When the government issued injunctions against the publication of the Pentagon Papers by the New York Times and the Washington Post, its argument was based on the Espionage Act of 1917, an act passed when the United States was entering the First World War. The same argument has been used against many, from union leader and socialist Presidential candidate Eugene Debs in 1918 to Chelsea Manning and Edward Snowden more recently. In 1971, the New York Times and Washington Post sued the federal government in order to be allowed to continue printing stories informed by the Pentagon Papers, and the Supreme Court ruled that the government had not shown sufficient evidence to justify prior restraint, the very limited right of government to stop information from being used by the press due to its libelous or harmful nature.
The decision in the case is less important as a precedent because it has very specific parameters that apply to this very narrow situation. It is more important as an indication of the significance accorded to the First Amendment by the Justices and as an example of the wide-ranging philosophical perspectives on it. The fact that these personal freedoms were the very first changes made to the Constitution means that the Founders saw them as important guarantees that the governed would not be controlled by the government.
In this lesson, students will learn about the First Amendment, the Supreme Court’s power of judicial review, and the Espionage Act. The First Amendment is the first article of the Bill of Rights. George Mason, a delegate to the Constitutional Convention, had moved that a Bill of Rights be added as a preface to the U.S. Constitution, but his request was denied. But when the Constitution was sent to individual states to ratify, there was considerable resistance because of the absence of such an explicit statement of rights; even those who wanted to ratify the Constitution felt that these rights were implied in the Constitution because of the limited powers granted to the federal government. In order to guarantee ratification, the pro-Constitution Federalists had to promise amendments that would guarantee individual and state rights. In 1789, James Madison became the “Father of the Bill of Rights” by drawing up a list of amendments which were subsequently ratified by the states.
Access the full curriculum guide for The Post and other films at www.journeysinfilm.org.