In a hallway of The New York Times offices, there is a framed copy of the Telex traffic between the Justice Department and The Times from June 1971 when the government demanded that the paper cease publishing the Pentagon Papers. Two installments had already appeared by then. Sent from an FBI Telex machine, the message was blunt: “FURTHER PUBLICATION OF INFORMATION OF THIS CHARACTER WILL CAUSE IRREPARABLE INJURY TO THE DEFENSE INTERESTS OF THE UNITED STATES.”
Dutifully, someone at The Times responded: “RECED WELL THANKS FBI.”
The government replied quickly: “THIS IS NOT THE FBI. THIS IS THE DEPARTMENT OF JUSTICE, D.C. WE ARE USING THE FBI’S MACHINE.”
Further acknowledgement of mutual receipt follows, and then at the very bottom of the page is a cryptic but beautifully apt sentence, author unknown for reasons unknown: “I AM SPEECHLESS.”
What began in low-level clerical confusion quickly became an unprecedented constitutional crisis that 16 days later gave rise to the Supreme Court’s decision in New York Times Company v. United States denying the government’s bid to enjoin publication. Handed down 45 years ago today, no one can doubt the importance of that decision in the era of WikiLeaks and Snowden. In 2010, on the eve of the first of the WikiLeaks stories, Times reporters did not hesitate to seek comment from the Obama administration, while our colleagues at The Guardian asked we not mention that they would be publishing from the same materials, fearful that the English authorities would dash into court for an injunction.
But to go back now and re-read the Pentagon Papers decision — three broad-brush unsigned paragraphs, followed by six concurrences and three dissents — is to be reminded how little got decided that day and how much the decision was about things other than the First Amendment.
Consider Justice Brennan, the architect of Times v. Sullivan, that other pillar of press freedom. In Sullivan, the First Amendment rhetoric soars: “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
But the Brennan of the Pentagon Papers begins his concurrence with a caveat that speaks to a press that might not just be inhibited but enjoined: “I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government.”
Brennan of course was right. The per curiam decision merely cites the language from an earlier prior restraint case — “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” — and then concludes that the government had failed to meet its burden. No word on what that burden might be, or how the government failed to meet it. No discussion of the national security concerns that animated the government’s case. The monumental showdown between the press and the government gets decided on words drawn from Bantam Books v. Sullivan, a case devoted to the weighty issue of whether the Rhode Island Commission to Encourage Morality in Youth had the power to ban naughty magazines and books.
The Pentagon Papers decision was no First Amendment manifesto, no full-throated endorsement of Blackstone’s foundational idea that press freedom is first and foremost about the doctrine of no prior restraints. It is no Times v. Sullivan. Presented with a pristine opportunity to once again speak passionately about press freedom, the justices repeatedly prefer to change the subject.
Several chose to find the whole dispute to actually be a separation-of-powers issue — whether the court could act when Congress had not authorized the injunctions being sought and whether under the Constitution it was the court’s duty or the executive’s to protect secrets. None spoke more clearly to that than Justice Marshall. The Justice Department may have framed the case as pitting the First Amendment against the government’s authority to halt publications in defense of the nation, but that was not the case Marshall saw before him. For him, it was all about separation of powers, and the absence of any congressional authority. “It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.” Justice White and Justice Stewart followed suit, spinning out their own theories on the proper roles of each branch in protecting secrets.
For Justice White there were also pragmatic concerns: “publication has already begun and a substantial part of the threatened damage has already occurred.” Not that he was particularly happy about any of it. He laid out in detail the case for prosecuting the press post-publication under Section 793 and other sections of the Espionage Act. (The Justice Department had specifically raised Section 793 in its Telex to The Times.)
Even Justice Douglas, the great defender of First Amendment freedom, felt it necessary to parse the Espionage Act to discern whether Congress intended the statute to reach publishers. Three provisions did, he concluded, but none was relevant to the case.
To be sure, no justice, in concurrence or dissent, thought that an injunction should be easily granted. Brennan would have held the government to showing that the publication would “inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” But only Justice Black fully embraced the “no prior restraint” principle that had long been seen as the core First Amendment value: “Every moment’s continuance of the injunction … amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”
Perhaps nothing in the decision reads more strangely 45 years later than a bit of Chief Justice Burger’s dissent tongue-lashing The Times — for not reporting its source to the police. “To me,” he wrote, “it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought — perhaps naively — was to report forthwith, to responsible public officers.”
The real question 45 years later is whether it matters that the Supreme Court did not speak more clearly about prior restraints. The case was decided in what might be thought of as Media Landscape 1.0, where journalism was dominated by a handful of large powerful media institutions that operated within established professional norms and in a certain symbiotic relationship with government. In today’s Media Landscape 2.0, where none of that is true and digital publishers can be powerful disclosers of secrets, it is possible to imagine a future court cherry-picking the Pentagon Papers concurrences and coming to a decidedly different result.
But that is not a first-level agenda item for those of us concerned about undue government secrecy. Much about the current legal framework in which national security reporting is done underserves democracy. The executive’s power to classify remains largely unchecked. Whistleblowers lack basic legal protections even when their leaks serve the greater good. The right of reporters to shield confidential sources has been stripped. The Freedom of Information Act is the weakest of legal swords. And questions remain about whether the government could prosecute journalists for violating the Espionage Act à la Justice White’s concurrence.
The one bright exception to all of that is the consensus that has emerged over these past 45 years that the press cannot be stopped from publishing secrets. That is what the Pentagon Papers case has come to stand for, no matter what it actually said.
It doesn’t really matter that so much was left unclear. It was the FBI’s machine. It was the Department of Justice, D.C. We were not rendered speechless.