Writing in City Journal, Professor Hadley Arkes debunks the now-iconic narrative–championed most recently in Steven Spielberg’s film The Post–that the Pentagon Papers case (1971) presents a high-water mark for the Supreme Court’s jurisprudence concerning the First Amendment. The per curiam opinion of the Court vindicated the Washington Post’s right to publish classified government documents prior to an executive branch review. With a sharp attention to the facts before the justices, as well as the Court’s treatment of “prior restraint” in the years shortly thereafter, Professor Arkes exposes the flawed logic at heart of the landmark case, and asks why Hollywood and Academia alike continue to acclaim such a clear misstep.
“The True Meaning of the Pentagon Papers” Excerpts:
“Lets stop to collect the strands: even the liberal judges would not affirm a categorical rule that would make it wrong in all conceivable cases to restrain publication in advance. For the swing judges, the decision would be contingent upon a reading of the papers and a judgment as to whether they contained material that could endanger military operations or diplomacy or the lives of American agents abroad. The reading of the papers was utterly necessary to reaching a judgment. But the papers were never read—and yet the judges reached a judgment anyway. In the annals of incoherence, the opinion in the Pentagon Papers case has to hold a preeminent place.”
“The chief justice noted that, in the oral argument, counsel for the Times intimated that ‘the Times contemplated enjoining its use by any other publisher in violation of its copyright.’ In other words, the Times would seek an injunction to bar the publication of documents in its possession—documents that these other journals had no claim of rights to publish. The Times would claim for itself, then, precisely what it had denied the government a right to do. Justice White thought that this response made eminent sense, for there was a concrete interest in the copyright. In this odd tangle of reasoning, the interests of a private corporation could justify ‘prior restraints’ on publication, while the interests of the government, encompassing the safety of the nation and its military forces, could not. Justice Oliver Wendell Holmes had famously declared: ‘Great cases, like hard cases, make bad law.’ And on that point, there has been no clearer example than the Pentagon Papers case.
“And if there had been indeed some serious danger in the publication of those papers—if troops could be ambushed, American agents killed—what gain would have been had by prosecuting Katharine Graham of the Post and Arthur Hays Sulzberger, publisher of the Times? Would imprisoning or fining them have compensated families for the loss of lives? Would that have repaired the harms done to the national interest? When we cast the alternative in this way, we can see the matter in a different light: that the government’s move for an injunction was, in fact, the most measured and reasonable thing for the government to do in securing its interests, while doing the least damage to other persons and institutions. There would be no attempt to put a newspaper out of business with a knockout award for damages. Nor would there be a pall cast on the freedom of the press through an overhanging threat of putting publishers and editors in jail. There would be a move only to restrain or delay publication.”
“The shame here should have centered on Byron White, usually the most sedate and honorable of men. In its per curiam opinion in Snepp, with White silently adding his assent, the Court repudiated every argument critical to his judgment in refusing to grant to the government the injunction to halt, even for a moment, the release of the Pentagon Papers. The other point of shame is that the Court, in Snepp, essentially overruled every argument critical for the “swing judges” in the Pentagon Papers case as well—but instead of acknowledging their mistake in that now-iconic case, the judges chose to repair their earlier misjudgment by bringing the hammer of the law down on young Frank Snepp. It was far easier to do that than to risk the ire of liberal opinion by being notably illiberal in handling the lawlessness of the New York Times and the Washington Post. It was, at once, the arrogance and the moral emptiness of the liberal political class.”
Read the full essay here.