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tv   Landmark Cases New York Times v. United States  CSPAN  April 30, 2018 9:00pm-10:33pm EDT

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1971 when "the new york times" and "washington post" challenged the nixon administration for the right to publish what's known as pentagon papers. after landmark cases, we hear from judge douglas ginsburg of the u.s. court of appeals about the history and evolution of the u.s. supreme court. >> listen up! listen up! we've got a decision. we've got a decision. >> here we go. >> supreme court. the decision's in. ♪ >> the vote is 6-3. >> 6-3, we win! we win! >> all persons having business before the honorable, the supreme court of the united
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states remonthish to draw near and give their attention. >> landmark cases, c-span's special history series, produced in partnership with the national constitution center. exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> mr. chief justice, may it please the court. >> good evening, and welcome to c-span's series "landmark cases." tonight's case is "the new york times" company versus the united states in this 1971 case. the supreme court ruled 6-3 against the nixon administration in a big win for "the new york times" and the "washington post," which you just saw depicted in this recent movie, right to publish information on the vietnam war over significant objections from the pentagon and white house. we have two guests at the table tonight to help us understand how the case unfolded and what
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it means today for our society. let me introduce you to floyd abrams. he might be the nation's best-known first amendment lawyer. he was co-counsel in "the new york times" case and is now an attorney with cahill law firm in new york city, where he does focus on first amendment and media law and also is a guest professor at columbia university's journalism school. welcome to the program. >> pleased to be here. >> we're pleased to welcome back mr. ted olson. he has argued 63 cases in private practice and for the government before the supreme court, including during his term as solicitor general from 2001 to 2004. one of his key cases, representing president bush in bush v. gore. he's also a partner at gibs gibson-dunn in washington. we are pleased to have you back. you were with us on the first turn and we are delighted to have you back for a second season. >> i'm delighted you would ask. >> we're going to start with understanding how broad or narrow this decision was. help people understand the decision before we go into all of the details. what did the court actually
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find? >> well, the court found that the "times" and the "post" could not be restrained in advance from publishing a prior restraint, as it's known, and they said that it is a very heavy burden that the government has to overcome. they have to show real irreparable harm to the country and that the government had failed to do that. so, that was the ruling of the court. in addition to that ruling, there were nine separate opinions by members of the court. and while they all agreed that prior restraints are difficult, very difficult to obtain, the vote in the case was 6-3, as we just heard, in favor of the "times," and the justices ranged
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considerably in what they said about that from a very modest victory to a very broad one. but at the end of the day, the ruling was that the government, even during a war, even when there were american prisoners of war held by the enemy during that war, had not shown enough that publication of this historical study of how we became involved in vietnam would do terrible harm. >> ted olson, if it is a narrow decision of prior restraint on the first amendment, what about this case has made it a landmark decision? >> well, this was a very, very big decision. this was the nixon administration attempting to stop the "washington post" and "the new york times" from publishing excerpts of the pentagon papers. this was a big, huge study of the origins and the conduct of the vietnam war. the government was saying it's
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very important, it's dangerous to our national security if this material is published and made available to the public. and the supreme court of the united states in this 6-3 decision said, no, we will not stop the publication. it may have violated the law. that's a possibility, and you might want to prosecute people criminally for violating the law, if you can prove that, but we will not stop, as floyd said, of in advance a publication of material that's in the public interest. we won't tell the press under the first amendment that you can't speak, that you can't publish something. >> so, just to underscore, they cannot be stopped from publication, but there is no guarantee that there couldn't be sanctions for publication. >> that's correct. and indeed, opinions of some of the justices who voted for the "times," justice widen,
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indicated that a criminal prosecution could be brought and might have succeeded. bear in mind, of course, the case came up very quickly, and the members of the court, as some of them complained, were not deeply immeshed in the facts of the case. they really left it to of the government to persuade them, which the government failed to do, sathat publication would do great harm. but when you read those opinions, a majority of them thought it would do harm. i think it's worth saying it did not, but a majority of the members of the court thought publication would do harm, and nonetheless, that the "times" and the "post" could publish. >> this series is all about our constitution. so at the outset, we always look at the constitutional provision that is under examination in the case. this is the first amendment case, and the first amendment
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reads as such -- 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. so, a question for both of you. before this 1971 case, there had been some earlier cases. we have a 1931 near versus minnesota, a '64 case, "the new york times" versus sullivan. what was the law about how far the press could go in publishing prior to this case? >> well, i think the most important case was that 1931 case, and in particular, a line in it, which in the course of saying that prior restraints were terribly difficult, almost impossible to be issued by a court, they offered an exception, and the exception was the timing of ships sailing in
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time of war. so, during the case, both sides spent a lot of time arguing about whether this was like a ship sailing in war, whether publication of this particular, how we got into the war in vietnam, was akin to the sailing dates of ships during a war. so, that 1931 case helped enormously and was by far the closest case. and it wasn't that close, but the closest case there was. >> ted olson, the espionage act of 1917 was the law that the government was looking to in this case. and i'm going to ask what we should know about that law as we think about the questions in the case. >> well, the espionage act is a very old statute. it is very unclear as to what it prohibits and under what circumstances it would impose punishment on someone who leaked
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materials, who communicated information that might do damage to the national security. it was an argument in this case about how far it went. it did not authorize the government to stop publication of a document. it imposed criminal penalties or fines on someone who disclosed national security information. the court specifically pointed out in this case that there was no statute that gave the government the power to ask the court to stop the publication of materials. this business about prior restraints is very important, because if you stop someone from speaking or stop someone from publishing, it won't happen. there's a lot of things that can be done. you can take some risks by speaking about something. that 1931 case was an attempt to stop the publication of
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defamatory material. it was an expose by the newspaper and they said you can stop the publication of defamatory material, but the court said no, you cannot do thap it. but the privilege is, if you stop someone from speaking, they won't be heard. and that is a very difficult thing under the first amendment which says congress shall make no law abridging the freedom of the press. >> there was a time when the only thing that the supreme court said was protected by the first amendment was against prior restraint. >> 1905, oliver wrote an opinion saying just that, that prior restraints are what the first amendment is all about and only what the first amendment is about. now, we've come a long way since then, but the point is really
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that what everyone historically has agreed upon most is that prior restraints, limitations in advance on speech are the most dangero dangerous, the most limiting, and therefore, the most protect ed against activity of the government. >> we're going to move from the constitutional and legal framework for the case and to the particulars. before we do that, let me tell you how you can be involved, and we hope you will. if you live in the eastern or central time zones, call us and you can get in queue and we'll get calls throughout the program. 202-748-8900. mountain or pacific time zones, 202-748-8901. and you can send us a tweet. we love mixing tweets in throughout the program. if you tweet us @cspan, use #landmarkcases. 1971, the vietnam war was beginning to falter for the united states. there were 156,800 soldiers in
