How Free Can the Press Be?by Randall P. Bezanson
The First Amendment to the Constitution states that Congress shall make no law abridging the freedom of the press, but the definitions of "press," of "freedom," and even of "abridgment" have evolved by means of judicial rulings on cases concerning the limits and purposes of press freedoms. _x000B__x000B_In How Free Can the Press Be? Randall P. Bezanson explores the changes in understanding of press freedom in America by discussing in depth nine of the most pivotal and provocative First Amendment cases in U.S. judicial history. These cases were argued before the U.S. Supreme Court, state Supreme Courts, and even a local circuit court, and concerned matters ranging from The New York Times's publication of the Pentagon Papers to Hugo Zacchini, the human cannonball who claimed television broadcasts of his act threatened his livelihood. Other cases include a politician blackballed by the Miami Herald and prevented from responding in its pages, the Pittsburgh Press arguing it had the right to employ gender-based column headings in its classified ads section, and the victim of a crime suing the Des Moines Register over that paper's publication of intimate details, including the victim's name. Each case resulted in a ruling that refined or reshaped judicial definition of the limits of press freedom._x000B__x000B_Does the First Amendment give the press a special position under the law? Is editorial judgment a cornerstone of the press? Does the press have a duty to publish truth and fact, to present both sides of a story, to respect the privacy of individuals, to obtain its information through legally acceptable means? How does press freedom weigh against national security? Bezanson addresses these and other questions, examining the arguments on both sides, and using these landmark cases as a springboard for a wider discussion of the meaning and limits of press freedom.
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How Free Can the Press Be?
By RANDALL P. BEZANSON
UNIVERSITY OF ILLINOIS PRESSCopyright © 2003 Board of Trustees of the University of Illinois
All rights reserved.
The Purpose of Press Freedom
Why does the First Amendment guarantee "the freedom of the press"? Is the press's freedom protected as an end in itself, a core principle of liberty? Or is the press's freedom a means to a larger end? Is the press free because its freedom is an essential ingredient of the constitutional order of things, a means by which people can obtain information from sources outside the formal channels of government and its instrumentalities? Does the press's freedom consist, at its core, of independence from government, an independence that, ironically, is necessary to the functioning of government under the Constitution?
The central function of the press is most evident when the press discloses information about government, especially information that the government wishes to keep secret. It is in just such cases, however, that the risks presented by press freedom are the greatest. It is clear that for the press to perform its function of checking government power, it must be free to disclose information about government to the democratic polity. The government's motives for secrecy are not always benign. They are often Machiavellian—politically inspired and self-serving. Yet not all government claims of secrecy are of this type. There are legitimate needs for government secrecy—protection of personal privacy, candid discussion in the making of government decisions, protection of national security. And there are significant harms that can flow from disclosure of such secrets.
Does the First Amendment mean that the press must always be free to publish what it wants, no matter the consequences? Is press freedom like a game in which the government is allowed to do everything it can to protect against the leaking of its secrets, but if government slips up and the press gets the information, there is nothing that can be done, no matter what the consequences? Or is press freedom instead less than absolute? Do the limits of the press's freedom to publish depend on a balance struck between the purposes served by press freedom and the importance of information to the public, on the one hand, and the harms that may follow disclosure of secret information, on the other?
It is the Supreme Court's answers to these questions and the resulting rules of press freedom that give life and shape to the central premises of freedom of the press under the First Amendment. Nowhere are these questions more starkly presented or more thoroughly considered than in the famous case of New York Times Co. v. United States, the Pentagon Papers case.
Freedom to Publish New York Times Co. v. United States 403 U.S. 713 (1971) (Pentagon Papers Case)
Suppose an enterprising reporter gets hold of a highly sensitive government document alerting the Attorney General and the head of Homeland Security to an imminent terrorist act in a particular city at a known location. The document contains detailed information about the predicted attack, including sources and methods by which the information was obtained. The document specifically recommends that no public announcement of the impending attack be made so that the government can interdict it, thereby apprehending the perpetrators and hopefully obtaining critical information from them about other attacks and the persons, organizations, and governments that are sponsoring the attack.
