Can the me­dia re­veal stolen truths?

The Supreme Court has con­firmed that the First Amend­ment says yes

The Washington Times Weekly - - Commentary - By An­drew P. Napoli­tano

It seems that at ev­ery turn dur­ing this crazy pres­i­den­tial elec­tion campaign — with its deeply flawed prin­ci­pal can­di­dates (whom do you hate less?) — some­one’s per­sonal or pro­fes­sional com­puter records are be­ing hacked. First it was Hil­lary Clin­ton’s emails that she had failed to sur­ren­der to the State De­part­ment. Then it was a por­tion of Don­ald Trump’s 1995 tax re­turns, show­ing a $916 mil­lion loss he claimed dur­ing boom times. Then it was those Clin­ton emails again, this time show­ing her un­acted-upon doubts about two of our Mid­dle Eastern al­lies’ in­volve­ment in Septem­ber 11 and her rev­e­la­tion of some se­crets about the killing of Osama bin Laden.

The rea­son we know about these leaks is the com­mon thread among them — the will­ing­ness of the me­dia to pub­lish what was ap­par­ently stolen. Hence the ques­tion: Can the govern­ment hold the press li­able — crim­i­nally or civilly — for the pub­li­ca­tion of known stolen ma­te­ri­als that the pub­lic wants to know about? In a word: No. Here is the back story. When Daniel Ells­berg, an out­side con­trac­tor work­ing in the Pen­tagon, stole a se­cret study of U.S. mil­i­tary in­volve­ment in Viet­nam in 1971, which re­vealed that Pres­i­dent Lyn­don John­son had lied re­peat­edly to the pub­lic about what his mil­i­tary ad­vis­ers had told him, the De­part­ment of Jus­tice se­cured an in­junc­tion from U.S. District Judge Mur­ray Gur­fein, sit­ting in Man­hat­tan, bar­ring The New York Times from pub­lish­ing what Mr. Ells­berg had turned over to The New York Times’ re­porters. Such an in­junc­tion, known as a “prior re­straint,” is ex­ceed­ingly rare in Amer­i­can le­gal his­tory.

This is so largely be­cause of the sweep­ing lan­guage of the First Amend­ment — “Con­gress shall make no law … abridg­ing the free­dom of speech, or of the press” — as well as the val­ues that un­der­lie this lan­guage. Those val­ues are the govern­ment’s le­gal obli­ga­tion to be ac­count­able to the pub­lic and the ben­e­fits to free­dom of open, wide, ro­bust de­bate about the govern­ment — de­bate that is in­formed by truth­ful knowl­edge of what the govern­ment has been do­ing.

Those un­der­ly­ing val­ues spring from the Framers’ recog­ni­tion of the nat­u­ral right to speak freely. The free­dom of speech and of the press had been as­saulted by the king dur­ing the Colo­nial era, and the Framers wrote a clear, di­rect pro­hi­bi­tion of such as­saults in the ini­tial amend­ment of the new Con­sti­tu­tion.

Not­with­stand­ing the First Amend­ment, Judge Gur­fein ac­cepted the govern­ment’s ar­gu­ment and found that pal­pa­ble, grave and im­me­di­ate dan­ger would come to na­tional se­cu­rity if the news­pa­per were per­mit­ted to pub­lish what Mr. Ells­berg had de­liv­ered.

The New York Times ap­pealed Judge Gur­fein’s in­junc­tion, and that ap­peal made its way to the Supreme Court. In a case that has come to be known as the Pen­tagon Pa­pers, the high court ruled that when the me­dia ob­tains truth­ful doc­u­ments that are of ma­te­rial in­ter­est to the pub­lic, the me­dia is free to pub­lish those doc­u­ments, as well as com­men­tary about them, with­out fear of crim­i­nal or civil li­a­bil­ity.

The govern­ment had ar­gued to the Supreme Court — se­ri­ously — that “‘no law’ does not mean ‘no law’ ” when na­tional se­cu­rity is at stake. For­tu­nately for hu­man free­dom and for the con­cept that the Con­sti­tu­tion is the supreme law of the land and means what it says, the court re­jected that ar­gu­ment. It also re­jected the govern­ment’s sug­gested method­ol­ogy.

The govern­ment ar­gued that be­cause Con­gress and the pres­i­dent had agreed to void a con­sti­tu­tional man­date — the First Amend­ment’s “no law” lan­guage — in def­er­ence to na­tional se­cu­rity, the ju­di­ciary should fol­low. That method­ol­ogy would have re­jected 180 years of con­sti­tu­tional ju­rispru­dence that taught that the whole pur­pose of an in­de­pen­dent ju­di­ciary is to say what the Con­sti­tu­tion and the laws mean, not­with­stand­ing what Con­gress and the pres­i­dent want. Were that not so, the courts would be rub­ber stamps.

More­over, the high court ruled, it mat­ters not how the doc­u­ments came into the pos­ses­sion of the me­dia. The thief can al­ways be pros­e­cuted, as Mr. Ells­berg was, but not the me­dia to which the thief de­liv­ers what he has stolen. In Mr. Ells­berg’s case, the charges against him were even­tu­ally dis­missed be­cause of FBI mis­con­duct in pur­suit of him — mis­con­duct that in­fa­mously in­volved break­ing in to his psy­chi­a­trist’s of­fice look­ing for dirt on him.

Since that case, the fed­eral courts have uni­formly fol­lowed the Pen­tagon Pa­pers rule. Hence, much to the cha­grin of the Obama ad­min­is­tra­tion, the me­dia was free to pub­lish Ed­ward Snow­den’s rev­e­la­tions about the ubiq­ui­tous and un­con­sti­tu­tional na­ture of govern­ment spy­ing on Amer­i­cans by the Na­tional Se­cu­rity Agency. The same is true for Mr. Trump’s tax re­turns and Mrs. Clin­ton’s emails.

Are these mat­ters ma­te­rial to the pub­lic in­ter­est?

Of course they are. In a free so­ci­ety — one in which we do not need a govern­ment per­mis­sion slip to ex­er­cise our nat­u­ral rights — all peo­ple en­joy a right to know if the govern­ment is spy­ing on us in vi­o­la­tion of the con­sti­tu­tion­ally pro­tected and nat­u­ral right to pri­vacy. We also have a right to know about the fi­nan­cial shenani­gans or up­right­ness and the hon­esty or dis­hon­esty of those who seek the high­est of­fice in the land. That is par­tic­u­larly so in the 2016 campaign, in which Mr. Trump has ar­gued that his busi­ness acu­men makes him uniquely qual­i­fied to be pres­i­dent and Mrs. Clin­ton has of­fered that her ex­pe­ri­ences as sec­re­tary of state would bring a unique asset to the Oval Of­fice.

Ef­forts to si­lence the press or to pun­ish it when it pub­lishes in­con­ve­nient truths about the govern­ment or those who seek to lead it are not new, and the vig­i­lance of the courts has been un­abated. Thomas Jef­fer­son — him­self the vic­tim of painful press pub­li­ca­tions — ar­gued that in a free so­ci­ety, he’d pre­fer news­pa­pers with­out a govern­ment to a govern­ment with­out news­pa­pers. Would Mrs. Clin­ton or Mr. Trump say that to­day? An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jer­sey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

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