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vietnam, down from a high of 334,500 just one year earlier. there were 2,357 u.s. deaths in 1971, down from 6,081 in 1970. and back here on the home front, the war's popularity was certainly diminishing. we're going to move on to the cast of characters, as we call them, in this case, starting with the pentagon papers themselves. what were the pentagon papers? >> secretary robert mcnamara, the defense secretary, had the idea as the war got worse and worse with fewer and fewer ways out, it seemed, to commission a study, a historical study -- how did we become involved in the war? what happened? who did what? why were we there? one might think he would do that study before you enter a war, but we had not done that. and so, secretary mcnamara commissioned that study, got
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together within the defense department scholars and others to use highly classified defense department documents to prepare a study of how we became involved, going back to world war ii and thereafter and all the way to 1968 when the pentagon papers ended. >> why did the government want to keep the pentagon papers secret? >> well, it was interesting, because this was the nixon administration that was in charge at the time that this litigation was brought. most of the material in the pentagon papers was embarrassing and harmful to previous administrations, because as floyd said, this study went back to the truman administration, back to the end of the second world war, and it was particularly embarrassing to president johnson and maybe to a certain degree to president
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kennedy. so, the nixon administration wasn't so badly embarrassed by the contents of the material that was indicated that the government had lied to the american people, had done various different things that were quite damaging. but the nixon administration became convinced, in part because of secretary kissinger made particularly strong arguments that if you don't stop this, if you don't stop these leaks, where is it going to stop? and you've got to be able to stop this kind of broadscale leaking of classified, dangerous information, or there's no stopping point. and we will have no credibility in the rest of the world about our ability to keep secrets if we can't keep this secret. this was 7,000 pages of material. >> while you mentioned president nixon, of course, another character in our story tonight, what should people, especially those who weren't alive, know about his relationship with the press as we get into this case?
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>> floyd, of course, knows much more about this than i do, but i think everybody who lived during that period or anyone who studied it knows that president nixon was not a fan of the press. >> you can say and vice versa. >> right. so, he didn't like the press because they had been critical of him, they had portrayed him in ways which he did not like, and he was very concerned about his vulnerability to the press. and so, this was a hostile, difficult, tortured relationship that he already had with the press. so, something like this comes along and he sees that they're publishing secret information and that might be something else next, he's going to react to do whatever he can to stop it. >> i'm going to ask you to give people a sense of what "the new york times" and the "washington post," the two petitioners in this case, were like in 1971,
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very different media landscape than we're experiencing today. >> yes. there were newspapers then and only newspapers and three television networks were the heart of the information givers in the country. there were local newspapers around the country, very often one newspaper in a town or one newspaper in a city, sometimes it's a few newspapers in a state. newspapers were the primary place most people got their news. and as i indicated earlier, three television networks -- nbc, cbs, and abc. and from those sources, the information came to the public. and of course, the world is very different now. >> this is our first case in this series with warren burger's chief justice.
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what should people know about him? >> people should know, in the first case, this court that decided this case, there were five of the justices who had been appointed by republicans. chief justice burger had taken over the supreme court, appointed to the supreme court by president nixon, and was a very different person than his predecess predecessor, earl warren. the earl warren court was quite famous for protecting civil liberties and opening new areas of individual rights and so forth. the burger court, chief justice burger, warren burger, who had been from minnesota and had served on the court of appeals for the district of columbia circuit, was very interested in the orderly processing of judicial decisions, the structure of the court, how decisions got made, how state courts worked and that sort of thing. he was a much more businesslike jurist than his predecessor, earl warren. >> there would not be a pentagon
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papers case without daniel ellsberg. who was he? >> he had been a marine in the war in vietnam. he was an intellectual. he had favored the war in its early days and had come to believe that it was a war crime. he had come to believe that we were doing things in vietnam which violated international law and principles of morality and the like. he was one of the authors of the pentagon papers. he was a scholar as well as everything else i've said. and so, he was one of the authors commissioned to write a chapter of the pentagon papers. and he came to the view that only the public could see the degree to which it had been lied to through the years, which
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perpetuated american presence in vietnam, that they would demand that the war end. he felt notwithstanding our victory and notwithstanding everything else that happened, and he feels today that he failed, that his mode for releasing this information, risking jail for himself for a very long time was to end the war, and while the publication was very newsworthy, and it affected public opinion, it did not do that. >> we have said that this is a very accelerated case, and some of the cases in the series have taken years to get to the supreme court. not so in this instance. let me walk you through this very quick timeline that this case was under. just a bit prior to the june 13th, 1971 publication of the first story -- the newspaper had
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gotten the story from daniel elseberg -- june 15th, the "times" received its cease and desist order, the government seeks a restraining order. then june 18th, the "washington post" published its first story on the pentagon papers. june 19th, the second circuit court of appeals rejected the injunction. on june 22nd, the second circuit court of appeals hears cases and grants the injunction. i don't think that's correct. there were two different courts in this. and june 25th, the supreme court takes up the case. oral arguments were heard on june 26th. here's another interesting thing we'll talk about later. on june 29th, the united states senator from alaska, mike gravel, entered the records into record through his subcommittee and the court announced a decision by june 30th. so, very rapid discussion in the legal system of this case and we'll learn about the implications of this as we move forward. first bit of video, we're going to introduce you to hedrick smith, who was a "new york times" reporter and happened to be one of "the new york times"
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reporters that was writing this story. he talked to us eventually and he told us how "the new york times" got the information and how the paper conducted its work to publish that first story. >> i first saw the papers in the hilton hotel on sixth avenue in new york. sheehan had gotten a hotel room up at about the 35th floor. we had two file cabinets full of papers. we're talking about four drawers, four drawers, eight drawers of papers, tens of thousands of documents. and we just started to go through them. they had just begun looking through them when i got there, and it was amazing to see the amount of material and to look at one document after another, top secret, top secret, top secret, eyes only, which means only a president can see it or the secretary of state or the ambassador or commander of the joint chiefs of staff, whatever. and we started to go poring through them to try to figure
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out how to do stories about them. i mean, there was so much material, it was almost impossible to figure out how to handle it journalistically. what we did was we simply followed the organization of the pentagon paper. we took 13 chapters and spread them out and basically dealt with them in that way. i think in the end, we came out with 12 or 13 different days on which we ran the papers. the government's argument was that publishing the papers would harm national security. we looked at it. this was history. all these events were over. we're talking about the eisenhower years, the 1950s, kennedy years, the 1960s, and then the johnson years, the late 1960s. and here we are in 1971. there was only one part of the pentagon papers that was live in the sense that events were still unfolding, and that was called the diplomatic annex. it was all about the various different efforts and peace channels there were to negotiate some kind of settlement between
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washington and hanoi. we never touched that. we took one look at that, we said, if we write about that, we have no idea whether or not those channels are still alive. we could harm diplomacy. we're not going to go into that. so, we were mindful of actual national security needs. >> and let me show you the headline that came out of that work. it was june 13th, 1971. vietnam archive pentagon study follows three decades of growing u.s. involvement. sheehan had the by line for that story. was there immediate reaction in the country to this, this first story? >> it's something that grew. it was a page one story. it was a big story. it was clear that it was a big story. the "times" incidentally did not publish the entirety of the rest of the pentagon papers.
