How Free Can the Press Be?

Freedom to Publish (New York Times Co. v. United States)

Story 1: Freedom to Publish 7 Story 1 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? 8 how free can the press be? 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 NewYork 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 theVietnam War was raging and distrust of government was rising dangerously.1 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 1. Sources for the following account are George C.Herring,America’s LongestWar: The United States and Vietnam, 1950–1975, 2d ed. (Philadelphia: Temple University Press, 1986); Stanley Karnow, Vietnam: A History (New York: Viking Press, 1983); Robert S. McNamara, In Retrospect : The Tragedy and Lessons of Vietnam (New York: Times Books, 1995); David Rudenstine...