Assume further that the newspaper for which the reporter works, having decided that the document is genuine and that the reporter's possession of it is legal, decides to publish the document as part of a story on the impending terrorist attack, the probable loss of life, and the huge risk the government is taking in trying to interdict the attack rather than to warn its citizens against it in advance. There is little doubt that the newspaper's decision amounts to constitutionally protected editorial judgment. It is likewise clear that no law of the United States makes the story illegal.
Now assume that the Attorney General and the President of the United States learn of the reporter's possession of the document. They ask the newspaper not to publish it. The paper refuses. So the President decides to seek an immediate injunction against publication on grounds that the document's disclosure will compromise an ongoing law enforcement operation and, in the longer term, will disclose information about methods and sources that will seriously undermine the nation's ability to protect its homeland security.
Does the First Amendment prohibit the government from obtaining such an injunction? Is the newspaper's editorial decision an instance of the press's absolute freedom to publish, irrespective of the consequences?
In the lore of the First Amendment, the controversy over publication of the Pentagon Papers is emblematic of freedom of the press. The case tested the outer limits of the press's freedom to decide what to publish as news, to decide what people should be able to read or hear, and to weigh the harms of publication against the benefits. Does the press's freedom leave no place for a democratically elected government to make and enforce such choices?
If so, what assumptions underlie such a strong preference for the press's power and such a strong distrust of government power? Does press freedom rest on the assumption that private choices, even by private corporations (or perhaps especially by them), are better than public ones made by elected or democratically responsible individuals? Does press freedom rest on an assumption that the press's decisions will be selfless and public-spirited, whereas government choices will be selfish and motivated only by a desire to possess and retain power?
The Pentagon Papers case required two great American newspapers, the New York Times and the Washington Post, to argue that they should be the final judge of the risks and benefits of publishing secret information, weighing the risk of soldiers' deaths and delay of the war's end against the advantages of public knowledge about the conduct of the war. Indeed, the Times and the Post had to argue that they were better able to weigh the risks than the government itself, which was afflicted by the myopia of war and the temptations of political self-protection.
Is this what the First Amendment's freedom of the press means?
* * *
The Pentagon Papers case, as it has come to be called, arose in the early 1970s, during a time when the Vietnam War was raging and distrust of government was rising dangerously. The early stages of peace talks had begun, but soldiers were still dying in the field. Diplomacy was working overtime, struggling to manage a delicate and complex international situation and to find and build on openings for peace or a diplomatic resolution—or, at least, a resolution that might be called a "just peace," even if it was not. The diplomacy depended very much on secrecy, on intelligence, and on subtlety in foreign relations. Diplomacy's success would decide the fate of soldiers and citizens in Vietnam, for each day saved in the quest for peace could be counted in lives not sacrificed.
During the ceremonies proclaiming Vietnam's independence on September 2, 1945, U.S. Army officers stood on the dais with Ho Chi Minh and other dignitaries, marking the beginnings of what would be a long and complicated relationship with the Asian country. Americans would first oppose France's attempts to regain control of Vietnam, but then, as the United States became increasingly concerned about the spread of communism in China, American opposition turned to support. The United States would eventually spend 2.6 billion dollars helping France's futile attempts to retain control of Vietnam. Talks between France and Vietnam began in Geneva on May 8, 1954. The resulting agreement to partition Vietnam was supposed to lead to nationwide elections. Instead, it led to war.
By early 1956, the United States had taken over the training of the South Vietnamese army from the French. American advisers were unaware of how deeply the South Vietnamese leader, Ngo Dihn Diem, was resented by the Vietnamese people until civil war broke out in the early 1960s. After President John F. Kennedy's election, American commitments in Vietnam increased to one hundred advisers and four hundred special forces troops to train Vietnamese soldiers. By the end of 1962, the number of men had increased to more than nine thousand.