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they spent three months editing them to decide what was newsworthy and what would hurt national security, beyond the one chapter that rick smith talked about. but it was a big deal from the moment it started to be published. and it was not surprising that the administration reacted strongly to it. the question was, would they do anything about it or would they simply condemn the "times"? as you mentioned earlier, relations between the press, the "times" in particular, and the nixon administration, were hosti hostile, and the one possibility could have been simply to minimize it, which one might do if one was afraid of national security secrets being revealed, to minimize it and denounce the "times." that's not the way the administration decided to go.
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>> the nixon administration, president nixon, created a historical treasure trove for the country by taping his oval office conversations. we're going to let you listen to a portion of two of them, one on june 13th between alexander haig and richard nixon, and then right after that, henry kissinger and richard nixon talking about "the new york times" and how the administration should respond. >> anything else of interest in the world, sir? >> yes, sir, very significant, this god damn "the new york times" expose of the most highly classified documents of the war. >> oh, that. i see. i didn't read the story, but you mean that was leaked out of the pentagon? >> sir, the whole study that was done for mcnamara and then carried on after mcnamara left by clifford and the peaceniks over there. this is a devastating security breach of the greatest magnitude
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of anything i've ever seen. >> what's being done about it, then? i didn't -- did we know this was coming out? >> no, we did not, sir. >> we're putting them on notice that they're advisementing a statute, because we have a communication mel laird as to the communication of the documents. they fall within a statute now. i don't know if you've noticed it, but this thing, mel was -- >> hen vaey on the other -- he just walked in. i'll put him on the other line. go ahead. >> mel had a pretty good go up there before the committee today on it, and it's all over town and all over everything, and i think we'd look a little silly if we just didn't take this low-key action of denouncing them about the publication -- >> did mel take a fairly hard line on it? >> yes, he gave a legal opinion and it was a violation of the law, which -- >> well -- >> puts us -- >> well, look, look, as far as the "times" is concerned, hell, they're our enemies. i think we just ought to do it. and anyway, henry, tell them what you just heard from rostow.
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>> rostow called on behalf of johnson, and he said that it is johnson's strong view that this is an attack on the whole integrity of government, that if whole file cabinets can be stolen and then be made available to the press, you can't have orderly government anymore. >> so, we're looking at it through the lends of history, but i want to hear what both of you have to say about listening to those conversations unfold and the urgency with which they were bringing this matter to the president. >> first of all, it's just wonderful to hear it. it's just marvelous. >> like those words, god damn "the new york times"? >> yes, and they're our enemy. that must ring true today. so, i would -- my reaction is that that's a pretty loose way to make a decision. that's a pretty unthoughtful, unserious way to make a
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decision, to go to court, and at least implicate very strong first amendment values. >> ted olson, you've been on the government's side in thinking whether or not to litigate, so what's your reaction? >> well, i do think that this was regarded by lots of people, and legitimately, as very, very serious. these were all documents that were -- not all of them, but many of them marked top secret. the government had decided that these were very sensitive documents when that classification is applied to a document or a record, it means that the government has determined, responsible people in the government have determined that it would be very dangerous to the united states, the security of the united states, if that information were shared publicly or leaked out. so, on the one hand, i understand what floyd is saying. i don't necessarily disagree with him, but they were concerned. this was a massive breach of
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national security. when you have this magnitude of top-secret materials, and they knew at that point that some of it had come out in "the new york times," but they also thought that this was -- or they also knew this was probably just the small tip of the iceberg. there was a lot more, and they weren't even sure at that point how much more was yet to come and what was it coming from. >> and i think the last thing ted said is a very important point. they were never very sure, even though we told them during the case effectively what documents. it should be said that of the 7,000 pages, 3,000 were copies of "the new york times" and other newspapers duly stamped top secret, one page after another. the other 4,000 pages all ended as of 1968, three years before
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this all began. they were designated, as ted said, top secret. the way the government worked now as then, is if any one document out of a series of documents has a higher designation, everything is ranked at the higher designation. so i don't think -- or i think i know they didn't know what was in the pentagon papers. and looking book it, we do know what was in it. and while there were some things, most of which "the new york times" did not publish, having spent three months pruning it to decide what could harm national security, we do know that, you know, a lot of times pass. we haven't seen an article since then saying, look, now we know. look what happened. look at the terrible things that have happened as a result of
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publication. i wrote an article ten years after the pentagon papers came out in which i interviewed all the participants who would talk to me to ask me what happened. and none of them could cite anything harmful. >> 43 volumes and over 7,000 pauj pages of material in the pentagon papers. so, when "the new york times" published, quickly went on to the "washington post," as we saw, a story depicted in steven spielberg's movie. we're going to show you the headline that came out june 18th in the "washington post," similar documents reveal u.s. effort in 1954 to delay viet election is their first story. we're going to return to hedrick smith on other papers publishing the pentagon papers. let's listen. >> when elsberg was smart enough to go to the "washington post" and then the "st. louis post dispatch" and the "chicago tribune" and other papers to keep getting other papers to print more of the pentagon papers to show the government
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that it couldn't stop the publication, we had broken the dam. the other papers knew that they were not going to get thrown in jail, they were not going to get accused of treason. >> but this is a self-governing country. the constitution provides for separation of powers -- >> what on earth are you doing? >> they followed your lead, published the papers. >> we're not alone. >> i have to tell the audience just a small eye roll here, because "the new york times" was the first to publish the papers, but that's drama, after all. i wanted to ask both of you from a legal strategy standpoint,
