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Welcome to Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this new series, First Amendment expert Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court—looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom.
In this seventh episode, we dive into the Espionage Act and the case of the Pentagon Papers.
Cases referenced in this episode:
Transcript:
This is Michele Goodwin, executive producer of Ms. Studios and Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom.
0:00:44
We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.And now, here’s your host Stephen Rohde, with our episode: The Pentagon Papers.
0:00:55 Stephen Rohde:
On June 13, 1971, the front page of the New York Times Sunday edition carried an article with the headline: “Vietnam Archive, Pentagon study traces three decades of growing U.S. involvement.” It was based on what would become known as the Pentagon Papers. Five days later, on June 18, the Washington Post began publishing its own series of articles based upon the Pentagon Papers.
0:01:28
At that time, in 1971, the United States had been engaged in an undeclared war with North Vietnam for six years. About 58 thousand American soldiers had died and the government was facing widespread dissent across the United States. Four years earlier in 1967, Secretary of Defense Robert S. McNamara had commissioned a “massive, top-secret history” of the United States’ role in Indo-China.
0:02:02
By 1971, Daniel Ellsberg, who had helped to produce the report, had become disillusioned with what the U.S. was doing in Vietnam. He believed the American people had a right to know how their country had gotten into this war in the first place. After unsuccessfully trying to get the attention of elected officials, Ellsberg allowed New York Times reporter Neil Sheehan to read 43 volumes of the 47-volume, 7-thousand-page report.
0:02:38
Sheehan surreptitiously copied them against Ellsberg’s wishes and took them to the Times. When the Times and the Post published articles based on the Pentagon Papers President Richard Nixon was furious. He told aides he wanted to destroy the Times. His national security advisor, Henry Kissinger, called Ellsberg the most dangerous man in America.
0:03:09
The Department of Justice immediately sought restraining orders to prevent the newspapers from publishing any further articles based on the Pentagon Papers. The government relied on the Espionage Act of 1917 which made it a crime for any unauthorized person to possess information relating to the national defense., But the statute did not authorize the government to enjoin the publication of such information.
0:03:41
U.S. District Judge Murray Gurfein heard arguments in the federal court in New York. The government’s lawyer argued that “serious injuries are being inflicted on our foreign relations to the benefit of other nations opposed to our foreign relations, to the benefit of other nations opposed to our form of government.” He asked for a temporary restraining order.
0:04:09
Judge Gurfein called all counsel into his chambers and asked the attorneys for the Times to voluntarily cease publication of the Pentagon Papers until he could review them. An attorney for the Times told Judge Gurfein that if he granted the government’s request he would be the first judge in American history to enter a prior restraint enjoining the publication of important news.
0:04:39
The Times refused to voluntarily cease publication. Judge Gurfein granted the temporary restraining order and set a hearing for a preliminary injunction for June 18. After hearing further argument on June 19, Judge Gurfein rejected the administration’s request for a permanent injunction, writing that “the security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”
0:05:30
However, the court of appeals, after an en banc hearing, granted an injunction until June 25. The day the Washington Post began publishing its own series of articles based on the Pentagon Papers. The government asked the newspaper to voluntarily cease publication. When the paper also refused, the government sought an injunction in the federal court in the District of Columbia but Judge Gerhard Gesell rejected the government’s request, as did the court of appeals for the D.C. Circuit.
0:06:09
A few days later, on June 25 and 26, 1971, the Supreme Court heard oral arguments in both cases. The issue before the court was whether there was a sufficient justification for what the law calls a prior restraint. Generally, there are two forms of censorship. The one most people think of is when the government punishes speech after it has been spoken, printed, broadcast, or posted.
0:06:43
The other, referred to as a prior restraint, covers instances in which the government, in advance, prevents speech from being spoken, printed, broadcast, or posted, or only with the government’s prior approval. Under the English licensing system, which existed in 1695, all printing presses and printers were licensed, and nothing could be published without prior approval of the state or church authorities.
0:07:15
The Supreme Court has written that “the special vice of a prior restraint is that communications will be suppressed before any adequate determination that it is unprotected by the First Amendment.” In other words, a prior restraint allows government officials to block certain speech from ever seeing the light of day, even before any court can decide whether that speech is, in fact, protected by the First Amendment.
0:08:03
The U.S. Supreme Court first dealt with a prior restraint in 1931, in the case of Near v. Minnesota. A narrow 5-to-4 majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated something found to be obscene, lewd, and lascivious, or malicious, scandalous, or defamatory. In that case, an injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.
0:08:43
The majority deemed it “the essence of censorship that in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.” Writing for the majority in the Near case, Chief Justice Charles Evans Hughes said that liberty of the press was essential to scrutinize the public conduct of public officials.
0:09:13
What he called “a vigilant and courageous press” was necessary to deal with “malfeasance and corruption in government.” “The mere fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.” Instead, “subsequent punishment for such abuses as may exist in the appropriate remedy consistent with constitutional privilege.”
