Decoding the legalese of The Post
Oscar nominee, The Post, is the story of how the media in the 70’s challenged the law, and why it came to be known as more than just a landmark case cited in textbooks and in court. Featuring big names in showbiz such as Merryl Streep playing the first female publisher of The Washington Post, Katharine Graham and her executive editor, Ben Bradlee, played by Tom Hanks, the film delivers a fine mix of drama with escalating tension and intellectual content that’s sure to leave you reflecting on your own principles as the end credits roll.
WHAT THE FIRST AMENDMENT SAYS
The crux of the issue lies on whether or not The New York Times violated the First Amendment to the US Constitution which in its full text clearly states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This means that when it comes to the freedom of speech and the press, the law protects the publication of information and opinion: you have the right to say what you want and believe in, without censorship. But how far can the media go? Should you publish an article that the public deserved to know at the cost of delivering a great blow to the government? This is the ethical question that The Post asks us.
In 1971, The New York Times published an article about the leaked Pentagon Papers that when crudely summarized, reveals how the past four administrations (Truman, Eisenhower, Kennedy and Johnson) all lied to the public regarding their intentions and the country’s involvement in the Vietnam war. The government in turn, proceeded to sue them in what would then become New York Times Co. v. United States, 403 U.S. 713 (1971). The Washington Post, on the other hand, also got hold of the leak and this is when Katharine Graham engraved her name in history by doing the ballsiest move ever: giving the go signal to also publish the article even when the paper is already at a vulnerable position, risking not just the company, but also potential jail time to inform the public of the truth. Yaaas Kween!
The Supreme Court ruled at 6-3, allowing the papers to publish, with Justice Hugo Black being quoted by Carrie Coon’s character saying:
“...In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”
DOES THIS MEAN IT’S OK FOR THE MEDIA TO PUBLISH GOVERNMENT SECRETS?
Yes and No. Even though the SC gave NY Times and Washington Post a pass in the 70’s, their decision was based on several factors. The purpose of the publication played a crucial role in the SC decision. One of the arguments by Attorney General John N. Mitchell was based on Sec. 793 of the Espionage Act, part of which states:
“Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it… Shall be fined under this title or imprisoned not more than ten years, or both.”
But publication of the articles about the Pentagon Papers aimed to educate the public, nullifying the claim to espionage. The legislative intent of the Espionage Act was to protect the country’s information from being abused by foreign nations, and surely does not apply to a situation where information was released to the public because it is their right to know. If there is no law prohibiting what the NY Times did, then it should not be criminalized. At the same time, just because the NY Times was allowed to publish government secrets, it doesn’t mean the media has unlimited freedom to publish all government secrets. Basically, the general idea of “just because you can, doesn’t mean you should” still prevails.
In a hearing regarding the government’s restraining order against the NY Times, Judge Murray Gurfein wrote:
"[T]he security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know."
All in all, it is the media’s duty to serve the public by delivering the truth, no matter the cost as it is a safeguarded right established by the very Founding Fathers that drafted the Constitution. Its limitations are only defined by the intent behind it.
References:
Full Text of New York Times Co. v. United States, 403 U.S. 713 (1971)
https://supreme.justia.com/cases/federal/us/403/713/#annotation
Espionage Act
https://www.law.cornell.edu/uscode/text/18/793
The True Story behind The Post
