This is one of a series of stories and videos in which TheWrap explores the background, history and repercussions of the events depicted in the film “The Post,” from the commission and leak of the top-secret Vietnam chronicle the Pentagon Papers to the legal battle over their publication.
As the Trump administration wages a legal battle to stop publication of Michael Wolff’s upcoming book “Fire and Fury,” the new film “The Post” serves as a reminder that this is far from the first administration that has attempted to use the courts to stop coverage it doesn’t like.
The film climaxes on Sunday, June 13, 1971, when the Supreme Court ruled 6-3 that the Nixon administration had no legal right to block publication of the Pentagon Papers, the government’s top-secret history of U.S. involvement in Vietnam.
For the country, it didn’t much matter. Fighting raged on for another four years at the cost of thousands of American lives. Nor did it prevent deception over future wars, such as the Bush administration’s 2003 invasion of Iraq.
But in clearing the way for an unfettered public view of a war that the government had lied about, concluding it was unwinnable despite public assertions to the contrary, the decision made American journalism the big winner.
By ruling for the litigants, The New York Times and The Washington Post, the justices set a high bar for the government to overcome. It ruled that First Amendment rights allowed the press to publish any material so long as it doesn’t pose “grave and irreparable” danger to national security, so stipulated by the Espionage Act of 1917.
The court concluded, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The ruling also made it virtually impossible for government to prevent publication of information not illegally acquired by the press.
“It wasn’t the first time the government faced up to the issue of prior restraint,” said Max Frankel, the former executive editor of The New York Times. He was the Times’ Washington bureau chief in March 1971, when Daniel Ellsberg, a military analyst who worked on the report, first made a copy of the papers available.
“But the result was it created conditions for prior restraint that are almost impossible for the government to meet.”
Indeed, over the five decades since the Pentagon Papers case, no challenge to publication has attained such high profile.
At the same time — and this is key for the press — the Court has never addressed whether journalists could be prosecuted for receiving or publishing purloined material. It’s not even clear if a reporter could be punished for just possession of information bearing on national security.
“There hasn’t been another case like the Pentagon Papers,” said Josh Moore, a legal fellow at the Reporters Committee for Freedom of the Press. “It just doesn’t happen that often.”
And even if it did, it’s difficult to imagine that publishing a comparable report would sustain public attention in today’s sound-byte America. The Pentagon Papers included 7,000 pages of historical analysis and documents in 47 volumes.
“Today, it’s an entirely different landscape,” said Tom Brokaw, the veteran NBC journalist who became the network’s White House correspondent two years after the Paper were published.
“My big concern now is that the Pentagon Papers would be sliced and diced by all the ideological interest groups, making it hard to get a composite picture. It would like looking through a kaleidoscope, with people picking out the color that makes them happy.”
The concept of prior restraint first came before the Supreme Court in 1931, in a case involving a Minneapolis publisher, J.M. Near, who reported that local officials were associated with gangsters. An injunction halted publication. But the Court ruled that prior restraint violated the First Amendment, a precedent that precluded the government, with rare exceptions, from censoring or banning material prior to publication.
The Pentagon Papers echoed that decision, making it “the gold standard problem that many presidents would like to mess with,” said Jane Hall, a professor of journalism and media studies at American University in Washington.
Still, the rulings in Near and later the Pentagon papers case did little to discourage other authorities from trying to hide or control stories on government activities.
A few examples:
• In 1961, several publications printed stories about the planned Bay of Pigs invasion by U.S. forces in Cuba, despite strong efforts by the Kennedy administration to prevent publication.
• A year later, the Kennedy administration imposed controls over material given to the press in the weeks leading to the Cuban missile crisis. The government controlled the flow of information and the movements of reporters.
• In 1975, the Los Angeles Times learned that a CIA-built vessel, the Glomar Explorer, was searching for a sunken Soviet submarine. The U.S. government tried to block publication by refusing to respond to the Times’ Freedom of Information Act request. Officials refused to confirm or deny both the search and its effort to block publication, until both facts were finally confirmed in 1977.
• In 1976, a judge in a Nebraska murder case instituted a “gag order” on trial participants. In Nebraska Press Assn. v. Stuart, the Supreme Court overruled that order as a form of prior restraint that had no true applicability when events occur in public.
• In February 1979, President Carter’s Department of Energy secured a temporary injunction against The Progressive magazine to halt publication of an article titled “The H-Bomb Secret: To Know How is to Ask Why.” It purported to explain how the bomb was made, based on public information. The government dropped its objections after learning that similar information had been published in two other outlets. The Progressive published its story later in the year.
Even with the advantages afforded journalists by the Near and Pentagon Papers cases, administrations have continued pushing news organizations to stop or delay publication. It is routine, Frankel said, that on matters that bear on national security or intelligence, officials argue that publishing certain material could be harmful to the nation.
One of the more recent incidents involved The New York Times’ decision to withhold publishing a story about the Bush administration’s secret warrantless wiretapping program. It was ready to run in late 2004, just ahead of the November elections. But pressure from the White House, which included a meeting between President George W. Bush and publisher Arthur Sulzberger Jr., led to a 13-month delay.
The story finally ran as the deadline approached for a book from one of the reporters on the story, James Risen, who had included the material in “State of War: The Secret History of the CIA and the Bush Administration.”
Almost a decade later, in 2013, that delay cost the Times a major scoop: When Edward Snowden, a former National Security Agency contractor, was ready to leak classified information about secret global surveillance programs, he bypassed the Times and instead chose The Guardian and The Washington Post. Both won the 2014 Pulitzer Prize for Public Service for the stories they ran.
In recent years, the 100-year-old Espionage Act is more likely to be used against leakers than leakees. The Obama administration charged eight people with leaking national security information, including Snowden and Chelsea Manning.
The Trump administration, no fan of what it terms the “fake news” media, has charged Reality Winner, a former intelligence specialist, with leaking a report about Russian interference in the 2016 elections.
But prosecuting those who disseminate leaks has become all the more difficult, Feldstein said, because of the proliferation of digital media.
“Technology has rendered draconian implications of publishing obsolete,” he said. “Years ago with newspapers, an injunction could literally stop the presses. Now, with people like Julian Assange, you hit ‘send,’ making it impossible to put the toothpaste back in the tube.”
Beyond its benefits for journalism, the case of the Pentagon Papers had another lasting impact. In trying to discredit Ellsberg after his leaks, President Nixon ordered a band of loyalists — later known as the White House Plumbers — to find a way to obtain damaging information that would hurt Ellsberg’s credibility. To carry out that mission, they broke into Ellsberg’s psychiatrist’s office.
While the Plumbers found nothing useful, they tried again nine months later, this time breaking into the Democrat National Committee headquarters at the Watergate apartment complex.
For Nixon, that didn’t turn out so well.