The career of the late Ben H. Bagdikian traced a long shining arc across the firmament of American journalism, from sharing a Pulitzer Prize in his earlier years at the Providence Journal to serving as the most perceptive and demanding of media critics and finally as professor and dean of the Graduate School of Journalism at the University of California, Berkeley.

Gentle and soft-spoken in manner, he was nevertheless as combative as need be when defending his core principles of independent reporting and freedom of expression.

It was my privilege to work closely with him during his stint in the 1970s as assistant managing editor for national news at The Washington Post, most notably when the Post published stories based on the “Pentagon Papers” and went on to win the subsequent fight in the U.S. Supreme Court that ended with a virtual bar on prior restraint by government on publication of news.

Bagdikian was already a noted media critic and scholar of the press when Post Executive Editor Ben Bradlee brought him aboard from the RAND Corporation in 1970, challenging him to put his ivory-tower theories into practice. That is what Bagdikian proceeded to do.

As a devotee of in-depth investigative journalism, for example, he instituted several series on American institutions and their systemic problems. Each series started on Page 1 and jumped to a clear page inside, every day for a week. As it happened, he assigned me to handle the substantive editing under his guidance, so I am happy to count him among my mentors. The Post later republished each series as a paperback. For one series, The Shame of the Prisons, Bagdikian arranged to get himself sent to prison in Pennsylvania as a wife murderer.

It was publication of the Pentagon Papers, though, that marked the First Amendment highlight of his tenure. As it happened, I was on hand and watched the debate over whether to publish like a fly on the wall.

The Pentagon Papers, which ended up as a landmark Supreme Court case, began offhandedly as an academic exercise.

By the summer of 1967, then-Secretary of Defense Robert S. McNamara was to recall later, “it was clear that our policies and programs in Indochina had evolved in ways that we had neither anticipated nor intended, and that the costs—human, political, social, and economic—had grown far greater than anyone had imagined. We had failed. Why this failure? Could it have been prevented? What lessons could be drawn from our experiences that would enable others to avoid similar failures? The thought that scholars would surely wish to explore these questions once the wars had ended was increasingly on my mind.”

So McNamara had a DoD task force begin gathering government documents. “I never thought to mention the project to the president or the secretary of state,” McNamara recalled in his book, In Retrospect: The Tragedy and Lessons of Vietnam. “It was hardly a secret, however, nor could it have been with 36 researchers and analysts ultimately involved.”

Nevertheless, the resulting 3,000-page study, with 4,000 more pages of supporting documents, was classified “Top Secret–Sensitive” when it was completed in 1969. It was officially entitled “Report of the Office of the Secretary of Defense Vietnam Task Force” and ultimately became known as the Pentagon Papers. Notably, the most recent document was from 1968.

Although the study was historical in content and intent, it contained classified material about a war that was still going on—U.S. withdrawal didn’t come until 1973—and was not completely declassified until 2011. Moreover, some of its content was embarrassing to both the former Johnson administration and the current Nixon administration. It was, after all, about policy failure.

One of the researchers for the study was Daniel Ellsberg, a former Marine officer who went on to earn a Ph.D. and become a military analyst at the RAND Corporation, which did a lot of contract work for the federal government.

Ellsberg became convinced that people should know what the task force had dug up. In 1969 he surreptitiously photocopied the study and gave it to the Senate Foreign Relations Committee. Silence.

Then, in 1971, he gave it to Neil Sheehan, a reporter for The New York Times who had been a distinguished war correspondent in Vietnam.

The Times secretively gathered its reporters who were versed in Vietnam, assigned them to write stories based on the study, and walled off a secure areas of the composing room where printers put the stories into type.

After three months, the Times kicked off publication.

“Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” said the first Page 1 headline on June 13, 1971. Inside were page after page of additional articles based on the Pentagon Papers.

At The Washington Post, Executive Editor Ben Bradlee was galvanized by being scooped by the Times. He wanted his own newspaper to get at those documents.

Fortunately, Ben Bagdikian knew Ellsberg from the RAND Corporation and figured he was a likely source. They got in touch.

Meanwhile, the Nixon administration’s Justice Department went into federal court to prevent the Times from publishing any more stories, citing national security.

The judge rejected the claim and the paper kept publishing. But the government went to the Second U.S. Circuit Court of Appeals and won an injunction against further publication.

So the Times dutifully shut down its presses while pursuing its legal appeal.

Ellsberg then agreed to provide Bagdikian with copies of the papers, and for the sake of secrecy Bagdikian took them to Bradlee’s Georgetown home rather than the Post building. Three reporters with experience writing about Vietnam—Chalmers Roberts, Murrey Marder and Don Oberdorfer—were brought there to dig through the papers and write stories, and I was sent over from the Post to edit their copy.

