A First Amendment Case That Made an ‘Incoherent State of the Law’


This article is an element of a special report on the 50th anniversary of the Pentagon Papers.

The Pentagon Papers case was a triumph for press freedom. Or was it?

The Supreme Court’s unsigned opinion rejecting the Nixon administration’s try and censor publication of a secret historical past of the Vietnam War was simply three paragraphs lengthy and declared solely that the authorities had not overcome a “heavy presumption” in opposition to prior restraints — on that event.

The vote was, furthermore, pretty shut — 6 to three. Every justice contributed a concurring or dissenting opinion, none of which received greater than two votes. You want a spreadsheet to make sense of who voted for what, however the backside line is at odds with the standard view that the case was a flat-out First Amendment victory.

“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams, who represented The New York Times in the case, wrote in his 2014 e book, “Friend of the Court.”

There are, it seems, two methods to grasp the Pentagon Papers determination. One is that it was a potent vindication of press freedom establishing a bedrock precept: The authorities can’t cease the new media from offering info to residents in a democracy.

Another view takes account of the letter and limits of the determination. Even as to prior restraints, the Supreme Court left the door barely ajar. As to the risk of punishing the press after publication, two justices in the majority wrote that they’d little doubt that information organizations might be prosecuted below the espionage legal guidelines.

To make certain, the determination has taken on a symbolic weight that has swamped its technical holding, stated Geoffrey R. Stone, a regulation professor at the University of Chicago and an editor of a quantity of essays commemorating the 50th anniversary of the determination, “National Security, Leaks and Freedom of the Press.”

“The case created a largely overwhelming sense that the press cannot be either enjoined from or prosecuted for publishing national secrets,” he stated. “That’s become the expectation as a result of Pentagon Papers.”

But even when the determination appears to have created near-absolute safety for the press, he went on, it addressed just one piece of the relationship between residents and their authorities.

An middleman — the press — was protected. But neither its sources nor its readers gained rights.

“What Pentagon Papers and its successor decisions created,” Professor Stone stated, “was an incoherent state of the law.”

The determination didn’t reside as much as its promise, Anthony Lewis, a Supreme Court reporter and columnist for The Times and an authority on the First Amendment, wrote in his 1991 e book, “Make No Law.”

“The Pentagon Papers case was a famous victory for the press, and for the Madisonian principle that the public must know what its government is doing,” wrote Mr. Lewis, who died in 2013. “Or so it seemed at the time. Later decisions showed that it was not much of a victory.”

Prior restraints in opposition to the press could have been successfully barred, Mr. Lewis wrote, however the Supreme Court didn’t hesitate to dam books by former authorities officers who sought to write down about nationwide safety secrets and techniques they’d discovered in the course of their employment.

In these later selections, Professor Stone stated, “the court took the view that there is no right to leak and no public right to information.”

The determination had one other, darker facet, wrote Alexander Bickel, the Yale regulation professor who argued the case for The Times in the Supreme Court.

“The American press was freer before it won its battle with the government,” he wrote in his traditional 1975 e book, “The Morality of Consent.”

“Through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” he wrote. “That spell was broken, and in a sense, freedom was thus diminished.”

Justice William O. Douglas, who was in the majority in 1971, wrote two years later that the vote had been too shut and had adopted two weeks of profitable government-imposed censorship.

“We have allowed ominous inroads to be made on the historic freedom of the newspapers,” he wrote. “The effort to suppress the publication of the Pentagon Papers failed only by a narrow margin and actually succeeded for a brief spell in imposing prior restraint on our press for the first time in our history.”

It was unimaginable, although, that the Supreme Court would rule out prior restraints fully, and that posed a litigation-strategy puzzle for Professor Bickel when he argued earlier than the justices.

He conceded, at the least in the summary, that courts might cease a publication if it might “lead directly and unavoidably to a disastrous event.”

Justice Potter Stewart explored the level. What if, he requested, a disclosure of delicate info in wartime “would result in the sentencing to death of 100 young men whose only offense had been that they were 19 years old and had low draft numbers?”

Professor Bickel tried to duck the query, however the justice pressed him: “You would say that the Constitution requires that it be published and that these men die?”

Professor Bickel yielded, to the consternation of some of The Times’s allies. “I’m afraid,” he stated, “that my inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment.”

As a matter of litigation techniques, it was a crucial reply, stated David Rudenstine, a professor at the Benjamin N. Cardozo School of Law and the writer of “The Day the Presses Stopped,” a historical past of the case.

