By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Fifty years ago today, the United States Supreme Court handed down its per curium decision in New York Times Company v. United States, rejecting the Nixon administration’s demand to prevent publication of the Pentagon Papers. That secret history of the Vietnam War documented that the U.S. government had long known that the war couldn’t be won, but nonetheless continued to wage it anyway.
That case is often hailed as a milestone for press freedom. Yet as Adam Liptak spelled out earlier this month in The New York Times in A First Amendment Case That Made an ‘Incoherent State of the Law’:
The Supreme Court’s unsigned opinion rejecting the Nixon administration’s attempt to censor publication of a secret history of the Vietnam War was just three paragraphs long and declared only that the government had not overcome a “heavy presumption” against prior restraints — on that occasion.
The vote was, moreover, fairly close — 6 to 3. Every justice contributed a concurring or dissenting opinion, none of which got more than two votes. You need a spreadsheet to make sense of who voted for what, but the bottom line is at odds with the conventional view that the case was a flat-out First Amendment victory.
“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who represented The New York Times in the case, wrote in his 2014 book, “Friend of the Court.”
I encourage you to read Liptak’s piece, which discusses the rather muddled legacy of the Pentagon Papers case, and to which I don’t have much to add.
A half-Day 250 Mile Car Journey That Took Me From the 1950s to the 1970s
What I want to share in this post are my memories of the case seen throughly my then-ten-year-old eyes. But first, a bit of background.
In 1971 and until his retirement, my father, Harry, was by day a guidance counsellor at Sussex County Vocational and Technical High School. Yet his true passion was pursued in the hours immediately after school let out, when he coached various high school sports teams: football in the autumn, basketball or wrestling during the winter, leaving the spring for his favorite, baseball. The extra dollars he earned by coaching helped him support our family: my parents, I the eldest, three younger sisters, and my brother, the youngest, only 8 1/2 years younger than I.
Sometime during 1971, Dad was selected to attend a fellowship program at Boston University. that summer. There were 50 participants, and somewhat unusually for the time, the seats were divided equally between men and women.
So after our school year ended, all seven of us piled into our station wagon one sunny June day, along with all the clothing and household goods we’d need to spend six weeks in Boston – including a spare mattress strapped to the roof of the car – and drove to Boston. My parents had sub-let a Boston University professor’s Brookline apartment.
Until that time, I’d spent my childhood in small towns in northern New Jersey, first Sparta, then Allamuchy. While I keenly recall key events of the ‘60s – the assassinations of JFK, MLK, and RFK; the moon landing; Janis Joplin’s overdose; the shootings at Kent State (where my cousin was a first-year student at the time) – my day-to-day experiences were more those of a 1950s childhood, rather than what people think of when they hear the phrase “the 60s.”
In Boston, a very different version of the 1960s had played out. Our journey ran into some obstacles.The desk clerk at the motel where Mom had booked a couple of rooms for the night before we’d move into the apartment, took one look at all seven of us Scofield crammed into that car along with our mattress, and refused to check us in.
The next day, we took over that apartment, a comfortable, well-furnished place, not far from a trolley stop, Several bedrooms, a couple of baths, and a study with a large poster of The Bearded One on the wall. I didn’t recognize the face, but I could tell Mom and Dad were uneasy. This was 1971 and my parents, public school teachers, had lived through the McCarthy hysteria. The professor or his wife made a joke about Uncle Karl’s presence and my father smiled awkwardly.
The thing I remember most vividly from that summer was following the Pentagon Papers story through the pages of The Boston Globe. I don’t recall many day-to-day details. Even the memories I have are unreliable, as my initial first-hand impressions have been subsequently overwritten by later reading, study, and films. Yet one set of memories that I know are true: the black banner headlines. The thud of the large editions of the paper smacking against the sidewalk outside the newsstand. Even as a just-ten year old child, I knew that what was unfolding in Washington was important. Very important. History was happening all around me. During those six weeks in Boston, I was suddenly thrust into a big wide roiling world and when we went back home, that door would stay open to me. The summer made such an impression that there was no question of where I’d return, in the autumn of 1979, when I left home to attend university.
Now, sitting at my desk, when I can call up news from around the world by tapping a few keystrokes, it’s easy to forget just how limited were the news sources available in small town USA during that period, even though we lived no more than 65 miles from mid-town Manhattan. The New Jersey Herald covered local news and did a pretty god job with that. Dad took the New York Daily News for its sports coverage – and after the summer of ’71, Mom added the New York Times, so that I could read it. At that time, there was no home delivery out in the boondocks, nor all that much demand either, so she had to special order the paper from Benny’s Market and then pick it up every day – three miles there, the same back again.