Bradlee, Bagdikian and Deputy Managing Editor Howard Simons were on hand to supervise—and, as it turned out, to argue with the lawyers.

Attorneys Roger Clark and Anthony Essaye, of the firm Royal, Koegel and Wells, were experienced and comfortable dealing with Post editors and reporters on issues that came up, like claims of defamation, but this situation made them uncomfortable.

Their essential argument was that if the Post went ahead and published while the Times was under court order not to publish, that act could be construed as contempt and the Post could be penalized.

The essential counterargument of the reporters and editors was that the Post had a duty to print the news it had gathered. “The way to assert the right to publish is to publish,” Bagdikian memorably said.

The lengthy argument was vividly reconstructed, based on recollections of participants, in The Powers That Be, David Halberstam’s 1979 book about the big media companies. Bagdikian himself described it at length in his 1995 memoir, Double Vision.

As Halberstam put it, when this watershed fight for a free press came along “it was as if Bagdikian, press critic and press scholar, had been waiting all his life for it.”

Ultimately, the intramural dispute in Bradlee’s home was settled by Post owner Katharine Graham, who was reached by telephone at a party. She decided to go with her editors against the advice of her lawyers and the Post’s top business executive, Frederick S. “Fritz” Beebe, who by that time also had turned up at Bradlee’s house.

Kay Graham gave the order to go ahead and publish.

Both the Post and the Times went on to prevail over the Nixon administration in the U.S. Supreme Court. The resulting decision effectively invalidated virtually all prior restraint on publication.

The ruling has gone into the archives as New York Times Co. vs. United States, 403 U.S. 713 (1971), and the following year the Times was awarded the Pulitzer Prize for Public Service. Nevertheless, the role played by the Post was arguably more important.

The decision by the Times to publish was bold, but it was even more bold for the Post to go ahead with its Pentagon Papers stories after the Times had been forbidden to do so and had acquiesced.

The Post asserted the right to publish by publishing.

The Post’s position also strengthened the legal case. The Post won at both levels leading up to the Supreme Court—the district and appellate federal courts. The Times, by contrast, had been stopped at the appellate level and hadn’t published since then, leading to a gap of more than two weeks until the Supreme Court ruled.

The conflict between two U.S. Circuit Courts of Appeal made a powerful argument for the highest court to take up a case several of the brethren would have preferred to let fester.

The resulting 6–3 decision isn’t particularly quotable in itself. It’s a “per curiam,” or “for the court,” order with nobody’s name on it. It simply says the highest court agreed that the government had not met the “heavy burden of showing justification for the imposition” of a restraint on publication.

Justices Potter Stewart and Byron White went along with the result—that is, lifting the stays—but suggested other circumstances might have dictated otherwise. They said that under certain circumstances the government might be justified in getting injunctions against publication. But, Stewart wrote, Congress hadn’t provided the Executive Branch with that authority.

Similarly, Justice Thurgood Marshall wrote: “The issue in this case is whether this Court or the Congress has power to make law. . . . The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws. . . . It did not provide for government by injunction in which the courts and the Executive Branch can ‘make law’ without regard to the action of Congress.”

Justice John Marshall Harlan, joined by Chief Justice Warren Burger and Justice Harry Blackmun, dissented and said they would have sent the cases back to lower courts for fuller argument.

Accompanying that same brief order, however, are ringing concurrences from the other three justices that are destined to be cited in future First Amendment cases. They reflect Bagdikian’s credo.

Justice Hugo Black, joined by Justice William O. Douglas, said the government’s case against the Post should have been dismissed and the injunction against the Times vacated “without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of these injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. . . . In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.”

Justice William J. Brennan Jr. not only rejected the government’s case for prior restraint but warned against trying anything like that again. “I write separately only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession. . . . The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise.”

Let’s give the late David Halberstam the last word about the Post, the Pentagon Papers and the vindication of Bagdikian’s credo. From The Powers That Be:

“It was, they all thought later—Bradlee and [Editorial Page Editor Philip] Geyelin and Mrs. Graham—the first moment of the Post as a big-time newspaper, a paper able to stand on its own and make its own decisions. Without it, they were sure, there never would have been Watergate. Because of the decisions that were taken that night, there were never any decisions needed on Watergate; never during Watergate did Ben Bradlee have to call Katharine Graham about whether or not they should print a particular story. If you had it, you went with it. It was the key moment for the paper, the coming of age.”

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