• Eric Harvey

Introducing New York Times Co. v. U.S.

Updated: Apr 19

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Precedent For Combatting Government Secrecy in Celebration of The First Amendment, Both in the Context of Assange's Extradition Trial and George Floyd's Murder

By Eric Harvey


Photo Credit: ThoughtCo.

The year is 1952. The Cold War is raging, and the Red Scare is ravaging America. Anxieties about the spread of Communism deeply motivate so much of the American government's conduct.

As the Cold War intensifies, McCarthyism is a plague, limiting freedoms of speech, of press, and of assembly—fundamental rights guaranteed by The First Amendment. With McCarthyism, the government’s fight against Communism within America becomes increasingly corrupt. Anyone suspected of ties to Communism, regardless of how strong or weak the evidence of those ties is, is vulnerable to censure, and even outright persecution.

In the political climate of unbridled McCarthyism, President Dwight D. Eisenhower terminates thousands of government workers, suspecting them of membership in The Communist Party or sympathy for Communists in general. Democratic Congressman John Moss of Sacramento attempts an investigation of these terminations. When he requests all documentation pertinent to the terminations, the government bars his access to them. In frustration, he goes through the motions of pushing legislation through Congress, which increases public access to government records.

It is not until 1966 that President Lyndon B. Johnson signs The Freedom of Information Act—the fruits of Moss’ legislative efforts. But, as political activist Ralph Nader argues in a series of widely publicized speeches about The Act he delivered in the late 60s, it is a hollow piece of legislation that does very little for public impotence in probing veils of secrecy within government. The series of speeches were ultimately codified in a piece titled Freedom from Information: The Act and the Agencies, in which Nader exposes how the government cleverly and dishonestly circumvents the rights to access to information the Act is supposed to provide. The piece is powerful in its claim that, “Information is the currency of power.”

Despite Nader’s advocacy for sweeping change in how the government handles requests for information, it remains the prevailing notion that secrecy within government is justified by the need to protect national security, and particularly national security during war time. LBJ, upon signing The Act, ostensibly celebrates it as a powerful move in the right direction for combatting governmental corruption, but of course articulates the caveat to his professed endorsement of the Act that it doesn’t truly apply when issues of national security may be compromised by the publication of sensitive information.

As I have covered in recent articles, barriers to the publication of information, despite the climate of governmental secrecy that had dominated America in a unique way since the signing of The Espionage Act of 1917 and the Sedition Act of 1918, were no deterrence to radical opponents of The Vietnam War. Recall the great Dr. Daniel Ellsberg, covered in recent articles on this blog.

Dr. Ellsberg had arguably begun his public service as a blindly patriotic member of the American military in Southeast Asia. His transformation to dissident was gradual, and he worked in a fairly conservative capacity as a policy analyst in the military before moving onto a position at The Rand Corporation in the 50s. Circa the ratification of The Tonkin Gulf Resolution, he was instrumental in providing policy justifications for American aggression against North Vietnam. Nevertheless, on 7 August 1964, the Resolution was ratified as a way for LBJ to retaliate against destruction by North Vietnamese warships of American military vessels stationed off the coast of Vietnam. Ultimately, however, Dr. Ellsberg was indispensable to the anti-war protests that proliferated as the war progressed.

In the wake of the Resolution vast swathes of bombs were dropped in North Vietnam and in surrounding countries. The violence against both enemy combatants and Vietnamese civilians the American military perpetrated, as young American men died at alarming rates in the Southeast Asian campaign, disturbed the public in the United States, as it avidly watched coverage of the campaign on prime-time television.

Associated Press photographer Nick Ut may have shot the photo of Phan Thị Kim Phúc, more commonly known as “Napalm Girl” in 1972, but it is emblematic of images and videos the American public consumed as the war progressed, and particularly as The Tet Offensive devastated the American military in South Vietnam. In the photo, “Napalm Girl” is pictured as a little girl running naked along a back country road in North Vietnam, as she is covered in napalm. Her skin is burning off.

31 January 1968 marked one of the most disheartening days in the war. 30 January 1968 The Tet Offensive began, lasting through 23 September 1968. It was marked as a success for The Vietcong in its attempt to scale back America’s military presence in Vietnam. It was seen as the result of America’s inability to quickly win the Vietnam War. The promise of rapidity in the campaign was frequently made to the American public as the war progressed. But it was a hollow promise, and the American public was made aware of how slow the campaign would remain as a result of the Offensive.

During the Offensive, North Vietnamese forces attacked 13 South Vietnamese cities, bringing the American casualty stats to 39,000 with 33,249 killed. The war officially ended seven years later in 1975, but by the end of the war, just over 58,000 service members had died. In other words, the highest number of casualties rose dramatically in 1968, reaching a culmination point in 1972. American opposition to the war only mounted in the late 60s, as a result.