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daniel ellsberg sending it out to so many papers, how does that change the government's ability to prosecute the case? >> well, floyd should be the one to answer that first because he was directly involved. >> right. >> well, it did make it harder to prosecute the prior restraint case, the case that we've been talking about, against the "times" and then other papers. they did bring actions against the "post," and "the christian science monitor" and other papers, you know, who got the papers from elsberg, to stop them as well. but one judge in the district of columbia board of appeals put it very well when lawyers were in front of him on this case. he said, you're asking us to try to stop a swarm of bees from publishing material. there were so many entities
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publishing them so quickly that the idea of wording this so that everyone could be enjoined was going to be impossible. i think that had an impact, a real impact on the supreme court, because if they came effectively limit publication, what's the point of doing it? >> daniel ellsberg understood the concept of going viral before we got -- >> well, absolutely, and that is the situation. and floyd was there and knows, but once this genie was out of the bottle and it was showing up everywhere, and you went through the timeline for the court, the supreme court of the united states had very little time to know what they were doing. the justices repeatedly said we don't know what we're dealing with. we don't know what the fact are. we haven't had time. in fact, one or more of the
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justices in the dissenting opinion was critical of "the new york times" saying, well, you have three months to look at this and to decide what you wanted to publish, and you're giving us no time and a couple of days, or less than that, to brief -- i think floyd lrdz said, some of the briefs were filed the same day as the oral argument in the u.s. supreme court, so the justices were frustrated because they didn't have time, but they were also realists, because they knew that all this stuff was happening, ellsberg had put it out everywhere, and what could they do with a judicial decree to stop something from happening that was already happening? they resorted to the fact that you maybe can prosecute these people, but we really can't stop them from these documents or this material from being out in the public because it's already out there. >> in our next segment, we'll learn about the case at the supreme court, but it's time for some of your phone calls. let's hear from peter in elizabethtown, pennsylvania. hi, peter.
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>> caller: hello, and thank you, ms. lane. i have to say a quick congratulations. the landmark cases series is just so good. pure gold. thank you. now, to your excellent guests. this case is so fascinating. i apologize if this is sort of a stupid question. while i have no doubt that the pentagon and other agencies abused their classification powers trying to keep secrets that would in no way have an impact on our national security or our servicemen, and i think this ruling was very beneficial, a great thing for our nation, i had never quite understood, weren't there copyright laws back in the early '70s? these documents were taken from the rand corporation. didn't the rand corporation and possibly the pentagon have recourse to say this is our intellectual property? we've been working on this report for years.
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we'll decide to publish it, and you can't sell your newspapers by publishing our property. sorry if that's a stupid question. >> no, it's not stupid at all. it's a very interesting area, in fact. the papers belong to the united states of america, and there is a statute which says that the united states does not have copyright rights over papers. so, fortunately for us, that was not an issue. i will add that the solicitor general of the united states in his arguments for the government against the "times" cited copyright law in just the way you just did. and he said, in effect, look, if we had a copyright on this, we could ban it. this is worse than that. these are national security documents. surely, we ought to have the power to limit those documents from coming out for that reason.
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>> well, there's one more point to add to that. i think that is a very good question, because in the arguments in the supreme court, and one of the justices, or more of them, said about "the new york times," you've copyrighted your article. you intend to prevent other people from using the stuff that you've copyrighted, so you want to have a prior restraint on somebody else taking your material as under the copyright laws, and yet, you deny that same route to the united states. it was a very interesting point. >> next to steven in washington, d.c. >> caller: oh, hello! what an honor. wow. so great to talk to you. i admire and respect all three of you very much. i was wondering whether you agree the sharing of intelligence information has sort of been institutionalized between the media and various administrations and intelligence communities. >> do you want to do that, ted?
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>> well, it certainly has, and we've seen that in the last two years in abundant detail. i mean, there are massive leaks of information, some of it -- we all know about the wikileaks and the 2016 presidential election, and there is this symbiotic relationship between the press and the people that get this -- snowden and so forth. but floyd and i were talking before we came on the show -- floyd came up with some very, very important affidavits that showed that it was happening and has happened for a long time, and he showed the court that there is this culture in washington that involves the leaking of classified information to suit the government's purposes in various different contexts. floyd can explain this better than i can. but the same thing that we're talking about today in much
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greater volume was happening then. >> yeah. yes, and that was more as a question, or quite rightly use the word, it was almost institutionalized in that sense. a small group of journalists trained in this area worked very closely with and received leaks from people in the government who wanted certain information out for some reason, some to promote national security, some to make sure that the army got more money than the air force, some to make sure that so and so didn't get credit for something when they wanted someone else to get credit. that still exists. but at this time -- and there was a brilliant, brilliant affidavit by max frankel, formally the executive editor of "the new york times," which i really recommend to you all,
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outlining how the system, almost, of mutual benefit by leakage existed at that time. >> rick is up next, louisville, ohio. >> caller: yeah, hey, guys. in the last 20 years, i've had three books published, and i grew up in detroit back in the '60s and the '70s. we were the greatest country in the history of mankind. we had laws in place. we had trade laws, tax laws, banking laws, antitrust laws. but the most precious of all laws were the laws that were created by the generation, the greatest generation that basically regulated the media -- fairness doctrine and whatever. and you know, you're talking about vietnam. vietnam was started by lyndon johnson. lyndon johnson was a texan. the last five wars have been started by texans.
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we've been at war for 20 years. clear channel radio had 1,500 a.m. radio stations during the bush administration. at&t comes out of the state of texas. georgia has cnn and time warner loaded with military bases. the east coast, connecticut and new york and california, that's your liberals, loaded with wall street, loaded with, you know, the treasury and the federal reserve and silicon valley. >> rick, i'm going to jump in because you're really taking us in a much broader sense than the case, so thanks for your call. our time is short, so with apologies, i'm going to move on to john in west lake village, california. go ahead, please. >> caller: yeah, my question is the model that's being proposed is this american model, a rising of the american constitution.
