The Pentagon Papers scenario set a terrible precedent.

[coloradodem2005]

The Pentagon Papers are a 7,000-page, top-secret United States Department of Defense history of the United States' involvement in the Vietnam War from 1945 to 1971. The Pentagon Papers were leaked in 1971 by Department of Defense worker Daniel Ellsberg. Excerpts were published as a series of articles in The New York Times beginning June 13. <1> On June 29, U.S. Senator Mike Gravel of Alaska entered 4,100 pages of the Papers into the record of his subcommittee on Buildings and Grounds. These portions of the Papers were subsequently published by Beacon Press. <2>

The document revealed, among other things, that the government had planned to go to Vietnam even when president Lyndon Johnson was promising not to, and that there was no plan to end the war. The document increased belief in the credibility gap, hurting the war effort.

Shortly after the Times began publishing the series, President Nixon became incensed. His words to Secretary of State Henry Kissinger that day included "people have gotta be put to the torch for this sort of thing..." and "let's get the son-of-a-bitch in jail." <3> The next day, Attorney General John Mitchell talked Nixon into getting a federal court injunction to cease publication of the documents. This was the first time in U.S. history that any executive successfully obtained a judicial prior restraint against publication for national security reasons.

On June 18th, the Washington Post began publishing the Papers. That day the Post received a call from the Assistant Attorney General, William Rehnquist, asking them to stop publishing the documents. When the Post refused, the Justice Department sought another injunction. That court refused, and the government appealed. The Times also appealed the injunction that was issued, and on June 26 the Supreme Court of the United States agreed to take both cases, merging them into the case New York Times Co. v. U.S. (403 US 713). The Supreme Court held in a 6-3 decision that the injunctions were unconstitutional prior restraints and that the government had not met its burden of proof. The justices wrote nine separate opinions, disagreeing on significant substantive issues. While it was a victory for the First Amendment, many felt it was a lukewarm victory at best, offering little protection for future publishers when claims of national security are at stake. Thomas Tedford and Dale Herbeck summed up the reaction of editors and publishers at the time:

"As the press rooms of the Times and the Post began to hum to the lifting of the censorship order, the journalists of America pondered with grave concern the fact that for fifteen days the 'free press' of the nation had been prevented from publishing an important document and for their troubles had been given an inconclusive and uninspiring 'burden-of-proof' decision by a sharply divided Supreme Court. There was relief, but no great rejoicing, in the editorial offices of America's publishers and broadcasters." (Tedford and Herbeck, pp. 225–6 <4>)
<snip>
http://en.wikipedia.org/wiki/Pentagon_Papers

[whistle]

1. Daniel Ellsberg is a true American hero

[punpirate]

2. Rather than suggest this was a...

... "terrible scenario," consider the alternatives--first, that Ellsberg, despite knowing the contents of the documents, censored himself and chose not to offer the documents to the public. That would be the worst sort of prior restraint.

The next alternative--one increasingly common with the courts of today--would be a refusal to hear any appeals on those injunctions--which would have let the injunctions stand.

The next alternative would be that the court might have taken the case and ruled otherwise--either giving broad discretion to an over-powerful Executive to override 1st Amendment rights in national security matters, or, nearly as awful, putting the burden of proof for the public's right to know (as balanced against national security interests of the state) on the defendants, which would have been a thoroughly capricious--but entirely plausible--decision, and would have made it time-consuming and expensive and would eliminate all notions of prior restraint.

It's not as bad as it could have been. Had this case come up in today's environment, I think the results would have been much, much worse. The courts would very likely sweep aside any arguments against prior restraint and given the Executive power to make decisions as it chose in matters involving national security.