Times 22.”

To the astonishment of everyone involved, the case made its way to the Supreme Court in less than two weeks. Oral arguments by The Times’s legal team, headed by Alexander M. Bickel, were heard on Saturday, June 26.

The subsequent 6-to-3 decision was something of a muddle. In their haste to decide a fast-moving case, the justices barely had time to write their own concurring or dissenting opinions, much less build the consensus needed for a unified voice.

After the Supreme Court handed down its decision on June 30, 1971, the composing room prepared to resume publication of the Pentagon Papers series.Credit...Tyrone Dukes/The New York Times

That’s not to say that the White House hasn’t tried to use prior restraint since then.

Much newsroom drama preceded the publication on Dec. 16, 2005, of an article by James Risen and Eric Lichtblau that exposed the Bush administration’s use of warrantless wiretaps. At a meeting in the White House, President George W. Bush himself had tried to persuade The Times’s publisher, Arthur Sulzberger Jr., and its executive editor, Bill Keller, to kill the story.

He had no more luck doing so than Mr. Mitchell had in 1971.

But a chilling prospect emerged after the White House meeting. “The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story,” Mr. Lichtblau wrote for Slate, in an adaptation of his book, “Bush’s Law: The Remaking of American Justice.”

“The tidbit was a bombshell,” Mr. Lichtblau wrote. “Few episodes in the history of The Times — or, for that matter, in all of journalism — had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again.”

Mr. Risen described to Times Insider what happened next.

“Eric was told about the plans for a court injunction, told me and the editors, and we ran the story that same night. Keller decided to post the story online early, at 7 p.m. that night — virtually unheard of in 2005 — to get the story out before the White House could seek an injunction,” Mr. Risen wrote. “It was clear to me that The Times reacted so swiftly to run the story immediately because they saw this as the same situation as the Pentagon Papers.”

That may have spelled the end to prior restraint even more effectively than the 1971 court decision.

“The administration might be able to stop the presses with an injunction,” Mr. Lichtblau wrote, “but they couldn’t stop the internet.”