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my question is, the british, they have a prior restraint law, they have a state secrets law, they have very strict libel laws. they seem to have a pretty rigorous, fair press, maybe even better than ours. why is the model that mr. abrams proposing better than the other model? >> thank you. >> well, first, i really don't agree that they have a better press or have had for many years a better press than we do. that's a judgment call. second, when british editors want to publish something, they come here. that's what happened with the snowden materials. they were released through an american subsidiary of "the guardian." and british journalists are very
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envious, indeed, of the free press that we have. more broadly, yes, there are different ways for democratic societies to be organized, and in terms of striking balances between freedom and liberty and other important interests, we lean very heavily in the direction of more freedom of the press, more freedom of speech. i think that's a good idea, but there are other ways to run legal systems and other ways. canada is more restrictive than we are. i prefer our system. and when you read our cases, i think they're really very powerful. >> on to the court in 1971. as we said, chief justice warren burger, and we're going to tell you about the other members of the court, the nixan appointees were chief burger and harry blackmun. justice appointees, thurgood
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marshall, kennedy appointees byron white. eisenhower is still on the court, john marshall ii, william brennan and potter stewart and hugo black and william o. douglas roosevelt made up the no, ma'amies. this was 13 days after "the new york times" published that first article, there were two hours of oral arguments. and we're going to listen to a little bit. tell me how the legal team was assembled and what the decision was, or the argument. >> the chief counsel for "the new york times" was professor alexander bickel from yale law school. professor bickel under whom i studied at law school was viewed in the language of those days as a conservative academic. he had clerked for jason frankfu frankfurter. he was, as he once put it to me, not a first amendment
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vuluptuary. and he was not. and indeed, if there was any criticism of the "times'" lawyers' presentations to the court at every level made then and indeed now, it was that we didn't talk enough about the first amendment, that we talked about separation of powers, we talked about statutes. we talked about a lot of things which we thought might be easier to attract the votes of conservative jurists on the court. >> listen to a portion of alexander bickel's argument before the supreme court. >> let me give you a hypothetical case. let us assume that when the members of the court go back and open up this sealed record, we find something there that absolutely convinces us that its
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disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers. what should we do? >> mr. justice, i wish there were a statute that covered -- >> you're proposing a case, mr. justice, in which that element of my attempted definition which refers to the chain of causation being -- >> i suppose in the great, big, global picture, this is not a national threat. there are at least 25 americans killed in vietnam every week these days. >> no, sir, but i meant it's a case in which the chain of causation between the act of publication and the feared event, the death of these hundred young men, is obvious, direct, immediate -- >> that's what i'm assuming in my hypothetical case. >> i would only say to that that
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it is a case in which in the absence of a statute, i suppose most of us would say -- >> you would say the constitution requires that it be published and that these men died, is that it? >> no. no. i'm afraid that the inclinations of humanity overcome the somewhat more abstract devotion to the first amendment in a case of that sort. >> so, help us understand this hypothetical. what was the justice getting at there? >> well, the justice was saying, i want you to assume that as a direct result of publication of the pentagon papers, 100 young men are going to get killed. are you telling me that the first amendment requires that we allow that to be published? and now, this was professor bickel's first argument anywhere. this was his first case and his first argument in the supreme court. the first thing he did was what great advocates like ted will do
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sometimes, which is not quite to answer the question, try to bring the justice a little bit away from it. justice stewart would have none of that, insisted on a direct answer to the question, and professor bickel gave what he considered, and i considered, the most essential, critical, and needed answer, which was, yes, in that situation, a prior restraint would be consistent with the first amendment. that was a controversial answer. the american civil liberties union the next day filed a brief in the court denouncing that answer, a very rare thing in supreme court practice. but it was one that he thought was essential to win over or keep the votes of the two members of the court, justice stewart and justice white, that we thought we needed the most. >> one of our viewers, joe
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paulison wroez that this sounds like a gotcha, but not sure where to draw that line. what if the article saves the lives of thousands of people, but in the process a limited number would die somehow? just a these are the kind of questions that advocates have to deal with in the supreme court. there is usually no perfect answer. you are talking to nine different supreme court's. it's not one supreme court. as floyd said, what he had to do was be mindful of the fact that he had a certain number of votes that he was probably not going to lose, and a certain number of votes that he was not going to win.
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jesters -- justice stewart and wide where the two that he needed to win the case. what he was doing, for someone who had not argued in the supreme court before, i agree with floyd, this was a very careful answer. what he did, he gave a reasonable answer. he preserved his position. he did not lose a vote that he might have otherwise lost if he took a categorical position that yes, this is an absolute thing under the first amendment. >> i to jump in because of time. i want to get griswold arguments on this point. he held that position. he was nominated by lbj to that position, and president nixon kept him on. these were a few of his arguments. a >> i also think the heart of our case is the publication of the material specified in my closed brief well, as i try to
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argue, materially affect the security of the united states. it will affect lives. it will affect the process of determination of the war. it will affect the process of recovering prisoners of war. i cannot say that the determination of the war, or recovering prisoners of war is something that has an immediate effect on the security of the united states. i say that it has such an effect on the security of the united states that ought to be the basis of an injunction in this case.>> ted olson, you been in that role. >> what he was saying is, i am speaking on behalf of the united states. i am telling you, based upon the material that we have in the possession of the united states, that the publication of this material will damage the united states in various
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intangible ways. i cannot say that it will have this specific result immediately. this is dangerous material. we have a responsibility to protect united states, and protect the citizens of the united states. i am telling you, to the supreme court, do not let this happen. it will cause great harm. he is really putting it to them at that point. >> that is a very strong argument to make. even if it is not supported, even if he cannot cite many facts in support of it. this is what the united states was saying from the moment the cases began. the word they kept using was irreparable harm. the problem was, when they got in front of judges who asked them hard questions, give me a document.
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show me a document. show me which one will do great harm. they could not do it. a >> before we get to the court's decision, this is a look at the outside. additionally, the papers were entered into the record of the senate by senator gravelle. what happens when we bring the record of the united states congress into this? what does that do to the information? >> first, we do not know what a fact, if any, it had on the court. we don't know if the court even knew it. >> this was the congressional record. >> obviously, it is a very strong argument against a prior restraint. that is the point. what are we doing? why are we issuing court orders? it enormously implicates the first amendment if nothing will
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be served. for the extent that they rattled papers, and they became known, if the court thought about them or knew it was everything, the theory of this was that the enemy will learn things from it. it could've had an impact. i have not read anything from anybody, in all of the literature indicating that it did. >> hypothetically, it could have. it could have set up another challenge of a branch of government. >> yes, but there are other provisions called the speech or debate clause that insulates members of congress from any liability for what they might put in the congressional record. >> me are moving to the decision. we have a few more calls.>>
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good evening. my question is on justice black. he had his absolutism. how influential was he in this decision?>> we will put some of justice black's concurrence on the screen. we will get them five minutes. this is james on the line. >> with the internet today, and the ability to disseminate information instantaneously, the whole concept seems archaic . people can be punished after the fact. that may be the only way that people will stop publishing. somebody will still do it in the age of suicide bombers. people will risk their lives getting material out there. i think this case looks interesting.
