The Press Wins and Presses Roll

Congress shall make no law . . . abridging the freedom of speech, or of the press.

First Amendment, U.S. Constitution

AFTER all of the frantic legal maneuvering, the hasty argumentation, the acceleration of suspense in the certainty that a historic ruling was imminent, the U.S. Supreme Court revealed its Pentagon papers decision in a decorous session that lasted only four minutes. The decision consisted of just three dry paragraphs, and was summed up in two words: "We agree." By a margin of 6 to 3, the Justices thus confirmed the judgment of several lower courts. The U.S. Government had failed to prove that it had the right to prevent the New York Times and Washington Post from publishing the secret history of the Viet Nam War because the nation's security was at stake. Strengthening the freedom embraced in the First Amendment, the court ruled that the presses could roll.

With the lid off, newspapers that the Government had temporarily stifled quickly resumed their revelations. Other publications--and even a Senator --added to the unprecedented avalanche of classified documents and analysis (see following story). Yet the court's public brevity and restraint only masked intense personal differences among the Justices over the grave issues. These divisions emerged in the rare determination of all nine Justices to write their own, sometimes emotional, opinions.

Criminal Charges. In general, a dominant theme of the opinions was that the Government was asking the courts to do something Congress had historically refused to do: give the Government the advance power to prevent newspapers from publishing information it wants kept secret. The minority protested the haste with which the courts had been required to act and wanted to return the case for more deliberate trials in lower courts. This would give the Government a better chance to prove, as it claims, that some of the disclosures would do "great and irreparable harm" to national security. Justices from both the majority and minority factions reminded the Government that Congress had enacted laws against disclosure of secret documents that might be applied after publication. They implied that if the Government's assessment of the dangers in the Pentagon papers were sound, it should have--and still can--file criminal charges against the offending newspaper reporters and editors.

Frenetic Haste. The opinions within that framework varied widely (see box). Three of the Justices--Hugo L. Black, William O. Douglas and Thurgood Marshall--contended that there can be no exceptions to the First Amendment's press freedom; no matter what the potential impact on the nation, prior restraints on news cannot be imposed by Government. Another trio composed of Justices Potter Stewart, William J. Brennan Jr. and Byron R. White took a middle position, contending that the First Amendment is not absolute and a potential danger to national security may be so grave as to justify censorship. However, they agreed that this had not been demonstrated in the Times and Post cases.

The three dissenting jurists were John M. Harlan and the Nixon-appointed "Minnesota Twins": Chief Justice Warren E. Burger and Harry A. Blackmun. They argued in effect that Government not only had the right to try to stop publication of clearly damaging information but that Government was in the best position to determine what actually would prove harmful. Blackmun argued that since the Pentagon study dealt with events at least three years old and the Times had labored three months before beginning its series, there was no need for the courts to act so swiftly. What Harlan called the "frenzied train of events" and Burger termed "frenetic haste" had hindered the Government in making its factual case, they said. In a stern lecture, Blackmun urged the newspapers to "be fully aware of their ultimate responsibility to the United States of America." In an odd sentence that hinted unpleasantly of scapegoat hunting, Blackmun also charged that if the revelations should prolong the war and delay the release of U.S. prisoners of war, "then the nation's people will know where the responsibility for these sad consequences rests."

Joyous Day. With so many conflicting opinions, the impact of the court's decision was diffused. Certainly the Justice Department was slapped down in its efforts to ask the courts to enjoin the newspapers, and will not likely take that route again. The Administration also lost its claim that no other branch of Government has the right to review its decisions on what information can be classified for security purposes. But it was given broad hints that it could try to put those who publish damaging secrets in jail --and Attorney General John Mitchell promptly announced that the Justice Department "will prosecute all those who have violated federal criminal laws." That possibility did not seem to worry many journalists last week. "This is a joyous day for the press --and for American society," happily declared Times Managing Editor A.M. Rosenthal. Indeed, in few other societies could the Government's determination to protect the secrecy of its internal deliberations be so openly --and successfully--challenged.

Certainly in more imminent danger of imprisonment was Daniel Ellsberg, who surrendered to U.S. Attorneys in Boston, as he had promised, and who readily admitted that he had given the Pentagon papers "to the people through the American press--and I am prepared for all the consequences." He could be sentenced to up to ten years, but Ellsberg told newsmen that he considered this "a very cheap price to pay" if it would help "end the war."

Ellsberg was indicted last week by a grand jury in Los Angeles for unauthorized possession of the documents and for "unlawfully converting them to his own use." It was unclear whether the Government would have to prove that the papers involved secrets vital to national security. But Ellsberg's lawyers were prepared to argue that the papers were historical and political, thus did not merit classification; that he had hoped to enhance, not injure the public interest by disclosing them.

After successfully evading FBI agents, Ellsberg walked into a U.S. courthouse with his wife Patricia at his side. She cheerfully told reporters: "I'm proud of what my husband did." He was represented by Attorney Leonard Boudin, who is one of the lawyers defending Father Philip Berrigan and others against charges of conspiring to kidnap Presidential Adviser Henry Kissinger. Boudin argued against a $100,000 bail that the Government had asked U.S. Magistrate Peter Princi to set. Debating the seriousness of Ellsberg's offense, another Ellsberg attorney contended that "we are not dealing with matters of troop movements or codes--this is history which is at least three years old." But Princi, inadvertently making Ellsberg's precise point, replied: "These secrets belong to the people of the United States, not to one man." Ellsberg smiled in agreement. Princi finally released Ellsberg on $50,000 personal bond, under which he did not have to put up any cash. He will face another Boston hearing on July 15 to determine whether he can be ordered to appear in Los Angeles, where he presumably will be tried.

Lavender Hill Mob. Temporarily free again, Ellsberg settled into celebrity status. He used the services of David Hawk, an experienced press aide who was a coordinator of the 1969 Viet Nam Moratorium, to conduct an elaborate press conference. Flanked by a U.S. flag and facing 21 microphones, Ellsberg refused to divulge how he had distributed the secret papers. He conceded only that he had "satisfied certain personal tastes" in deciding which newspapers to favor. He said he had withheld some documents that might hamper international negotiations by revealing private channels the governments might still be using. He declined to evaluate the papers, urging that people read them and "form their own opinion of how well they had been served" by their officials.

Earlier, away from the pack of reporters that greeted him upon his arraignment, Ellsberg softly kissed his wife in a taxi as they rode toward their second-floor apartment in a Cambridge house. They opened windows to air out the rooms they had deserted shortly before the Times first started its series. "I was surprised the New York Times printed them," Ellsberg confided. "I wasn't sure they would have the guts. I gather people think we were hidden by a very professional underground, something like the Berrigans used. Well, I can tell you, we had nothing but a third-rate Lavender Hill mob. I'll tell you one of the things that really bothers me is this image that everyone has that I'm a tortured man, plagued by his conscience. You know, 'It's O.K., everyone, this guy's not like us.' That's such a simple picture. God, how I'd like to get beyond that."

This file is automatically generated by a robot program, so reader's discretion is required.