The Legacy of The Pentagon Papers: An Interview With Erwin Chemerinsky

By Andrew Tran, YULR Online Article 

Erwin Chemerinsky is a lawyer, Distinguished Professor, and the current and founding dean of the University of California, Irvine School of Law. He has argued several cases before the Supreme Court, including Tory v. Cochran, Lockyer v. Andrade, and Van Orden v. Perry. Chemerinsky received his bachelors degree in Communication from Northwestern University in 1975 and his LLM from Harvard Law School in 1978. Chemerinsky is an expert on First Amendment law.

The following interview relates specifically to “New York Times, Co. v. United States,” a 1971 case known as The Pentagon Papers case. The Pentagon Papers were top-secret documents dealing with government decision-making during the Viet Nam War. In The Pentagon Papers case, the United States Supreme Court in a 6 to 3 decision held that the interest of the United States government in maintaining the secrecy of the Pentagon Papers on the ground of national security did not justify prior restraint on the freedom of the press guaranteed by the First Amendment. As a result, The New York Times and The Washington Post were free to publish The Pentagon Papers, which had been leaked to the newspapers by a government employee named Daniel Ellsberg.


In what cases have you been involved that were similar to the Pentagon Papers case, or that dealt with First Amendment issues?

I have handled a number of First Amendment cases. The one most similar to The Pentagon Papers case is a case that I argued in the United States Supreme Court in March of 2005 called Tory vs. Cochran. It involved a man named Ulysses Tory, who had been a client of the very famous lawyer Johnnie Cochran. Tory felt that the law office of Johnnie Cochran had not treated him fairly, and so he got a group of people, including some homeless people, to join in and begin picketing outside of Johnnie Cochran’s office. The signs said things like “You can’t get justice in America unless you’re rich,” “Johnnie Cochran won’t help you unless you have O.J.’s millions,” and things like that. Johnnie Cochran sued him for defamation and received an injunction that kept Tory and his wife, Ruth Craft, and their agents from ever saying anything about Johnnie Cochran or his law office in any public forum. In other words, the court issued a permanent injunction against speech. The Pentagon Papers case was all about an injunction against speech, and in my case, the Supreme Court, 7-2, held in my client’s favor that the injunction was unconstitutional. The Court stressed how overbroad the injunction was, saying the injunction had prohibited Ulysses, Craft, and the picketers from saying anything about Johnnie Cochran in any public forum.


Could you elaborate on the holding of the Supreme Court in The Pentagon Papers case?

The Supreme Court issued a short opinion for the six justices in the majority. It essentially said that whenever the Government wants to impose a prior restraint on speech, it bears a heavy burden. And the Government failed to demonstrate in this particular case that the disclosure of classified information would be harmful to national security. There were then nine separate opinions, one by each of the justices on the Court: six in the majority and three in dissent. The justices in the majority took varied positions to explain why the prior restraint was unconstitutional; the three dissenters emphasized national security and the need to defer to the Government as to why they would have gone along with the prior restraint. But if you ask me how to put it all together, as to the holding of the case, as the basic rule, the Government can impose a prior restraint only if it can show that it’s really necessary for national security. And never could the Government show the Court that The Pentagon Papers contained information the disclosure of which would be harmful to national security.


Who was Daniel Ellsberg and how was he involved with The Pentagon Papers?

Daniel Ellsberg was a Government employee at the Pentagon who was criminally prosecuted for having illegally disclosed the classified information – The Pentagon Papers – to The New York Times. The Government had illegally broken into Ellsberg’s psychiatrist’s office. Ellsberg had been illegally subjected to electronic surveillance. Also, the Nixon Administration offered the job of director of the FBI to the judge presiding over the Ellsberg trial, William Matthew Byrne, at the same time that he was hearing the case. Byrne decided, based on all of this, to declare a mistrial, and then all charges against Ellsberg were dismissed without prejudice.