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it's from a different age now, but it wasn't that long ago. >> is this archaic? >> there were different cases and different facts that were published. the questioner has a very serious and valid point. i would only add, we are talking about 7000 pages. this was the largest leak in american history. edward snowden took millions of pages, if you counted page by page in terms of what he had access to. we are so far gone from those days in that sense. it may seem a bit archaic. it is the same. things occur where presidents don't want, either because of national security concerns,
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personal security concerns, do not want certain things published. the effect of the pentagon papers case is that what they have assimilated from their advisors about the case is that they cannot keep it from being published. this is recent. presidents have called in the editor of the new york times, a publisher of the new york times , and said do not publish the fact that we are not getting warrants for certain things over here within the country. the times, in that case, said no. >> this is the abc news report on june 30, 1971. >> for two and half weeks, two constitutional principles have clashed. the government's view of national security versus the
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newspapers a view of their freedom to print. the newspapers one. from the supreme court where the issue is decided, this is abc's bill zimmerman.>> a dramatic four minutes late, the justices sat with the business at hand. they were reading the 6-3 decision, the opinion quoted from the 1963 case. any system of prior restraint of expression comes to this court wearing a heavy presumption against its constitutional validity.>> this is how the decision turned out. >> the concurrence with the per curiam decision, speaking of the voice of court, that there were nine different opinions out of this case. six of them were concurrence cases. brennan, stewart, black, white comments -- and marshall. they had three dissents. you had harlan, berger, and blackman. will go through a couple of the very brief text of the opinions.
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this is the per curiam. any system of prior expression comes to the court with a heavy presumption against the constitutional validity. the government carries a heavy burden of showing justification for the imposition of such a restraint. the district court and the court of appeals filed that the government had not met that burden. we agree. then we had a question about justin just mac -- justice black. you can prevent any part of the government from deceiving the people, sending them off to distant lands to die of foreign fevers, and foreign shock and shall. in my view, far from deserving condemnation for their courageous reporting, the new york times and the washington post, and other paper should be commended for serving the purpose that the founding fathers saw clearly. cynic that is the first amendment absolute it. what you think about the
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decision?>> i weep with pleasure! i love listening to justice black's language. it was his last opinion on the court. it was an opinion that he was justifiably very proud of. it is one of the enduring remains of new york times versus united states. >> i will put two of the dissents on the screen. chief justice burger, in this case, the imperative of a free and unfettered press comes into collusion with another imperative, the effective functioning of a complex modern government. specifically, the effective exercise of certain constitutional powers of the executive. only those who view the first amendment as absolute in all circumstances would -- of you i respect but reject, what
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assigned this case to be simple or easy. i will move on to justice harlan. this frenzied train of events had the presumptions against prior restraints created by the first amendment, due regard for the extraordinarily important and difficult questions involved in these litigations, should have led the court to shun such a timetable. >> i should say, in addition to justice black, who was an absolutist. as you read, he read the first amendment, congress shall make no law abridging the freedom of speech or the press. no law means that no law. justice douglas held that view. there were 2 of those votes. to get to the dissenting voices, you heard the justice say, this frenzied pace. one of the other dissenting justices said it was a feverish pace.
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the court that was reversed here said, let's send it back to the district court for an opportunity to look at the various documents that are threatened here. that way we know what we are doing. these dissenting justices, in addition to disagreeing, some with respect, they agreed there was a heavy burden with regard to restraint. they also thought we needed to know what is going on. in order for us to do our job, we need to know what risk there is. the government should have a number of days. that's what the second circuit ordered, to look at the documents and make junk -- judgments with individual cases. we cannot be justices, or judges of the damage that can be done here, unless we know what we are looking at. that is not an unreasonable point of view, except that it clashes with the idea that
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there shall be no prior restraints, even a short-term one. >> i will show you the headlines in the newspapers, as we listen to a call from francis.>> hello. i was wondering, what books do you recommend it to read to learn about the pentagon papers? what do each of you like to read most days? thank you. >> i would say, the best thing to read about the pentagon papers case is floyd abrams book, it's called speaking freely. it is a tremendous analysis of the legal issues, and the factual issues. i reread it in connection with this program. that is one of the things that i would strongly recommend.>> i agree. >> there is a book called the day the papers, something or other by professor rubenstein.
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there is a whole book on the pentagon papers case. it was written somewhat more recently. mine was a lawyers look. this was an on the ground, what was happening viewpoint. i think if you read either one of them, you will get a very good sense of it. >> let's listen to have president nixon and j edgar hoover reacted to this. >> i wanted to tell you that i was so damn mad when that supreme court, did not like their decision. that was unbelievable, wasn't it? >> it was. to make those clowns we have on there, i hope i outlive the baskets. connect me to. >> we have to change our court.:there's no question about that. i thought what the possibility of five-for. is >> i thought we ought to get white, what's the matter with
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him? then the other one, what the hell is the matter with stewart? >> stewart is a wishy-washy individual. he switches from one side to the other. >> it's interesting to hear the presidents thoughts. what your reaction? >> is very predictable listening to various tapes of richard nixon. if you listen to tapes from lyndon johnson, and some of the language in his comments about things that were going on, and other presidents have felt the same way every time they lose a decision in the supreme court. i don't know whether they use the same language, but i suspect that you would hear if there were more tapes, similar language from similar presidents who are disappointed. you covered interesting cases in the series. presidents do not like to lose
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anything. they really don't like to lose in the supreme court where they know that that is the end of the line. >> i would add to that, a reference to justice stewart and white, it's quite right that they were the deciding votes. we had four votes when we came in. the question was always, would we get to more? it was stuart's opinion, was -- which was generally viewed as the court's opinion. he said the only circumstance with which a prior restraint could be issued in a case like this, is where the government proves that the disclosure of the materials would surely result in direct, immediate, and irrevocable damage to the nation. that is a tough standard.>> i will show you historic footage from abc on the reactions by graham, bradley, and others.
