Home » Perspective » Deborah Fisher: Pentagon Papers movie wins because press fought for public’s right to know

By Deborah Fisher, published on January 26, 2018

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The movie is about how the Washington Post then got copies of the documents and decided to publish in the face of the order against the Times and at great legal and financial risk.

The obvious theme of the movie is freedom of the press. But the more powerful relevance of the eventual Supreme Court ruling against the Nixon administration has to do with the larger message of liberty of the American people which is inextricably intertwined.

Press freedom is not based on any particular moral merits of a newspaper publisher or the qualities of whatever we might define as “the press” today. It is based upon the idea that the American people have a right to know what their government is doing and a right to communicate — widely through the press — about their government without the threat of being sent to prison.

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy,” wrote Justice Hugo L. Black in his concurring opinion in New York Times v. United States. “The press was to serve the governed, not the governors.”

Whatever we might think of the news climate today, I think most of us would be wary of giving up the freedom of “the governed” to gather, receive and communicate information about our government.

Classified documents 

The Nixon administration had argued that if the newspapers continued to publish the Pentagon Papers, which had been commissioned by Secretary of Defense Robert McNamara and officially titled “History of U.S. Decision-Making in Vietnam, 1945-68,” our national security would be at risk. Officials argued that the president had the constitutional power as commander-in-chief to stop the newspapers from publishing under the Espionage Act of 1917.

The Supreme Court rejected the arguments, saying that “any system of prior restraints on the press comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” It had not met that burden, the justices ruled.

The decision reinforced the role of the press as “watchdog” that could not be shut down by the government for publishing something about the government or government officials that might be critical, even damning.

A few months after the Supreme Court’s affirmation, a senator from Alaska entered 4,100 pages of the Pentagon Papers into the congressional record, which were eventually published in a book. Charges against Daniel Ellsberg, who leaked the documents to the press, were dismissed by a federal judge in 1973.

Since then, questions about “over-classification” of government documents have persisted; the number of government documents labeled as “classified” grew by 60 percent from 2001 to 2003 after the Sept. 11 attacks. Debates continue – both at the federal and state levels — about what should be kept confidential in the name of national or state security, and, more often, for other reasons.

Although the First Amendment prohibits prior restraint, it does not mean a publisher can’t be liable for what they do publish, which is why publishing documents classified top secret for national security continues to be rare. But it has happened.

Edward Snowden came to the conclusion in 2013, much like Ellsberg in 1971, that the public had a right to know about the secret expansion of mass government surveillance programs, including of phone and internet records. His leak of documents to the press of classified information opened the public’s eyes to how government conducts its surveillance. There was no prosecution of the press for what they published, but Snowden faces a trial and imprisonment if he ever returns to U.S. soil.

In the Pentagon Papers case, the justices agreed on the final result, but as Steve Robertson notes in The First Amendment Encyclopedia, the majority “splintered” in their constitutional reasoning as to why.

“On one extreme, Justice Hugo L. Black argued that ‘only a free and unrestrained press can effectively expose deception in government’ and rejected any prior restraints on the press. Justice Byron R. White … refused to grant censorship authority to the executive branch without the authorization of Congress.

“Justice William J. Brennan Jr., referring to Justice Oliver Wendell Holmes’s clear and present danger test, concluded that prior censorship would be permissible in certain circumstances, but the vague, nonspecific claims of harm to national security made in this case were insufficient to justify prior restraint. Justice William O. Douglas generally agreed with Justice Black and also argued that the law the government used to support its case, the Espionage Act of 1917, did not support the government’s case. Justices Potter Stewart and Thurgood Marshall argued separately that in the absence of specific guidance by Congress, the Court should not grant the executive broad censorship power.”

The movie reminds us of an important moment in history.

There was applause in the full Franklin, Tenn., theater where I sat. Perhaps it was for the sparkiness of the Washington Post staff, or for the courage and resilience of a woman publisher finding her leadership in a man’s world.

But I also believe the applause showed how much the public values their right to know and that in 1971, when the press stood up to the powerful on this very point, America got it right.


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