President Lyndon B. Johnson inherited a morass of misinformation and misunderstanding. He would later say, "I knew from the start that I was bound to be crucified either way I moved. If I left the woman I really loved—the Great Society—in order to get involved with that bitch of a war on the other side of the world, then I would lose everything at home. But if I left that war and let the Communists take over South Vietnam, I would be seen as a coward, and [it would be] impossible to accomplish anything for anybody anywhere on the entire globe."
Johnson ordered top-secret raids against bridges, railroads, and other installations in North Vietnam. The North Vietnamese responded with increased military action, including, on August 2, 1964, firing on the USS Maddox in the Gulf of Tonkin. In response, Congress passed the Gulf of Tonkin Resolution, authorizing President Johnson to take "all necessary measures to repel any armed attacks against the forces of the United States." As the war escalated, Johnson's Secretary of Defense, Robert McNamara, became worried that the war was "acquiring a momentum of its own that must be stopped." He urged Johnson to limit troop increases, to work toward a negotiated settlement, and to impose stringent reforms on the government of Saigon.
While McNamara did not advocate a complete cessation of hostilities, his strategy of restraint was completely at odds with the advice of Johnson's other military advisers. The bitter split in policy would ultimately lead to McNamara's departure. But it also led him while still in office to wonder exactly how and why America was involved in Indochina and what lessons could be learned from it. He wrote:
By now it was clear to me that our policies and programs in Indochina had evolved in ways we had neither anticipated nor intended, and that the costs—human, political, social and economic—had grown far greater than anyone had imagined. We had failed. Why this failure? Could it have been prevented? What lessons could be drawn from our experiences that would enable others to avoid similar failures? The thought that scholars would surely wish to explore these questions once the war had ended was increasingly on my mind.
With those questions, the Pentagon Papers project was begun. Called the "Vietnam-History Task Force," the study was commissioned on McNamara's orders on June 17, 1967. There appears to have been no awareness of the project in the upper reaches of the Johnson administration. But McNamara denied trying to keep it a secret, claiming that doing so would have been impossible, since thirty-six researchers and analysts were involved. One of the researchers was Daniel Ellsberg.
There are differing views about what led to McNamara's departure as Secretary of Defense. McNamara himself said that he "[did] not know ... whether I quit or was fired." McNamara left the administration in early 1968. President Johnson announced his decision not to seek reelection only a few weeks later. When Johnson left office, Morton Halperin, Deputy Assistant Secretary of Defense for Internal Security, left also, taking his copy of the secret study of the war in Indochina with him and depositing it in the safe of the RAND Corporation, a Washington think tank. Halperin had only thirty-eight of what would later be forty-seven volumes of the study, but those thirty-eight volumes would eventually end up in the hands of Ellsberg.
When President Richard Nixon took office, approximately thirty thousand Americans had been killed in Vietnam, a third of that number dying during his first year as President. Although Nixon began pulling troops out of Vietnam, he did not end the war. Instead, he began an air campaign to bomb Cambodia. Antiwar sentiment erupted around the country, and the protests increased after four young people were killed on the campus of Kent State University on May 4, 1970. The antiwar sentiment would lead Ellsberg, who had worked on the Pentagon Papers project at RAND, to decide that the documents needed to be disseminated to the public.
Daniel Ellsberg was born in Chicago in 1931. Much of his childhood was spent practicing the piano, attempting to fulfill his mother's desire that he become a concert pianist. When Ellsberg was twelve, his parents sent him to Cranbrook, an elite prep school, where he was acknowledged as the school genius. On July 4, 1946, while his family was on a road trip to Denver, his father fell asleep at the wheel. The car crashed into a concrete barricade, killing Ellsberg's mother and younger sister and seriously injuring Ellsberg, who spent three months in a hospital. He returned to Cranbrook for his junior and senior years; went to Harvard, graduating third in his class; and then studied in Cambridge, England. Upon returning from England, he enlisted in the Marine Corps. Ellsberg served in the Mediterranean, and after his discharge he returned to pursue graduate studies at Harvard.
