The Pentagon Papers

Federal Trials and Great Debates 

in United States History

Case Summary:

• Between 1967 and 1969, a Pentagon task force created a history of U.S. involvement in Vietnam.

• Although the study was classified top secret, a former Defense Department employee named 

Daniel Ellsberg copied the documents and turned them over to The New York Times in 1971.

• The Times began to publish excerpts of and articles about the documents, which showed that the 

U.S. government had misled the American public about the Vietnam War. Soon after, The 

Washington Post followed suit.

• The U.S. Department of Justice asked the federal courts to impose a prior restraint on further 

publication of the documents by the Times and the Post.

• The case went to the Supreme Court, which voted 6-3 to allow publication to continue.

History of the Case:

In June 1971, The New York Times shocked Americans by publishing a series of articles based 

on a secret study the U.S. Department of Defense had produced regarding American involvement in 

Vietnam between 1945 and 1967. The “Pentagon Papers,” as the leaked study came to be called, 

showed that every presidential administration from Harry Truman’s to Lyndon Johnson’s had misled the 

American public about what the United States was doing in Vietnam and the likelihood of military success 

there. Most significantly, the papers called into doubt the government’s version of events regarding the 

alleged 1964 North Vietnamese attack on U.S. Navy ships in the Gulf of Tonkin. The congressional 

resolution resulting from the incident had given President Johnson greatly expanded power to conduct

military operations in Vietnam and eventually led to full-fledged American participation in the war.

When the Pentagon Papers came to light, American opposition to the Vietnam War, which had 

been widespread since 1967, had recently reached its apex. Protestors argued that the war was both 

immoral and unwinnable. They asserted that the United States did not have the right to dictate the fate of 

a foreign country, that the American government had supported a repressive and corrupt regime in South 

Vietnam, and that mounting numbers of Americans and Vietnamese were dying for no valid reason. In 

addition to the unpopular war, growing concern about excessive secrecy helped to further diminish faith in 

government. The system of classifying government records that had emerged after World War II grew in 

scope during the Cold War as part of an effort to conceal American military technology from Soviet spies. 

Many people believed that the government abused its classification power. Journalists worried that the 

suppression of vital information was endangering the freedom of the press that was necessary for a wellfunctioning democracy.

The disclosure of the Pentagon Papers exacerbated the public’s mistrust of the government, and 

of the executive branch in particular. The papers seemed to confirm the most pessimistic suspicions 

about the missteps that had led to a massive military commitment. Articles on the study contributed to the 

perception that the government had not been honest with the American people, particularly with respect 

to policymakers’ doubts that the Vietnam War was winnable.

The White House was caught by surprise by the publication of the Pentagon Papers, as very few 

people in the government had known of the study’s existence. At first, President Richard Nixon, while 

considering the leak to be “treasonable,” was not upset about the revelations themselves, which cast a 

negative light on his Democratic predecessors. After consulting his advisors, however, Nixon decided that 

in addition to finding and prosecuting the leaker, the Department of Justice should seek a federal court 

order halting further publication of the Pentagon Papers. Stopping the newspapers, he came to believe, 

was necessary to protect the inviolability of classified information.
By asking a federal court to issue a prior restraint, the government was seeking an 

unprecedented remedy. Never in the nation’s history had the civilian federal government halted a 

publication before the fact rather than seeking criminal prosecution of unlawful speech. Since the 

adoption of the Bill of Rights in 1791, both state and federal judges had understood freedom from prior 

restraint to be at the very core of the rights protected by the First Amendment. The Supreme Court made 

clear in its 1931 opinion in Near v. Minnesota that a prior restraint could be permissible only in the most 

extreme circumstances.

The government proceeded against the Times and The Washington Post—which had obtained a 

copy of the Pentagon Papers and begun running its own articles—in federal courts in New York City and 

the District of Columbia. U.S. District Judge Murray Gurfein granted a temporary restraining order against 

the Times, forcing it to halt its series for several days until a hearing could be held on a preliminary 

injunction, which if granted would extend the restraint further. Judge Gerhard Gesell of the district court in 

Washington refused to issue a similar order against the Post, but the U.S. Court of Appeals for the District 

of Columbia Circuit reversed his decision. After holding hearings at which the government attempted to 

prove that further publication would harm national security, both Gurfein and Gesell refused to issue 

preliminary injunctions. The cases then went to the U.S. courts of appeals, which reached different 

results. The Second Circuit in New York ruled that Judge Gurfein should hold another hearing at which 

the government could present additional evidence, while the D.C. Circuit agreed with Judge Gesell that 

no injunction was warranted. The Supreme Court of the United States then accepted the case.

After hearing oral argument from Solicitor General Erwin Griswold and lawyers for the 

newspapers, the Supreme Court on June 30, 1971, ruled 6-3 against the issuance of a prior restraint, 

allowing the Times and the Post to continue publishing their articles on the Pentagon Papers. Each of the 

nine justices issued a concurring or dissenting opinion to explain their vote, with the concurrences

focusing on the importance of the freedom of the press and the strongly disfavored notion of prior 

restraint, and the dissents arguing that the government should have had more time to make its case that 

further publication would harm national security.

In January 1973, Daniel Ellsberg, a former Defense Department official who had worked on the 

Pentagon Papers and later became disillusioned about the war, went on trial for stealing and leaking the 

study. After several months of trial, however, Judge Matthew Byrne of the U.S. District Court for the 

Central District of California dismissed the charges based on evidence of government misconduct. 

Members of a White House unit nicknamed the “Plumbers” had conducted illegal surveillance of Ellsberg 

and burglarized his psychiatrist’s office in the hope of finding damaging material on him. Following their 

activities against Ellsberg, the Plumbers burglarized the Democratic Party headquarters at the Watergate 

complex, planting the seeds of the scandal that ultimately resulted in Nixon’s resignation from office.

Legal Issues:

• Should the federal courts have temporarily restrained the newspapers from publishing information 

about the Pentagon Papers until hearings on the matter could be held?

• After hearing evidence, should the federal courts have issued preliminary injunctions against 

publication based on the potential threat to national security?

• Did the newspapers violate federal law by publicizing the content of the Pentagon Papers? 

Questions for Discussion:

• In what other times of war or national crisis has the federal government attempted to restrict 

speech?

• How should First Amendment freedoms be balanced against public safety and national security?

• Are prior restraints of publication ever justifiable? If so, under what circumstances?

• Do you think the federal government keeps too much information from the public?