I can say, as a matter of first principle, that unauthorized disclosure of classified information [by the press] has actually led to the death of individuals [who would not have been killed] had this information not been inappropriately put into the public domain.
Michael Hayden, Director of the CIA, New York Daily News, December 1, 2006
What we’re really looking at is the criminalization of investigative reporting in this country, and we’re on a very slippery slope that we’re already starting to slide down.
Brian Ross, investigative reporter, ABC News, PEN Press Freedom Petition to Congress, National Press Club, September 28, 2006
The Government’s power to censor the press was abolished . . . by the Founding Fathers . . . 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.
Supreme Court Justice Hugo Black, New York Times Company v. United States (1971), “Pentagon Papers” case.
In the more than half a century I’ve been a reporter, there has never been as systematic an operation to intimidate and then silence the press as is now taking place under the Bush-Cheney-Gonzales administration. Along with a sharp increase in subpoenas for reporters’ notes and telephone records, there are threats of prosecution under the Espionage Act of 1917 for reporting such classified information as the president’s secret authorization of the National Security Agency’s warrantless secret authorization of the National Security Agency’s warrantless eavesdropping on us.
Adding to the shroud of secrecy, Alberto Gonzales’s Justice Department has convinced a number of judges to close down cases before they’re heard in a courtroom, lest “state secrets” concerning national security be revealed by the press to the public.
Paul McMasters, the First Amendment Center’s ombudsman, makes the necessary point that “while the First Amendment protects the press from overt government censorship, it can’t fully protect the press from full-time government hostility or part-time citizen apathy.”
Nor can the First Amendment prevent certain corporate owners of newspapers, radio and television networks, and other media from ordering reporters and editors to give up the information the government wants. Those who refuse are left to find other legal aid, and possibly other jobs.
A number of us staunchly pledge that we’ll go to prison rather than betray our sources and become agents for the government, but there are always—as some reporters have found out—enough cells to accommodate principled followers of James Madison.
It is time to remind the citizenry and Congress—and the press—of a crucial Supreme Court case, decided in wartime, that makes unmistakably clear how and why the First Amendment to the Constitution mandates that there “shall [be] no law . . . abridging freedom of speech, or of the press.”
Usually referred to as the 1971 “Pentagon Papers” case—in the law books, it’s formally known as New York Times Company v. United Sates because the Times, despite enormous pressure from the Nixon administration, decided—after a fierce internal debate at the paper involving the Times‘ lawyers—to print a more-than-top-secret study commissioned by Defense Secretary Robert McNamara. Stolen by a former Defense Department and RAND Corporation officer, Daniel Ellsberg—a patriotic constitutionalist—the study revealed that vital decisions about the war in Vietnam had been made at the highest levels in ways that deliberately deceived the American people.
The Washington Post had also been given a set of the “Pentagon Papers,” and Attorney General John Mitchell—the Dick Cheney of the Nixon administration—warned the Post‘s owner, Katharine Graham, that she’d get “her tit caught in a big fat wringer” if she violated national security in time of war by printing the classified report. Katharine Graham was not intimidated.
The Times, however, had hesitated. As noted in Oxford University Press’s
First Freedoms: A Documentary History of First Amendment Rights in America (2006), “the newspaper’s [ law firm] warned that publishing classified documents might violate federal espionage laws.”
At that point, The Village Voice and this columnist silently and unknowingly became a factor in the Times’ decision to publish the “Pentagon Papers,” leading to the subsequent Supreme Court decision. I was then writing what was essentially a press column for the Voice and got a call from someone I knew at the Times.
“I know you don’t run blind items,” the person said, “but this is very important. Somewhere in your next column, just say that “a secret debate is going on at the Times in an undisclosed hotel room. I can’t tell you any more than that.” I ran the blind item.
Years later, I was called by the respected Times foreign correspondent, and then an editor, Harrison Salisbury. He was writing a book about the Times, including a section on the “Pentagon Papers.” The blind item in my Voice column had had an effect, and would I tell him who called me?
“Mr. Salisbury,” I said, “you surely know that as a reporter, I can’t give up a source, even if it’s not the government that demands it.” He understood; the conversation ended.
I had found that my first caller—and others at the Times pressing for immediate publication of the “Pentagon Papers”—figured that a blind item in the Voice might lead the decision makers to think we knew enough to soon break the story of the Times‘ hesitation, and they didn’t want that disclosed.
I’m convinced Times publisher Arthur Sulzberger would have anyway fired the paper’s lawyers for objecting to publication, as he did, and gone ahead to publish the classified report had the blind item never appeared. He knew the historic importance of the First Amendment test he was facing. All the Voice did was speed up the printing on June 13, 1971, of the front-page story of what Ellsberg had revealed about the government’s lies.
Next week: a much fiercer debate at the Supreme Court resulting in a decision only 17 days after the first installment of the “Pentagon Papers” appeared in the Times—and how that decision tests all of us now in the last years of an administration determined to overturn that Supreme Court’s rescue of the First Amendment.