Freedom of the Press: New York Times v. United States


Before we begin, there’s something
I want to tell you about the First Amendment. It wasn’t really the first. The first Congress actually didn’t list freedom of speech
and of the press first. It actually listed it third on the list. But the first two amendments didn’t get ratified by the states. It’s a happy coincidence because speech and press are
really, in some deep sense, perhaps the most
important freedoms. It’s really hard to
write a constitution. Our own Constitution wasn’t
the framers’ first attempt. Remember the Articles
of Confederation? After the Constitution
was ratified in 1789, the framers added 10 amendments
in the first two years, and even then, they weren’t
sure they had it right. When you read letters
from the time period, they’ll say things like, well, if the government’s
still here in five years, here’s what I think we should do. Experience leaves its
mark on a constitution. So when you look at the First
Amendment’s freedom of speech and freedom of the press… “Congress shall make no law abridging the freedom of
speech or of the press.” It looks cut and dried: “No law” means no law, right? Well, not quite. As it turns out, our idea of
free speech and a free press has changed a lot over the years. This is the story of how
time and experience turned these fundamental rights
into what they are today – and what the framers only
imagined they could be. Today, they’re absolutely bedrock. Everyone believes in free
speech and free press, but it wasn’t always so. OK, so imagine what life here was like before the Constitution. No “We the people,” no
right to free speech, much less a free press. Why? Because the people
didn’t rule the colonies. The king ruled. And what the people thought
was not of interest to the king. The colonists felt very strongly that one of the freedoms that
was denied to them by the king was the ability to speak out. They wanted the freedom
to be able to speak out and object to their government. They wanted to be able to protest. They wanted to be able to
communicate with one another. During the revolutionary era,
they clearly had a lot to say, and they had a lot to say that
the king would not have liked. And as the Revolutionary
War began, a free press – this thing, churning out sheets
of paper filled with ideas. Ideas can be powerful, and they were just as dangerous
to the king as any gun. The crown was really
trying to stop them from expressing
revolutionary ideas and talking to each other and assembling and getting
their revolution going. All the protest literature
was against the law. The king had a couple of ways of shutting down the press. He could shut down presses
before they printed ideas. This is known as “prior restraint.” A prior restraint is
kind of, you know, putting a gag on somebody
before they ever talk. So anyone who wanted
to use a printing press, basically, had to bring their
newspaper, their book, their pamphlet to a
government licensor, who would read through it,
excise anything in there that they thought
was inappropriate, which meant critical of the
government in any way. This had been banned in
England in the 17th century. But when the king’s rule
was threatened by war, the British government
used prior restraint to try to quiet the
revolutionary press. And if he couldn’t shut them
down before they spoke, the king could prosecute
revolutionaries after they said anything
critical of the government. This has a technical name
you’ll want to remember: “seditious libel.” Seditious libel is defined as speaking ill of the government. It’s a crime to criticize
the government. All power was in the
king and Parliament. And they couldn’t be questioned. But the king lost the war. And when the framers
wrote the Bill of Rights, they remembered how
important the press had been to winning their freedom. They were accustomed to the idea that criticizing the government
is a good thing to do. That became part of their idea of what it means to
be in a democracy. In a democracy, where the idea is that the people would
have the authority to select their leaders, then it was important
for the people to actually know what the
government was doing. Democracy depends on
an informed citizenry. In order for democracy
to function effectively and to function with integrity, the public needs to
know what’s going on. So the First Amendment says the government can’t stop us
from expressing ourselves. The First Amendment carries these core principles
that are all necessary in order for people to find
their voice in a democracy. It includes both freedom of speech and freedom of the press. The freedom of speech protects us when we
talk to each other, when we give speeches,
and we put ideas forward. The press is an
institutional means for spreading those ideas to
a large number of people. So the freedom of speech
and press work together. Individual speakers
could all, of course, give speeches and hand
out leaflets and so on. But they saw the press as
a more important player, in an institutional sense,
in American democracy and in a better position to
keep the government honest. Because the press had the
capacity to use resources to learn information and
