Keeping a free press free

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The U.S. Supreme Court in 1971 affirmed the role of a free press as a vital check against government corruption.

On June 13 of that year, The New York Times published the first in a series of stories on the history of U.S. involvement in Vietnam’s armed conflict. Based on an in-depth study conducted by the U.S. Department of Defense in 1967, the article began exposing how the American public and members of Congress had been misled by four presidential administrations.

Advisers to President Richard Nixon warned that additional stories on what became known as the Pentagon Papers could imperil our national security. This prompted the administration to attempt a disturbing and unprecedented measure: Stop the presses!

For the first time, the federal government sought prior restraint against a news organization in presenting information it possessed. Such a move can only be allowed if it could be shown that publication would create a “grave and irreparable” danger to the nation’s interests.

Daniel Ellsberg, a military analyst who had worked for the government, became disenchanted with the war in Vietnam. He understood that what the Pentagon was telling people about how the conflict was going did not match with what he knew to be occurring.

The lies being told had compounded over the decades. Ellsberg wanted Americans to read the truth about why we were involved in Vietnam.

He spent months copying the 47 volumes of the Pentagon Papers. He removed information he believed to compromise military operations so as to not put troops in jeopardy.

Ellsberg discussed the contents of the document with some members of Congress, but none of them wanted to make the information public. So he eventually gave the Pentagon Papers to The New York Times. An acquaintance who worked at The Washington Post contacted Ellsberg about the study, so he provided this newspaper with its own copy.

A few days after the initial article appeared in The New York Times, the Nixon administration filed a cease and desist order against any further publication. The paper had been prepared for this reaction, so court proceedings commenced to settle the issue. The Washington Post also was warned against publishing anything from the document.

The defense mounted by the two newspapers merged in the expedited case on its way to the Supreme Court, titled The New York Times v. United States. In a 6-3 decision issued June 30, 1971, the high court declared that the government had not met its burden to sustain its demand for prior restraint.

While the message was clear that the Nixon administration failed in its arguments, justices offered varying opinions on what this meant. This leaves aspects of the case open to interpretation.

But one opinion stood out among the others, that offered by Associate Justice Hugo Black. He considered himself an absolutist when it came to the First Amendment, and we are deeply indebted to his commitment to the constitutional principle of freedom of the press. In part, he wrote:

“In the First Amendment, the founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy. 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 forever free to censure the government. 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. 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. ... 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 government hopes to make ‘secure.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. 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 for our republic. 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.”

Fifty years ago today, Black and his fellow justices pushed back against a dangerous move by the government to stop news organizations from offering readers information it wanted to conceal. We appreciate the need to keep sensitive information from being made public, and news organizations have routinely and responsibly accommodated this concern.

But we’re a self-governing society, and we must know when government officials have lied to us. This is especially egregious when it results in the death of brave Americans who answer our nation’s call to arms.

As Black wrote, a misinformed citizenry is not secure; nor is it prepared to make wise decisions. We commend The New York Times and Washington Post for taking on this cause and making it possible for future generations of journalists to do their jobs. Serving as a watchdog over the government is a task we take seriously, and our ability to do this was strengthened by this court ruling half a century ago.

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(3) comments

rdsouth

In order for the press to get classified documents somebody must have betrayed a trust. That person should be responsible. If the reporter didn't sign into a security clearance, the reporter isn't betraying a trust, and thus cannot be considered to be morally wrong on account of the classification of the document alone. Now, if the effects of that wrong amount to harming the nation, that may be a different matter, and it's a judgment call, morally. Sometimes things are classified to protect a political interest, and if publishing something doesn't hurt the nation that's a sign it was one of those things. But again, the matter is completely different if a confidence is betrayed. Regardless of the real reason for classification, that is wrong. Now, lesser wrongs can be justified by higher ends, but we can't have a system in which people get to make consequentialistic decisions for themselves. For the greater good, there must be legal consequences for presuming. A violator of trust might be morally in the right, but that only fully takes effect when the violator of trust suffers legal consequences. If being a hero were consequence free, it wouldn't be heroic.

KRobbins

Only a free and unrestrained press can effectively expose deception in government.

Thank God for Justice Black and the Supreme Court. The free press has been indispensable the last 4 years with the constant lies and attacks on it. The truth about Trump’s incompetence, narcissism and cruelty is going to continue to come out, too. There’s at least a trio of books due out soon. Not the least of them is from Michael Bender at the Wall Street Journal. It’s nice that even media sources on the right can do great journalism.

The movie and television versions of the Trump presidency are just going to be lit.

Holmes

This isn’t 1971, in 2021 the United States ranks last in media trust — at 29% — among 92,000 news consumers surveyed in 46 countries. Hmmm, who would have predicted that?

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