0:09:51
Citing the prohibition on prior restraint, the Supreme Court would later strike down loosely drawn statutes and ordinances requiring licenses to hold meetings or parades or to distribute literature where officials had uncontrolled discretion whether or not to issue a permit. On June 30, 1971, only four days after oral arguments, the Supreme Court decided New York Times v. United States.
0:10:26
With 6 justices concurring and 3 dissenting, the court upheld the right of the New York Times and the Washington Post to publish the Pentagon Papers. The court issued a brief unsigned per curiam opinion. It first stated that “any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity,” and that the government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”
0:11:06
Since the government had failed to carry that burden of proof, it could not enjoin newspapers from publishing the Pentagon Papers. Subsequently, six justices issued separate opinions. Justice Hugo Black wrote an impassioned opinion that elaborated on his broad view of the First Amendment.
0:11:29
He complained that “every moment, continuance of the injunctions amounts to a flagrant, indefensible, and continuing violation of the First Amendment. The press was to serve the governed, not the governors. The government’s power to censor the press was abolished so that the press would remain free from censure by the government.
0:11:52
The press was protected so that it could bear the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government, and paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
0:12:20
He continued “to find that the president has inherent power to halt the publication of news would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Constitution and government hopes to make secure. The word security is a broad, vague generality, whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security.
0:12:58
The framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly, should not be abridged.”
0:13:19
Justice William J. Brennan wrote separately to explain that the publication of the documents did not qualify as one of the exceptions to the First Amendment established in Near v. Minnesota. Justices Potter Stewart and Byron R. White agreed that it is the responsibility of the executive branch to ensure national security through the protection of its information.
0:13:46
However, in areas of national defense and international affairs, the President possesses great constitutional independence that is virtually unchecked by the legislative and judicial branches. In the absence of governmental checks and balances, wrote Justice Stewart, “the only effective restraint upon executive policy and power in these two areas may lie in an enlightened citizenry, in an informed and critical public opinion, which alone can here protect the values of democratic government.”
0:14:23
Justice Thurgood Marshall argued that the term “national security” was too broad to legitimize prior restraint and also argued that it is not the court’s job to create laws where Congress had not spoken. Chief Justice Warren E. Burger wrote a dissent in which Justice John M. Harlan and Justice Harry A. Blackmun joined. The dissent argued that when “the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government, there should be a detailed study of the effects of these actions.”
0:15:05
He argued that in the haste of the proceedings and given the size of the documents, the court was unable to gather enough information to make a decision. He also argued that the Times should’ve discussed possible societal repercussions with the government prior to publishing the material.
0:15:25
In their Comprehensive History of the Espionage Act of 1917, Ralph Engelman and Carey Shenkman acknowledge that the Pentagon Papers’ decision has gained “a reputation of mythic proportions as a great First Amendment triumph,” but they also cite constitutional scholars who consider the case a “First Amendment fizzle,” and a “loaded gun, pointed at newspapers and reporters who publish foreign policy and defense secrets.”
0:16:01
The six disparate opinions issued by the court left open the possibility of post-publication criminal prosecution under the Espionage Act, not only against Ellsberg and Russo, his colleague, but also the newspapers which published the leaked information and documents. On June 28, Ellsberg and his colleague, Anthony Russo, were indicted under the Espionage Act by a grand jury in Los Angeles.
0:16:35
What is not as well-known is that the Nixon Justice Department, under Attorney General John Mitchell, convened two successive Boston Grand Juries to pursue criminal charges of unauthorized transmission of national defense information and theft of government property in connection with the publication of the Pentagon Papers.
0:17:00
The grand juries were reportedly considering indictments against the Times and other newspapers that had published the Pentagon Papers, as well as Beacon Press, which was planning to publish a book-length edition of the documents. But in 1972, the government precipitously disbanded the Boston Grand Jury reportedly so as not to interfere with the trial of Ellsberg and Russo taking place in Los Angeles.
0:17:32
Meanwhile, due to the revelation that the government had wiretapped a conversation involving a member of the Ellsberg and Russo legal team, the judge granted a mistrial and impaneled a new jury, but all charges were later dismissed when prosecutors revealed that G. Gordon Liddy and Howard Hunt, of the infamous Nixon Plumbers unit, had arranged a break-in of Ellsberg’s psychiatrist’s office.
0:18:02
New York Times v. The United States is generally considered a victory for a broad reading of the First Amendment’s prohibition against prior restraints. But the Espionage Act is still on the books and has been used against a variety of whistleblowers. Despite the Nixon Administration’s intimidation of the press, there has been no definitive Supreme Court ruling on whether the espionage could be constitutionally used against newspapers and book publishers which publish leaked documents and information.
0:18:58
Today, the publisher of WikiLeaks, Julian Assange, is facing 175 years under the Espionage Act. It remains to be seen what the future of the Espionage is in the United States Supreme Court and whether New York Times v. United States, the Pentagon Papers case, will prevail.
0:19:26
Thank you so much for listening to this episode of Speaking Freely. I want to thank Allison Whelan, my producer, and I want to welcome you back to future episodes of Speaking Freely: a First Amendment Podcast.