If a mistrial had not been declared, do you think Ellsberg still would have won the case?

It is always hard to predict what did not happen, and I have never gone and studied the trial. Ellsberg did disclose the classified information to The New York Times. He subsequently admitted that. On the other hand, in the eyes of most people Ellsberg was a hero here for revealing things that never should have been classified in the first place, and that the American people should have had the right to know. So would a jury have convicted him? There is no way to know.


Are there any cases that limited the rights of government employees to free speech?

In 1968, in a case called Pickering vs. Board of Education, the Supreme Court said the speech of government employees is protected only if on balance the speech interests are more important than the government’s interests in efficient operation. More recently in 2006, in Garcetti vs. Cebalos, the Supreme Court said there is no First Amendment protection for the speech of government employees while on the job in the scope of their duties.


What precedent did the Government rely on in The Pentagon Paper case?

There had been no precedent on point that ever said that the Government could issue, or obtain from the court, a prior restraint in the name of national security. On the other hand, there are many cases that talk about the authority of the President to be able to protect the nation, and the United States Government said that what it was doing was protecting national security. The case United States vs. Curtiss-Wright Export Company from 1936 talked about the need for the President to be able to act to protect diplomatic secrets, to represent the United States in one voice. The Government was saying those are the things that we undermine by disclosing The Pentagon Papers.


What was the most important effect of The Pentagon Papers case on American law?

The Pentagon Papers case was important because it was the first time in American history that a court had issued an injunction against a newspaper publishing in the name of national security. And the Supreme Court, in a very short time, declared that unconstitutional and very strongly reaffirmed that above all, the First Amendment means no prior restraints on publication, such as no injunction on publication.


Was there an unexpected negative impact of The Pentagon Papers case?

The Pentagon Papers case, after all, made the Nixon Administration even more obsessive about secrecy. Some of the things that started with the Ellsberg case intensified and led to Watergate. The break-in at the psychiatrist’s office was followed by the break-in at the Democratic National Headquarters’ office. And, of course, that’s what the Watergate scandal all started with.


What was the legacy of The Pentagon Papers case?

The decision of the Supreme Court was a tremendous victory for the First Amendment. There is certainly confusion because the six-justice-majority each wrote a separate opinion on different grounds. But overall, the holding was a tremendous victory for the First Amendment.


Why, in your opinion, do we need First Amendment rights and freedom of the press?

Democracy depends on there being free speech and free press. The only way we can hold our government accountable is by exposing what it is doing. The only way elections can work is to point to the strengths and weaknesses of the different candidates. Whether it is candidates or incumbents, we need the press to expose what those incumbents have done that is right or wrong. James Madison wrote that, “Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with power that knowledge gives. A popular government without popular knowledge with the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.”


Do you think The Pentagon Papers to some extent reminded the American people of the need to keep a check on their Government?

I think it is less The Pentagon Papers case than the Vietnam War reminded people that they needed to keep a check on their government. The Pentagon Papers case arose in the context of a terribly unpopular, divisive war. The Pentagon Papers were a history of the Vietnam War up until 1968 and helped educate people about what got us into this tragic war. I think The Pentagon Papers were the reminder of the need to have an informed public.


Do you think the public to some extent has forgotten the need for an informed public since the wars in Iraq and Afghanistan?

Yes, one of the casualties of recent wars is often the Bill of Rights including the First Amendment, and I think that since the instance of September 11, as part of the War on Terror, we have lost some of these First Amendment constitutional freedoms. Last year the Supreme Court handed down a case, Humanitarian Law Project vs. Holder, that said that American citizens could be punished for speech encouraging foreign groups to use the United Nations for peaceful resolution disputes, or to help foreign groups apply for humanitarian assistance, if those groups have been labeled foreign terrorist organizations. Merely the speech of encouraging the use of international law for peaceful resolution disputes could be deemed material assistance to foreign organizations.



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