to convey information in a broader way than an
individual speaker could. And the First Amendment protects both speech and the press
from the government. It says that the government
can’t tell you to shut up because it doesn’t like
what you’re saying. So the First Amendment
was ratified, and we’ve had total freedom
of the press ever since, and this is the shortest civics
film you’ve ever had to watch. Um, no. In fact, the men who
wrote and then ratified freedom of speech and
freedom of the press were the very first ones
to try to undo them. When the government goes
into motion in the 1790s, there’s still a lot of debate about exactly what the
Constitution means and exactly how far this
new government can go. So they’re arguing as to
what the Constitution means and these are the
people who wrote it. After George
Washington left office, some of the framers tried to
limit free speech and the press because they were afraid of war. The Alien and Sedition Act was signed into law by
President Adams in 1798. He is the leader of
essentially a house divided. France was growing in power, and as it threatened
Europe and the U.S., fear of war increased tension between the two new
political parties at home. President John
Adams, a Federalist, signed the Alien and
Sedition Acts into law. He was afraid the
French might topple the young U.S. government with the help of the
Democratic Republicans, led by his vice president,
Thomas Jefferson. The Sedition Act basically made it a federal crime to criticize the president. The act made it a federal
crime to criticize Congress. Now interestingly, it wasn’t a federal crime to
criticize the vice president, who was the head of the
other political party. Remember, back in those days, the president and vice president were the top two vote-getters
in each election, so they were rivals, not
from the same party. The Sedition Act
protected only one party and punished the other. And the Adams administration felt that the Jeffersonians
favored the French. And they called them disloyal. The way the act was used was exclusively to prosecute
Republican critics of the Adams administration. Like Congressman Matthew Lyon, who spent four months in prison
for criticizing the president. This is ridiculous. This is a gross violation of
the First Amendment idea, of the free speech idea. You can’t have a law that makes it a crime to
bring the government or the president or the Congress into contempt or disrepute. That’s what the First
Amendment’s about. So, you might want
to ask about now, where were the courts? Why didn’t they set
things straight? Well, at this point in
American history, the courts had yet to
overturn a federal law. In fact, the entire concept
of courts stepping in to fix federal laws, what
we call “judicial review,” wasn’t established in
the Supreme Court until Marbury v. Madison. So Congressman Lyon
and the others in prison were out of luck. But a funny thing happened with
the press and the Sedition Act. The funny thing that happened is that it didn’t quell dissent. In fact, dissent from the
opposition party increased. During the two-and-a-half years that the Sedition
Act was in effect, the number of opposition
newspapers doubled. Voters threw John
Adams out of office in the bitter election of 1800,
largely because they disliked his interpretation of
the First Amendment. So it was a long time before
another president thought that limiting free speech
was a good idea. Jump ahead over 100
years to World War I and President Woodrow Wilson. This time, the president
and Congress passed the Espionage Act of 1917
and the Sedition Act of 1918, saying Americans can’t interfere
with the government’s ability to draft people into the military. But their effect was
greater than that. The laws were used in a way that suppressed speech
and punished people who were merely dissenting
against government policy, how the war was being conducted. Thousands of people were
arrested and put in prison for hampering the draft
by speaking against it. The most famous was
Eugene V. Debs. Debs, a Socialist, had been
a candidate for president in a previous election. He was a nationally known figure. A man who gets a million votes, a million votes
running for president, gets up and makes a speech saying that he thinks
World War I is a bad war. And he is prosecuted
under the Sedition Act and he’s imprisoned. Debs was sentenced
to 10 years in prison for giving a speech. The courts sent people to prison
for speech considered dangerous because it might
cause a bad reaction. By this time, there
was judicial review, so the Supreme Court heard
cases challenging these laws. And in each case, the court
sided with the government. In the first of those cases, a case called Schenck
v. United States, the Supreme Court, in an opinion by Justice
Oliver Wendell Holmes, unanimously upheld the
conviction of individuals who had handed out a bunch
of leaflets criticizing the draft. The Supreme Court embarked on a very repressive interpretation
of the First Amendment. It was Justice Holmes’ “clear
and present danger” test. Justice Holmes argued that lowering morale for the draft presented “a clear and
present danger” to the nation and that the First Amendment did not protect free
