Revisiting The Pentagon Papers Case: Could Guardian Journalists be Charged under the Espionage Act?

Note:  This is the first part of a multiple part series about the ability of the government to prosecute journalists for receiving and disseminating national security information.  It comes in response to increasing public musings about the prosecution of journalists related to the Edward Snowden leaks.

“[I]f anything, it seems that the intervening years – the forty-two years between the Court’s opinion in the Pentagon Papers and today – have rewritten much of what those Justices wrote in the balmy summer of ’71. The case – which was far from a complete victory – is much less friendly to press freedoms than many would like to remember.”

by Matthew L. Schafer

On June 30, 1971, Alexander Bickel, a lawyer for the New York Times and a constitutional law scholar, climbed the steps of the United States Supreme Court building on 1st Street (they were still in use then), N.E. in Washington, D.C. to argue that the Court should vacate the Second Circuit’s order preventing the Times from publishing the Pentagon Papers.

The case was New York Times v. United States.  The Court had to decide whether the United States could properly seek to enjoin the publication of classified, but newsworthy material.

Bickel spoke second at oral argument and was faced with a wave of questions from the Court almost immediately.  Responding to one from then Chief Justice Warren E. Burger, a Nixon appointee, Bickel explained, “I think Mr. Chief Justice that [the risk of uncertain harm to U.S. interests] is a risk that the First Amendment signifies that this society is willing to take, that is part of the risk of freedom that I would certainly take.”

The Court continued to push how far Bickel was willing to go down the path of protecting the publication of potentially dangerous or harmful speech.  Justice Stewart finally put his finger on the inevitable question.

“Let us assume [that we are convinced] that [this] disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers, what should we do?” Stewart explained.  “You would say the Constitution requires that [the classified documents] be published and that these men die, is that it?”

Bickel surrendered the point: “I’m afraid I have — I’m afraid my — the inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a [hypothetical] case of that sort.”

Bickel may have surrendered the point, but he won the day.  Just four days after the oral argument, the Supreme Court found in his client’s favor.  In a short opinion for the Court, the Justices ruled that the government had an exceedingly high burden to meet to prevent the Times from going to press and, in this case, “the Government had not met that burden.”

The Times started running news from the Pentagon Papers the next day.  But that is, as they say, only part of the story.

Along with the Court’s unsigned opinion came six concurrences and three dissents.  In this separate opinions for individual justices, the members of the Court argue back and forth whether the journalists involved in the publication could be prosecuted for their actions even if they Times could not be prevented from publishing the Papers.

The Concurring Opinions

Justices Black and Douglas wrote two concurring opinions focusing solely on their jointly held belief that the First Amendment was an absolute bar to the government infringing on freedom of speech or of the press.

As Black said, “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

Neither Justice addressed whether the government could punish the reporters for publishing classified information after the fact even if they could not prevent the initial publication.  Although, if they had, they most certainly would have responded in the negative.

Justice Brennan agreed with his more senior colleagues, Black and Douglas, writing, “Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.  In no event may mere conclusions be sufficient.”

And then there were Justices White and Stewart.  Their concurring opinions illustrate how close Bickel was to losing his case and how close the United States came to inheriting a much different First Amendment than the one we live with today.

As White wrote, “I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. ”

White and Stewart did, however, give the government a small consolation – suggesting that perhaps the government could criminally prosecute the newspapers or reporters.

“[T]erminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do,” White cautioned.

The Justices even went on to suggest what sections of the Espionage Act the reporters might be violating, including § 793(e), which makes it unlawful to “willfully . . . transmits [a document relating to national security]  to any person not entitled to receive it.”

They also offered up § 797, a similar section making it “a crime to publish certain photographs or drawings of military installations.”

“If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they publish,” White wrote.  “I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.”

They were quick to add that they were “not, of course, saying that either of these newspapers has yet committed a crime.”

Justice Marshall wrapped up the concurring opinions with a rather boring diatribe about whether the Court had the power to issue an injunction where Congress had not granted them that power.  He did, however, agree that White and Stewart’s view of criminality was at the very least “plausible.”

At this point then, three Justices were of the opinion that the Espionage Act made government prosecution of reporters who disclosed confidential information plausible.  And then there were the dissents.

As the Pentagon Papers Case shows, as recently as 1971, five members of the Supreme Court suggested that reporters could be prosecuted for revealing classified national security information.

The Dissenting Opinions

Chief Justice Burger and Justices Harlan and Blackmun all dissented.  They did not argue the merits of the case – whether the Times had the right to publish the classified documents.  Instead, they argued that the proceedings in New York and in Washington, D.C. were too hurried.

“The time which has been available to us, to the lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve,” Harlan wrote in an opinion joined by the Chief and Blackmun.

Even though the dissents thought the Court should not even rule on the merits because the process was bungled, the dissents – forced to make a decision – would have ruled in favor of the government:

“It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted,” Harlan wrote.  “This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.”

Although the Chief and Blackmun joined Harlan, they also penned two dissenting opinions of their own.  Unlike the Harlan opinion, the remaining dissenting Justices opined on whether the journalists involved could be prosecuted for disclosing the Papers.

Blackmun, for example, said that he was in “substantial accord” with Justice White’s suggestion that journalists could be prosecuted under the Espionage Act for disclosing classified information.

At the close of his dissenting opinion, the Chief said similarly, “I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.”

In short, two of the dissenting Justices agreed with White’s suggestion that the reporter’s could be prosecuted.

A Foregone Conclusion?

The popular belief is that United States could never prosecute journalists for possessing or disclosing classified national security information.  That proposition is far from settled.  As the Pentagon Papers Case shows, as recently as 1971, five members of the Supreme Court suggested that reporters could be prosecuted for revealing classified national security information.

The Pentagon Papers Case also teaches something else:  History does terrible things to society’s collective memory.  Indeed, if anything, it seems that the intervening years – the forty-two years between the Court’s opinion in the Pentagon Papers and today – have rewritten much of what those Justices wrote in the balmy summer of ’71.  The case – which was far from a complete victory – is much less friendly to press freedoms than many would like to remember.

Finally, the Pentagon Papers Case also tells us just how lenient and deferential a Court can be to the government when it comes to national security issues.  Even though the government failed to carry the day, a number of Justices conceded that the scope of the Court’s power was exceedingly limited when it came to the executive’s power to dictate the Nation’s national security.

1971 was not the last time the Court dealt with ideas like prosecuting journalists, freedom of speech and national security, and the need for the executive to have wide latitude within which to operate when it comes to the national security.  As will be seen, there is much more to the story than just the Pentagon Papers Case and a few disparate concurring and dissenting opinions.  But, these next chapters of the story will have to wait for another day.


About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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