The First Amendment: New York Times v. United States (Mock Trial/ moot court)

In 1971, Daniel Ellsberg, an employee of the State Department, “leaked” secret military documents to New York Times reporter Neil Sheehan. The documents were part of a study commissioned in 1967 by the Johnson administration to determine the process through which the United States became involved in the Vietnam War, and whether these decisions were flawed.

When the Nixon Administration learned from The Times that the “Pentagon Papers,” as they came to be called, had been leaked, they ordered the newspaper not to publish them, citing national security concerns and “executive privilege” in controlling government information.

Your task in this case is to determine whether the government has the power to prohibit a news outlet from publishing secret information it has already obtained. Note that the question does not involve punishment after the fact, but “prior restraint” – the prohibition of publishing at all.

It is expected that attorneys and witnesses will supplement these basic facts with research on typical conditions and circumstances of the case. All outside research must be properly cited, using footnote format. AT LEAST ONE SOURCE CITED HERE MUST BE A BOOK. Attorneys’ and witnesses’ papers missing this research will not be accepted.

Due on the day of the trial

For attorneys: A two-page essay arguing your case. You must argue for or against the constitutionality of the law. This paper may serve as the basis for your opening statements in class. Some outside research on the circumstances of the case will be necessary

For witnesses: A two-page homework response in the form of an “affidavit,” explaining your position. You need not argue over the constitutionality of the law, just describe and explain your behavior.

Due the class meeting after the trial

For Justices: A one-page homework response declaring your opinion in the matter. Present your decision and explain how you came to it.

Assignments

Attorneys for NYT: 

Attorneys for US:

Neil Sheehan: 

HR Haldeman:

Judges: 

 Procedures:

8:15-8:30    Meet with your group to review the case

8:30 – 8:40      Opening arguments. Attorneys must present a three-minute minimum argument before the ourt.

8:40 – 8:55 (maximum)  questioning of Sheehan (appellant first)

8:55 – 9:10 (maximum)  questioning of Haldeman (respondent first)

9:10 – 9:15      closing arguments

9:15 – 9:35      Justices deliberate

Each student will earn an essay (for the written work) and an oral presentation grade (for in-class work).