speech at all costs. “No law” didn’t
always mean no law. Justice Holmes said suppose
someone yells “Fire” in a crowded theater when
he knows there’s no fire and people are trampled
running to the exits. Are you really saying he
can’t be punished for this? Holmes says of course not. So the First Amendment
obviously can’t mean what it superficially
appears to say. Only a week later, the court ruled against
Eugene Debs. The Supreme Court unanimously upholds
his conviction. Another opinion by Justice
Oliver Wendell Holmes that was in the front
page of every paper in the United States. The Schenck case,
the Debs case, ultimately had the
U.S. Supreme Court giving its stamp of approval upon the criminalization
of dissent. But then something
amazing happened. The Debs decision
got a lot of people thinking about what
freedom of speech and freedom of the press
really meant during wartime. Among them was Justice
Oliver Wendell Holmes. And that fall, he argued
in a famous dissent that actually, free
expression during wartime shouldn’t be prosecuted,
but protected. And so you get this extraordinary
moment of pivoting in which Holmes
suddenly wakes up. And for the first time,
we have this strong, eloquent statement by Holmes
that basically begins, for the first time, to articulate the meaning
of freedom of speech and freedom of the
press in this country. Joined by Justice Louis Brandeis, they influenced court rulings
on the First Amendment for the rest of the century. We have to protect
people who dissent. There’s a marketplace
of ideas out there, even ideas that challenge
basic things in our society, and everybody has to
have their opportunity to change the mind of the nation. The position of Justice
Oliver Wendell Holmes and the position that Justice
Louis Brandeis took in subsequent cases gradually
and eventually becomes law. Over the next 50 years, the court moved away from government suppressing
free speech back to the idea that free speech is a vital way to check
the government. What you see are the justices going back in time to a
fundamental recognition that the founding generation
kind of had the right idea, that dissent, the protests, was something that
enabled us to break away and start our own nation. The court has come full circle. They learn it with hindsight. They looked back at what
happened in World War I. That was crazy. In the same way that after 1800, people looked back on
the Sedition Act of 1798 and said: What were we doing? This was not necessary. We completely allowed ourselves
to exaggerate the danger and to restrict fundamental
freedoms in a democracy because we were not acting
calmly and carefully. So on a summer
Sunday in June 1971, when Daniel Ellsberg
bought a stack of copies of the New York Times, the front page made
him very happy. No, not the story about President Nixon’s
daughter getting married. This one, to the right. There had been a leak, and a top-secret U.S.
government document was now being
trumpeted as a headline on the front page of
the New York Times. Daniel Ellsberg was the leak, in fact, more like a flash flood. Ellsberg had given
the New York Times a 7,000-page report
that became known as the Pentagon Papers. The Pentagon Papers was a multivolume work by individuals in the
Department of Defense that would tell the story of
how decisions were made, who made them to navigate
the war in Vietnam. A history of all that the
U.S. had done right and all that the U.S.
had done wrong, with the benefit of hindsight. And Daniel Ellsberg, who was someone who worked
in the Department of Defense and who was a strong
advocate of the Vietnam War, came around to a
different point of view. Daniel Ellsberg had been
in the Marines for a while. He had served in Vietnam. He had been in favor of the war. Ellsberg was involved
with creating the report. And the more he learned, the more Ellsberg believed
that the government had lied about why it went
to war in Vietnam and that its policies were
covering up the fact that the U.S. was losing the war. That report revealed some
of the sins of the policy. The Pentagon Papers revealed that the American
people had been lied to in a variety of very
significant ways that had manipulated them
into being more sympathetic to our role in Vietnam than
they might have been had they known the truth. Daniel Ellsberg wanted
the American people to have this information so they could know what
their government was doing. But the report was
classified “top secret.” The way the classification
system works, the highest level of
classification of a document, the most secret document,
is the one which determines how the whole document
would be labeled. So all 7,000 pages of
the Pentagon Papers were classified “top secret,” even though it wasn’t information that endangered troops. But some of it was
deeply embarrassing to the government and our allies. Daniel Ellsberg secretly
photocopied every page. First, he tried to get
members of Congress to make the report
available to the public. And they basically say: Classified information
is classified. We see no reason to regard
anything you’ve told us as justifying violating the
rules against publishing and disclosing
classified information. When they did not do that,
