Two Weeks in the Courts
"From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment. Fortunately upon the facts adduced in this case there is no sharp clash such as might have appeared between the vital security interest of the Nation and the compelling Constitutional doctrine against prior restraint. If there be some embarrassment to the Government in security aspects as remote as the general embarrassment that flows from any security breach, we must learn to live with it. The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know." Judge Murray Gurfein in the lower court in Pentagon Papers case.
The case travelled through the courts in just two weeks. In addition to interpreting the First Amendment, judges had to weigh whether classified material could be published and if disclosure would harm national security. On those points, the Times filed a critical affidavit detailing the routine leaking of classified information.
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" [I]t was a brilliant description of life in Washington, of the give and take between journalists and their official sources and the degree to which classified information was easily made available by government officials when they thought it was useful to do so." Floyd Abrams, leading 1st Amendment lawyer who represented The New York Times describing the Frankel affidavit |
In the Pentagon Papers case, Alex Bickel presented the argument for The New York Times and Erwin Griswold, the United States Solicitor General, represented the government.