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>> my reaction was one of joy and delight. now we will go back to business as normal. we will put out the times. i never doubted that we would win. sometimes it seemed like it would be a bit longer of waiting than i had hoped. here it is. we are starting publishing tomorrow. >> i am extremely gratified, not only for the point of newspapers, which is not the least of our concerns, but gratified for the point of view of the government. this is good government. this is a great viewpoint from the public, and the public's right to know. that's what we were concerned with. >> we are free to publish what we were always going to publish. this is material, in our mind, the public has a right to know.
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it does no damage to the united states. that was our position when we started printing. it is our position today.>> the reaction from the involved newspapers. we have 20 minutes left. will talk a bit about what happened to daniel ellsberg. will have a larger discussion about the tension between the government and its desire to have national security secrets, and the public's right to know. first of all, with the immediate reaction to this, the paper continued to publish stories, then what happened? what was the result of all of this?>> it did have an effect on public opinion. >> public opinion does not always have an effect on public policy. it led to the freedom of information act getting past. that was a major step forward in terms of public information. it helped us, on the dark side,
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solidify the ever-growing breach between people who hated the press as president nixon did. then you have people who are generally supportive of it. didn't matter, in terms of the war? it is hard to say. probably not, the pentagon papers were 1971. it was years more of fighting. there was an irony in that. what is the worst thing that came out of the pentagon papers? we kept fighting the war, when people in control knew we could not win it. they didn't do anything about it , except to continue to fight it. >> many people also feel that there is a direct link between this case and the reaction in the nixon administration to
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what happened here. the concern, compulsive concern , some of it justified, and some of it not, i'm not making a judgment about leaks. some people feel, and i think with justification, led to the creation by president nixon of the plumbers. they went into ellsberg psychiatrist office, and other places. this was the compulsive concern about leaks led to what would happen 2 years later with watergate and the end of the nixon administration. >> this is a bit of the next one with richard nixon on tape, talking about how the administration should respond to daniel ellsberg. >> i just say, we have to keep
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our eye on the main ball. the main ball is ellsberg. we have to get the son of a bench. i was talking to somebody over here. maybe we ought to drop the case so this is -- supreme court doesn't sustain it. i said hell no. you cannot do that. you cannot be in a position of ever allowing this. just because this guy will be a martyr, he cannot get away from -- with this whole cell thievery. >> it will happen all over the government if something doesn't happen. what happened to daniel, the leaker? >> he went back to his real life. he taught, he wrote, etc. >> he was never prosecuted?
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spivak he was prosecuted for a time. nothing came of it. the prosecution was brought up about the pentagon papers. it was aborted by the break-in that they referred to. the break-in commissioned by the president of the united states, which led judge burns in california to say, this is conduct of such enormous unacceptability. it is so do truck -- destructive of the judicial system. the trial cannot continue. ellsberg never went to jail. he should get credit, a lot of credit for being willing to do something as dangerous to his own safety as this. >> everything that floyd said
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is correct. on the other hand, i would think that there were other movies that were recently out, including a movie called dunkirk. we have seen movies about the landings at normandy. that goes back to what they said in the near case in 1931 about the movement of troops and so forth. the government has to be able to keep certain secrets. there are secrets with respect to how you construct nuclear weapons. there are secrets about where intelligence is gathered. there are secrets that the united states, and other governments need to be able to keep. daniel ellsberg thought he was right. he thought he was doing the right thing.
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i'm not agreeing with that in this context. individually, we have a system of government of laws. there is a point at which individuals cannot make these decisions for themselves about what is in the best interests of national security of the united states. in certain circumstances, there may be other things necessary to preserve and protect government secrets. this has to be something that's part of the functioning of our government. >> let's go back to calls. this is dan in livingston, new jersey.>> i am enjoying the show. my question is, has the case been used as any precedents for subsequent cases? has it changed anything regarding transparency? did it help with the sunshine laws and the government, or whistleblower protection laws?>>
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i think it is yes to all of those. it certainly led to more transparency. as mentioned earlier, we would not have the freedom of information act if we had not done all the things we talked about. has it been cited in other cases? yes, and in one case the government for a time was winning. that was under president carter. the progressive magazine published an article about how to build an h-bomb. the government went to court, under president carter, it was a u.s. district court landing a prior restraint. the pentagon said at the heavy burden. the government was vetted in this case. what happened then, it was determined that the suppose it secrets discussed and revealed in the progressive case were already known in the literature.
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the government dropped the case. it was over. the fact that the case is a general barrier to the issue in prior restraint even in national security, does not mean that it is absolute. ted is right about that. it has been cited in other areas in which judges in criminal courts are answering for prior restraint against publishing information. that's what the law is in england. they have information about a confession of a defendant, before it was admitted into evidence. the supreme court, in the course of tracking down that prior restraint, cited the pentagon papers case. other cases have as well. >> there was the whole area of gag orders in criminal cases. and the judge might feel it's necessary to protect the rights of the criminally accused, to
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tell the press, do not talk about what is happening with the evidence. it can deprive an individual of a right to a fair trial. that's a different issue. it's not unrelated. >> we talked about constitutional conservative michael paulson. we talked about this case. he said one thing that it did was to create a gravitational pull. even if there's a violation of statutes, or hesitancy on the part of the government, would you agree with that? >> yes and no. we have seen during previous administrations, a spike in efforts to subpoena newsmen about what their sources are in efforts to prosecute under certain circumstances. it has deterred on that kind of
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effect. it leads the government to try to figure out, are there other ways in which we can protect secrets? we can go after potential criminal violations by attempting to find out where the information is coming from. the justice department has specific rules about this. they revise them all the time. that is one of the manifestations of it.>> the major impact is in the area of the case itself. that is prior restraint. it laid down a really tough barrier to overcome. if the government cannot win a case in the middle of a war, at the time when american pows are being held, and the government was representing the publication that it would irreparably harm the nation, they cannot win a case, it will be hard for them to win any
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others in this area. in these other areas, as mentioned, we have a functioning government. we do not live in a society in which anyone can do anything, take anything, or release anything, and run no risks for doing so. that is why edward snowden lives in moscow and not washington. >> a twitter follower asked, is the freedom of the press, the freedom of anyone to print, or the freedom of one to print anything?>> to go back to justices black and douglas, the constitutional provision says congress shall make no law. there are obvious areas where there are laws that govern and relate to the freedom of the press. it is not just the freedom of