he went to the press. He turned them over to
the New York Times and basically said: Now
you know the truth. Make it public. And after months of poring over each photocopied page, that’s exactly what the
New York Times did. Right there on its front page: Secrets revealing
that the government had not told the truth to
the American people about the war in Vietnam. And it was only the first article. The Times announced
it would publish an entire series of articles
about the Pentagon Papers. At first, President
Richard M. Nixon was slow to respond. The Pentagon Papers covered
the four administrations before President Nixon, so they didn’t reveal
secrets specifically about his administration. Still … Over the first 48 hours, different aides told the president the Times was wrong to
publish top-secret information. And President Nixon
ultimately agreed. The position of the
Nixon administration was that they were betraying
the freedom of the press. After only three days of articles, the Nixon administration
convinced the courts to stop the Times from publishing any
more installments. What Richard Nixon’s
administration did was historically
unprecedented. They went into federal court asking federal judges
to issue an order stopping publication of
the Pentagon Papers. The New York Times
was enjoined, it was stopped, from reporting
the rest of the story. Ellsberg was undaunted. He ultimately succeeded in
getting the Washington Post to publish the story. And the courts stopped
the Post from publishing. But Daniel Ellsberg didn’t stop,
and neither did the press. Across the country,
newspapers began publishing what the Times and
the Post couldn’t, as the Times and the Post
headed to the Supreme Court. The Court heard and decided
the case in only four days. The most rapidly expedited
case in American history. On June 30th, 1971, the
Supreme Court ruled that the government could
not prevent newspapers from publishing the
Pentagon Papers. They didn’t have time
to write together, so each justice wrote
his own opinion, breaking down into
a 6 to 3 majority. The majority told the government
that even in wartime, it could not stop the
press from publishing unless it really jeopardized
lives or the nation’s security. And amazingly, what the
Supreme Court holds is that the government cannot
stop them for a moment, unless the government can prove that the publication
of the information will create a clear and
present danger of grave harm to the nation. Justice William 0. Douglas wrote that “open debate and
discussion of public issues are vital to our national health,” even if revealing secrets
“may have a serious impact.” It was really the first time that
the Supreme Court came out explicitly during a
time of national crisis and said that we have
to draw a line here. The people need to
know about that. In dissent, Justice
Harry Blackmun warned that the decision could lead
to “the death of soldiers, the destruction of alliances … and the inability of our
diplomats to negotiate.” And the dissenters in the Pentagon Papers case say,
basically: What, are you crazy? This makes no sense at all. All the government
wants to do here is to have time to give
us an opportunity to know what the risks are. Now, it turns out that the truth is, when all the dust settled, nothing published in
the Pentagon Papers would satisfy the standard
of clear and present danger, of imminent harm. The Pentagon Papers case was an extraordinary
triumph in reaffirming some of our most essential
First Amendment values. After almost 200 years, the court held the
government accountable to those First Amendment values. Freedom of speech and
freedom of the press are the priority, even
during wartime. So the difference between what the Court did in World War I and what the Court does here
is about as night and day as one could ever imagine, right, a complete 180-degree
change in its willingness to step in and say, We
are going to enforce the First Amendment
with a vengeance. It’s not a decision that
comes out of the blue, right? There’s an evolution
in the doctrine. And technology is also evolving. Today, just about
anyone can publish. Daniel Ellsberg had 7,000
pages of the Pentagon Papers, and in order to get it
out there to the public, he had to make copies of it and give it to newspaper editors. I mean, you can put the
entire Pentagon Papers on a thumb drive and upload
it yourself to a website. But the decision in the
Pentagon Papers case continues to protect the press. The press can be critical, and the government can’t tell
it what or what not to publish. The First Amendment,
the deep idea is, don’t trust government
to make that decision. Voters should make that
decision for themselves. Readers should make that
decision for themselves. Ordinary citizens, we the people, can
decide for ourselves. The freedom of the press is an extraordinarily important
aspect of the First Amendment. And it’s important because the Constitution works on a
checks-and-balances system. But there’s another
part of the equation and that really is the people. The people are really the
fourth branch of government. You have to know what
the government is doing.

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