There was no cable of course, so we got our TV signals through a rooftop antenna, which captured the networks, CBS (channel 2), NBC (4), ABC (7), the local NY channels, 5, 9, and 11 (which had an atrocious signal, and alas was the source of much grumbling from my father, as he struggled to watch its snowy broadcasts of New York Yankees games).
During that summer of 1971, I read the Globe every day. And I gorged on it. We were well-protected children – over-protected I would say. Yet I had a free-range childhood, especially compared to today. Dad was off at seminars or sessions much of the time, so my mother did most of the day-to-day supervision. Even though I had absolutely no street smarts, I was allowed to walk on my own down the street to the main intersection, where I would buy the paper. There was a small pharmacy, where I remember buying a replacement strap for my new Timex watch: my birthday present; Mom let me select the strap all by myself. She also sent me to purchase things from the Stop & Shop. I usually enlisted my sister Judi, three years younger than I, to accompany me on these missions. On one, we somehow managed to overturn – by accident – a Lavoris mouthwash display. To quite dramatic effect. Bright crimson, cinnamon-scented liquid splashed out from the shattered glass bottles used in those pre-plastic days.
These are just a few of the first steps towards adulthood I took that summer. The most lasting one was to grasp for the first time the importance of the press. Today in our very different media universe, where bloggers, and independent journalists now play a large role, the central concern raised in the Pentagon Papers case remains: how important it is for people to know what the government is doing, ostensibly on our behalf. My own position on the First Amendment is largely an absolutist one, and probably resembles most closely the position of the American Civil Liberties Union (ACLU) of my childhood (but alas, not that of the ACLU of today). From the Liptak piece, discussing an ACLU reply brief written to answer the question posed by Justice Potter Stewart to pin the NY Times attorney down and forcing him to concede a situation where prior restraint might be necessary:
It said Justice Stewart’s question “must be answered in a totally different manner” and that “the answer is, painfully but simply, that the right of a free people to determine its destiny has been, and should continue to be, paramount to any attempt by the government to impinge upon, erode or ultimately destroy the right of the people to know.”
I’ll close by mentioning another issue that has persisted and indeed become more pernicious over the last half century. From the Liptak piece:
…there is an almost universal consensus that the government classifies far too much information. Erwin Griswold, a former dean of Harvard Law School who argued the case for the Nixon administration as U.S. solicitor general, agreed that the classification system was broken.
“It quickly becomes apparent to any person who has considerable experience with classified material,” he wrote in a 1989 essay in The Washington Post, “that there is massive over-classification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”
That applied, he wrote, to the Pentagon Papers themselves. “I have never seen any trace of a threat to the national security from the publication,” he wrote. “Indeed, I have never seen it even suggested that there was such an actual threat.”
That has been my experience too, as I have reviewed thousands of pages of official documents while conducting research in various presidential libraries. The classifiers aren’t worried about security breaches, but instead about embarrassment. And brandishing the national security cudgel is often sufficient to make people who should know better cower and defer to government arguments, as I discovered to my chagrin when I sketched out an absolutist First Amendment position in Larry Tribe’s constitutional law class one day during the autumn of 1989. Alas, though the good professor later acquired a serious case of Trump Derangement Syndrome, I exclude him from this criticism. He appreciated my arguments – so much so that when I returned to my apartment that day, there was a message on my answer machine inviting me to work as one of his many research assistants.
Not many classmates joined me in defending the pole I’d chosen that day, decades before the launch of cancel culture. Some tied themselves into knots justifying constraints on speech. And as I was defending my turf, I noted at the time the silence of another reliably loquacious classmate who, as I’ve written about, was renowned among our HLS ’91 class for his annoying pontifications in just about every class. Not that day, however. Perhaps defending the First Amendment didn’t accord with the temperature of the room. Or perhaps he had another reason for staying silent. But that was rarely the case in the other classes we took together (see Don’t Be An Obamamometer: Support Naked Capitalism and Critical Thinking).
Back when it mattered, the Pentagon Papers were published. The Supreme Court didn’t stand in the way. Senator Mike Gravel – who died this week, age 91, on June 26, 50 years after the day the Supreme Court heard arguments in the Pentagon Papers case – also played a courageous role in keeping us informed, by reading the papers into the Congressional Record. Daniel Ellsberg, the original whistleblower, is still with us.