Following his graduate work, Ellsberg joined the RAND Corporation in California. One of his responsibilities was to draft a memo about Vietnam policy during the early days of the Kennedy administration. The memo would become part of the Pentagon Papers. Ellsberg left RAND in 1964 and joined the Defense Department, becoming an aide to John McNaughton, McNamara's Assistant Secretary of Defense. A year later Ellsberg was sent to Vietnam as a civilian consultant. During his time there, he became disillusioned about U.S. policy in Southeast Asia. When he returned to the United States, he rejoined RAND, where he enjoyed access to the entire Pentagon Papers study.
Ellsberg became convinced that the information contained in the Pentagon Papers would be explosive if released. He began removing volumes of the study from his office and making photocopies, often enlisting the aid of his thirteen-year-old son Robert and, on one occasion, his even younger daughter Mary, who was ten. Ellsberg's co-conspirator in this mission was Anthony Russo, a former colleague at RAND. The two men used the copy machine at Russo's girlfriend's advertising agency.
Ellsberg delivered one set of copies to William Fulbright, Chair of the Senate Foreign Relations Committee, in the hopes that public hearings would be held. When Fulbright did not schedule hearings on the matter, Ellsberg contacted Neil Sheehan, a former UPI correspondent Ellsberg had met in Vietnam, who was by that time reporting for the New York Times. In March 1971 Sheehan traveled to Cambridge, Massachusetts, and returned to Washington with photocopies of most of the Pentagon Papers. Ellsberg never turned over the volumes that contained the diplomatic history of the peace talks and the release of prisoners of war. He considered those too sensitive.
Initially, the Times was concerned about the reliability of Sheehan's source. Normally, an investigative journalist is not handed thousands of pages of classified material without any effort on his part. Sheehan shared his information and several of the documents with his bureau chief, Max Frankel, who then informed managing editor A. M. Rosenthal about the papers and the magnitude of the information.
By late April, Sheehan and others had gone through the documents and realized their significance. Times publisher Arthur Ochs Sulzberger was informed of the study and the plans for publication. Sulzberger told the news department to prepare their stories, but that he and he alone would make the final determination about publication. He then began contacting the legal staff of the Times to determine the consequences of publication.
Sulzberger's chief adviser was a former military man with no journalistic experience, Harding Bancroft. Bancroft opposed publication of the Papers. Times columnist James Reston and Times legal department head James Goodale were both in favor of publication. Goodale was certain an injunction would never be sustained by a higher court, and Reston threatened that if the Times did not publish the Papers, he would publish them in his own newspaper, the Vineyard Gazette. Sulzberger finally agreed to a ten-part series of stories supported by the documents, and he allotted six pages a day, half the number of pages requested by the news staff. The first part of the series appeared on Sunday, June 13, 1971.
Public controversy immediately erupted over the Times's publication of the first installment of the Pentagon Papers. The controversy was encouraged, if not facilitated, by denunciations of the Times coming from the State, Defense, and Justice Departments in the Nixon administration. Despite assertions that national security was being jeopardized and that sensitive foreign policy and intelligence information was being disclosed, the Times continued publishing further installments.
On Monday, June 14, the Justice Department sent the Times a telegram asking that the paper desist from further publication or face legal action. After the Times published another installment of the Papers on Tuesday morning, the government went to federal district court in Manhattan, requesting that the Times be enjoined from further publication because grave national security interests of the United States were at stake. Following a brief hearing on Tuesday afternoon, June 15, Judge Murray I. Gurfein granted a temporary injunction pending a full hearing, which was scheduled for Friday, June 18. At that hearing, Judge Gurfein ruled for the Times but extended his injunction to allow the government time to appeal. The government appealed to the Second Circuit Court of Appeals, which reversed Judge Gurfein's decision, ordered that further hearings be held to evaluate the government's claims of serious national security risks, and continued the injunction pending the further proceedings.
Excerpted from How Free Can the Press Be? by RANDALL P. BEZANSON. Copyright © 2003 by Board of Trustees of the University of Illinois. Excerpted by permission of UNIVERSITY OF ILLINOIS PRESS.
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