“I don’t think an advocate could say anything else,” Professor Rudenstine stated, “unless you really wanted to lose the case.”

Still, Professor Bickel’s response outraged the American Civil Liberties Union, which filed an uncommon transient that very same day disavowing Mr. Bickel’s reply. It stated Justice Stewart’s query “must be answered in a totally different manner” and that “the answer is, painfully but simply, that the right of a free people to determine its destiny has been, and should continue to be, paramount to any attempt by the government to impinge upon, erode or ultimately destroy the right of the people to know.”

Professor Bickel had made one other concession when he argued the case in the federal appeals court docket in New York. Asked for an instance of a authorities secret that might justify a previous restraint, he posited, presciently because it turned out, one wherein “the hydrogen bomb turns up.”

Eight years later, on the solely different event on which the federal authorities has sought a previous restraint on nationwide safety grounds, a federal judge in Wisconsin barred The Progressive journal from publishing an article known as “The H-bomb Secret,” which included detailed directions for making a hydrogen bomb.

While the attraction was pending, others printed comparable info and the authorities dropped its case.

As that case suggests, prior restraints that really hold info already in the fingers of the press from the public are arduous to perform. By the time the Supreme Court dominated in the Pentagon Papers case, greater than a dozen newspapers had printed components of them. These days, a whistle-blower like Daniel Ellsberg might skip the intermediaries fully and submit paperwork immediately on the web.

“In a contemporary context, the prohibition on prior restraints is almost irrelevant,” Professor Rudenstine stated.

The extra important constraint is the risk of prison prosecution after the truth, one left open by some of the justices in the majority in the 1971 determination.

According to a 1975 memoir by Whitney North Seymour Jr., who was the U.S. lawyer in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy lawyer common, prompt convening a grand jury in New York to contemplate prison costs in opposition to The Times. Mr. Seymour stated he refused. A grand jury was then convened in Boston, but it surely didn’t challenge an indictment.

So far, there have been no prosecutions of journalists in the United States for looking for or publishing categorised info, however the espionage legal guidelines on their face could be learn to forbid possession and publication of categorised info by the press.

One, enacted in 1917, prohibits anybody with unauthorized entry to paperwork or info regarding the nationwide protection from telling others. In the Pentagon Papers case, Justice Byron R. White, joined by Justice Stewart, stated “it seems undeniable that a newspaper” could be “vulnerable to prosecution” below the 1917 regulation.

But the regulation, as Harold Edgar and Benno C. Schmidt Jr. described it in a comprehensive 1973 article in the Columbia Law Review, is “in many respects incomprehensible” and “so sweeping as to be absurd.”

“If these statutes mean what they seem to say and are constitutional,” they wrote, “public speech in this country since World War II has been rife with criminality.”

At the similar time, there’s an virtually common consensus that the authorities classifies far an excessive amount of info. Erwin Griswold, a former dean of Harvard Law School who argued the case for the Nixon administration as U.S. solicitor common, agreed that the classification system was damaged.

“It quickly becomes apparent to any person who has considerable experience with classified material,” he wrote in a 1989 essay in The Washington Post, “that there is massive over-classification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”

That utilized, he wrote, to the Pentagon Papers themselves. “I have never seen any trace of a threat to the national security from the publication,” he wrote. “Indeed, I have never seen it even suggested that there was such an actual threat.”

The press’s victory in the Pentagon Papers case could have been incomplete. But a loss would have been devastating.

“What would be the law today if the case had come out differently?” Professor Rudenstine requested. “It’s very possible that there could have been a prosecution of The Times. That would have changed American law quite a lot.”

“The general thought,” he stated, “was that if you lost the prior restraint case that there was no chance of winning the criminal prosecution.” The reverse occurred, stated Lee C. Bollinger, the president of Columbia University and the different editor of “National Security, Leaks and Freedom of the Press.” “As a practical matter, the press and the government have arrived at the state of mind that there will not be prior restraints or subsequent prosecutions — that that would violate the spirit of the First Amendment,” he stated. “Apart from the Progressive case, the government has not gone after the press in either form.”

But he added that this was largely a product of mature lodging amongst accountable establishments, one which was in danger throughout the Donald Trump administration.

“The continuing viability of a fulsome Pentagon Papers doctrine does not apply in the context of a near-authoritarian government like the one we had,” he stated. “It’s those kinds of ambiguities about Pentagon Papers that makes the whole system much more vulnerable when you have a true threat to democracy.”



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