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the press or speech, they are overlapping, especially in today's world. the freedom of the press and the freedom of speech, on who is a journalist, you can publish what, those are blurry lines. there are all sorts of litigations that come out of the fact that is difficult to distinguish. >> in some ways, it is making this less and less. with social media, we live in a world in which we are not asking anymore. are you a journalist or not? you have information, you want to talk about it, you either have a right or you do not have a right. you generally do have a right. you can talk about it. anyone, in general, can spout off about just about anything you want. you cannot talk about everything. when we are in the tiny area of the not everything, you can
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discuss how to build an h-bomb. >> if no one knew, wouldn't matter if you are journalist or not. you would not be allowed to do it. you would go to jail if there was prosecution for it. >> ellsberg also demonstrate respect for the law when he turned himself in. i never thought his decision to disclose the papers was easy for him to make. i listen to a recent interview, where he underscored that he thinks of himself as a patriot through the process.>> can also be said, ellsberg did not turn over the entirety of the pentagon papers. he kept the negotiating volumes. that is to say, volumes of the papers, as they existed in 1968 , relating to efforts to negotiate a way out of vietnam. he wanted the war to end in
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vietnam. he did not want to frustrate those efforts. the times did not have everything. they did not publish everything they had. ellsberg didn't give them everything. >> this is a bit of the devils advocate. everybody who does something like this, every whistleblower and person who leaks information , thinks of himself as a patriot. they are doing it because they think it is right. they think this is a better good. you have to have the discussion, at least, of whether or not you have a legitimate government elected by the people, subject to the laws and constitution, can an individual decide, is it better for me to do something to stop the war, then behave according to what the laws are with respect to government secrets and restraint? it's not as one-sided as the
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person who does the leaking things. i did it because it's in the interest of my country. >> that is true. it is a part of what is usually civil disobedience. usually, the people to do this are willing, if necessary, to pay the price for doing it. there are people who have done it. i've been critical of wikileaks and of mr. snowden with his revelations. it's not that one cannot pass judgment. it's not even that everybody who acts on his own conscience ought to be absolved of the consequences. some people who do, i count ellsberg is one, are worthy of praise for doing it. a >> we have been referencing this. i want to get it on the record, some of the more notable cases in the past decade or so, the valerie plane case in 2003 and
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2004. the washington post reporting on military black prisons. chelsea mannings a leaking of the diplomatic cables in 2010, and the edward snowden case on national security documents in 2013. one of the viewers writes, i'm worried about the ability to release a volume of material that makes the pentagon paper does my papers look like a trickle. you can download a low-level employee, wikileaks level leaks worry me. i thought chelsea manning was rightly prosecuted. >> that's the problem. ellsberg worked for a corporation as a government contractor. snowden, they work for government contracts. they are not working for the government. in this age of computers, internet, and so forth, we allow vast amounts of information to be accessible to individuals.
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some people are only at low levels of government, who are not properly being watched. they are not being trained. they have not been properly checked out. sometimes, when you see these things happen, these are individuals that maybe people pay more attention, they could have prevented these people from having access to a lot of potential information. >> this was a private in the army, with that sort of access. >> i agree. is >> we have three minutes left. i wanted to get something on the record. griswold was the general at the time. in 1989, he published this in the washington post, called secrets not worth keeping. these were classified information. he said he was on the wrong side of history in this argument. we have time for one more call. this will be john from texas. >> thank you for taking my question.
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with regard to the standard of prior consent, and its application with regard to the pentagon papers, how would that have been legally different, had the conflict in vietnam been a declared war versus an executive military action? the constitutional basis was more nebulous.>> if all you did was to read the opinion, you would think it would have no effect. this was not based on the proposition that it was simply executive action. i do agree with the gist of your question. if this were a situation of a declared war, i will go further, a popular declared war, if this were world war ii redone, somebody was leaking information, saying that i know better than the government, he would not have a lot of friends around. i would also add, the press
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would not publish a lot of that sort of information. the that would be for the same reason that the times did not publish a good body of information that they had. they chose not to print them in the pentagon papers. >> i agree with what he said. >> with two minutes left. i will ask each of you to put a wrapper on this for the audience. in the context of the complex immediate environment in which we live today, what is the meaning of the pentagon papers case? what is the import of it for our society?>> it will always remain a precedent of the united states supreme court that the first amendment, the one thing that the first amendment protects is the ability to speak or publish except in extreme circumstances. there are ways in which each and the press can be constrained with respect to copyright, or respect to
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various different things. generally speaking, telling someone that they cannot censor speech is something that the courts will look at with great skepticism.>> i agree with all of that. i would simply add, i think the lesson and impact of the case on american president, has been to persuade them, once a but he was to print something, the president cannot stop it. presidents will not go to court. presidents don't go to court, even when they feel strongly that information should not be published. it does not mean that you cannot have such a case. it says something that the only case, since 1971, when the
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pentagon papers were decided, was about the h-bomb. we have not had one since. that is almost a non-weapon of the presidency. that is the case because of the pentagon papers. >> because you work inside two administrations, what are your thoughts? >> presidents are always frustrated with what the press does, says, and what they don't say. they always feel, when i worked with george w. bush, in the administration, the time of 9/11 , his people were determined, we must not let that happen again. those type of policies may have led to certain decisions that some people feel were wrong. presidents will be motivated by their perceived need to protect
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the citizens of the united states from violence, terrorism , and protect the security and independence of all of the citizens. >> as we close, we have just a thank you to our guests for giving our audience the benefit of this very interesting discussion tonight on the first amendment. we appreciate you being here. thank you for being in the audience tonight. we will see you for the next landmark case.
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next monday on landmark cases, we have a case on capital punishment. in 1976, 20 on greg, a convicted armed robbery murder challenged his death sentence. his case, and for other capital punishment cases were considered by the court. the supreme court ruled against them, but established stricter guidelines on states imposing the death penalty. the gas will be carol stecker, one of the top capital punishment legal scholarship -- she has argued against the desk my death penalty. can scheidegger, the legal director of the criminal justice legal counsel.
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he advocates in favor of capital punishment and a smoother and swifter capital punishment system. watch landmark cases, next monday, at 9:00 eastern on c- span. join the conversation, the hashtag is landmark cases. follow us at c-span. we have resources on our website for background on each case. we have a link to the national constitution center's, and the landmark cases podcast. c-span's washington journal, live, every day, with news and policy issues that impact you. it comes up tuesday morning, enterprise institute's daniel palatka discusses trump administration national security challenges, such as

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