It is around this time, in the early 70s, that Dr. Ellsberg changed his position on the war. After meeting with draft age men willing to go to prison rather than be drafted to fight in Vietnam, Ellsberg realized that he was on the wrong path. In possession of Robert McNamara’s study of America’s involvement in Southeast Asia since the 1950s, and consequently intimately exposed to how perverse America’s campaign was, Dr. Ellsberg ultimately decided to disseminate the study to Neil Sheehan at The New York Times and a handful of American congressmen.

In the wake of Dr. Ellsberg’s providing the report to Sheehan and a handful of Congressman, it was not long until NYT began releasing the study, The Pentagon Papers to the public. Other newspapers did so, as well. The government mobilized, effecting an injunction on NYT. But that injunction was invalidated in New York Times Co. v. U.S in 1971—the landmark Supreme Court case where NYT was venerated as emblematic of The Framers’ commitment to the notion that only an informed public could insure a truly free and democratic state as a check on the three branches of American government.

It is with this genealogy of the historical events that engendered the non-observance of national security as the dispositive factor in whether sensitive information may be exposed to the public without censure, as that non-observance is articulated in New York Times Co., that I plan to begin our analysis of precedent regarding combat against government secrecy. Stay tuned for future articles that will feature analysis of precedent from the first half of the 20th century thru the present-day, as that precedent relates to judicial tests for determining whether censure of political dissidence is merited.

It is a traumatic time for the First Amendment. While some of the protests in cities across America in the wake of George’s Floyd’s killing by brutal Minneapolis police officer Derek Chauvin have been violent and thus problematic and perhaps unjustifiable in their means, many of the demonstrations against police brutality have been peaceful.

The First Amendment, as I said at the beginning of this piece, doesn’t just deal with freedom of expression and freedom of the press. It deals with freedom of assembly, as well. Protests are both an exercise of freedom of expression and freedom of assembly. But our president recently had law enforcement violently disperse peaceful protesters in Washington, DC just for a photo op at a church near The White House.

If our president is willing to order the use of tear gas and rubber bullets against peaceful protesters, he is not fit to run our country, and he is an enemy of The Founding Fathers' firm belief in an informed and politically cognizant public.

President Trump is a divisive figure, and even high-ranking military men these days say his threats to mobilize the American military under The Insurrection Act of 1807 would devastate the American public’s relationship with the armed forces, severely damaged during the Vietnam War.

High-ranking Republicans such as former National Security Advisor Colin Powell, Republican Senator of Utah Mitt Romney, and Former President George W. Bush have said they will vote for Biden in the upcoming election. In addition, in a recent Facebook post, former Secretary of State under President Bush Condoleezza Rice, a Republican, said:

"Enough! Donald Trump should not be President. He should withdraw. As a Republican, I hope to support someone who has the dignity and stature to run for the highest office in the greatest democracy on earth."

Available at:, Accessed 9 June 2020.

In other words, opposition to President Trump does not run along partisan lines. It is becoming increasingly universal.

Protestors are responding to a video taken by a bystander during the eight minutes and 46 seconds that Chauvin kneeled on the back of George Floyd’s neck as Floyd pleaded for his life and called out for his mother. Let me re-iterate that. They are responding to a video. Dissemination of that video to the public is secured under the First Amendment. Thus, one of the most powerful demonstrations for civil rights in history has been fomented by filmic documentation of George Floyd’s tragic death. It is thus in a way comparable to Ut’s photograph of “Napalm Girl.” Both the video of Floyd's murder and Ut's photograph serve as disturbing evidence of the darker side of American history--entries into historical record through the media of how awful the American government can be. It is content like this that the First Amendment entitles publications to disseminate.

Considering that protestors are responding to a video, I ask that if not for the First Amendment, “Would the Trump Administration have been successful in effecting injunctions on those that took to social media accounts with the video and news outlets that featured the video?" No news publications I have reviewed have broached the subject of whether the government has attempted censure of media that features the video. So, this is a bit of a hypothetical question. But it is still pertinent in an exploration of Trump's assault on our liberties.

In the wake of New York Times Co. v. U.S., it might be difficult for Trump to impose an injunction. But then consider how Wikileaks has been treated. As I pointed out in a recent post, the American government, alongside other nations, has been able to render Wikileaks virtually inconsequential by throwing Wikileaks-founder Julian Assange in a prison cell where he is being subject to human rights abuses. And it is pretty clear that Assange's political dissidence and his publication of sensitive government secrets are the reasons he has been pursued.

Again, if not for The First Amendment, I suspect Trump would be more successful in curtailing the public’s exposure to all of the information that has been widely circulated about racial injustice in this country. I am saying this, assuming that the thought of an injunction has occurred to him. We know that he hates the media, after all.

The protests are an essential demonstration of the rights all Americans deserve. At this time, I contend then that dedication to protection of the First Amendment is not solely relevant to championing the rights of righteous men like Assange and Edward Snowden and women like Chelsea Manning, but also very real instances of human suffering like the historical disenfranchisement of people of color.

Stay tuned.

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