The Pentagon Papers case is one of the most important cases involving freedom of the press. When Robert McNamara was secretary of defense during in the 1960’s, he became disenchanted with U.S. involvement in the Vietnam War. Before he left office in 1968, he ordered a secret study of all Defense Department documents relating to how the United States had gotten involved in the war. The completed study contained three thousand pages of text and four thousand pages of documents—which collectively became known as the “Pentagon Papers.”

The study and documents were kept secret (although not all its documents had been classified as secret) because they detailed several incidents in which McNamara and other national leaders had lied to Congress and the public about the U.S. entrance into the war. The study also disclosed that the United States had supported South Vietnamese military actions against North Vietnam before the 1964 Tonkin Gulf incident that could be regarded as provocative, if not illegal, under international law. Such actions could have been seen as having the North Vietnamese in their actions in the Tonkin Gulf incident, and, therefore could have made the U.S. retaliation a violation of international law, instead of an act of self-defense. The papers also included diplomatic documents between U.S. and foreign governments that were regarded as highly secret because they might embarrass other governments into retaliating for their disclosure by refusing to communicate with the United States. For all these reasons, the U.S. government naturally wanted to preserve the papers’ secrecy, while every newspaper would have been eager to publish them.

Daniel Ellsberg, an employee of the Rand Corporation, a semiprivate U.S. Air Force “think tank,” duplicated the documents and gave copies to The New York Times, the most prestigious American daily newspaper. All Rand employees were routinely required to have security clearances before they could examine the documents, and had to sign contracts promising not to violate their clearance as a condition of employment. Despite knowing the employment and criminal penalties for disclosing national secrets, Ellsberg felt that the Pentagon Papers contained information that the public had a right to know, even though giving them to a newspaper was equivalent to stealing government property.

The New York Times studied the papers and then, without notice to the government, printed some of them while stating they would publish the rest in installments starting on Sunday, June 17, 1971. The shock to high government officials was great. The newspaper’s editors were aware of the questionable legality of their actions: They had possessed them for a long time, they did not return them to the U.S. government, and they clandestinely published them. Some government officials felt that the Times publishers were as much in violation of the law as Ellsberg.

The federal Justice Department prosecuted Ellsberg for stealing government documents, but failed to gain a conviction. Ellsberg’s case was thrown out of court when it was discovered that President Richard Nixon had ordered a secret White House burglary team to break into his psychiatrist’s office to search for information that would discredit Ellsberg. Acting under a law that prohibited the government from pressing a prosecution when the government itself has violated the law, the judge dismissed the case. After failing to convict Ellsberg, the Justice Department decided it would be futile to proceed against The New York Times.