Publishing leaked materials: the Pentagon Papers case

By Kristopher A. Nelson
in July 2017

1100 words / 5 min.
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Within a month of taking office, President Donald Trump announced his desire to go after “leakers” who have helped embroil his administration in controversy. He also declared many traditional news outlets to be “enem[ies] of the American People!” What does this mean for those who publish such material?

Please note that this post is from 2017. Evaluate with care and in light of later events.

Within a month of taking office, President Donald Trump announced his desire to go after “leakers” who have helped embroil his administration in controversy. He also declared many traditional news outlets to be “enem[ies] of the American People!” What does this mean for those who publish such material? The so-called “Pentagon Papers case” from 1971 suggests newspaper publishers have a strong defense against government interference (those who do the leaking are on much shakier ground — but it’s complicated).

168 days after inaugurating the new president, relationships with the press are have not improved, although, as far as I know, the Administration has not yet attempted to use the courts to directly suppress stories.

Nonetheless, the focus on “leaks” and the attacks on the press suggest that cases arising out of the Nixon Watergate scandal, in which the Supreme Court offered a vigorous defense of the rights of newspapers to publish even “leaked” material, are still critical legal precedent that news organizations continue to rely on today.

The story of the legal precedent that still protects news organizations today began with the so-called “Pentagon Papers,” provided by Daniel Ellsberg as “leaked” documents to various newspapers in the early 1970s.

The Pentagon Papers

Secretary of Defense Robert McNamara commissioned the Pentagon Papers, also known as the “Report of the Office of the Secretary of Defense Vietnam Task Force,” in 1967. They laid out the context of Vietnam and the region as a whole and the activities of the United States there, including instances where the government had lied to the American people about its actions.

Believing that the American people deserved to know the truth about the ongoing war in Vietnam, Daniel Ellsberg, a RAND defense analyst, provided the documents to various newspapers beginning in 1971. (He was later charged under the Espionage Act of 1917; a federal judge dismissed the charges against him in 1973.)

The New York Times published its first article in a planned series in 1971. In response, Nixon Administration moved quickly to obtain a federal court injunction blocking further publication of the materials by the Times or the Washington Post, which was also planning a series of articles.

New York Times Co. v. United States, 403 U.S. 713 (1971)

The Nixon Administration argued in federal court that publication of the classified report would undermine national security and threaten the lives of American soldiers. Though doubtful of the government position, lower courts granted temporary injunctions against immediate publication by the Times and the Post; in June of 1971, the United States Supreme Court ruled 6-3 that the government had not shown that the potential harms publication might cause outweighed the strong liberty interests protected by the First Amendment.

The majority decision

The core of the majority decision simply upheld lower-court decisions that the government had not met the high burden required to restrain publication by the press, as described in three prior Supreme Court cases:

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Concurring opinions

Several concurring opinions were in many ways more important for later cases involving the First Amendment. All elaborated in different ways on the importance of press freedoms and the role of the press to check the power of the executive branch.

Dissenting opinions

The three dissenters generally argued that proceedings had moved too fast for the courts to evaluate the potential impact of such a vast amount of material, that the government ought to have been allowed to be more involved in exactly what was published and when, and that, potentially, that the Court ought to be deferring to Congress and the President on the issue of classified materials.

The take-away

As I noted in 2010 regarding WikiLeaks, “leaks” of sensitive government material are potentially problematic. Many publications may proceed to publish materials without enough knowledge to evaluate the potential harm they might do to people (putting the lives of soldiers at risk, for example), to delicate diplomatic negotiations, or to the often messy business of actually governing in a democracy (reducing the desire of some to ever compromise, for fear of details leaking to their political opponents).

But while protecting against these harms is a real concern, and in 2017 might well be an argument in favor of a responsible press (whatever exactly that might mean), several justices responding to the issues in the Pentagon Papers case captured the absolutely critical importance in a democracy to protecting the right of the press to public despite these potential harms.

Justice Douglas thus argued:

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. … Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate.

And Justice Black added:

The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. … The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.

Whether the current Supreme Court agrees with these very strong statements in support of the First Amendment remains to be seen, particularly in a time when news organizations come in many forms, from long-standing, traditional news organizations like The Wall Street Journal and The New York Times, to newer television networks like CNN and Fox News, and even “blog” or “alt-right” online-only publications like Breitbart.

And, of course, whatever the rhetoric might suggest, these cases only protect the publishers and the journalists, not the “leakers” themselves. Daniel Ellsberg was charged, after all.

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