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Gag Orders, Prior Restraint And ‘The Post’

The Pentagon Papers in a  museum display case
The Pentagon Papers on display at the LBJ Presidential Library. Photo courtesy the LBJ Library on Flickr.

If you have seen “The Post,” Steven Spielberg’s well-crafted docudrama about the Nixon administration’s 1971 effort to block publication of the Pentagon Papers, you might think the First Amendment legal battle was novel at the time.

You might also leave that film believing the Supreme Court definitively settled the rules on prior restraint when it ruled in favor of The New York Times and The Washington Post. You would be justified, but wrong, on both counts.

The extent of permissible limits on the freedom to write and speak remains unclear even today. Some of the most recent examples have grown out of the efforts by Robert Mueller to prosecute two of President Trump’s former campaign aides in connection with their prior work for foreign governments. But I am getting about 45 years ahead of myself.

If you are not familiar with the history and haven’t seen the recent film, the Pentagon Papers documented the United States’ role in Indochina, especially Vietnam, from World War II until 1968. Daniel Ellsberg, a senior research associate at the Massachusetts Institute of Technology, leaked the documents to The New York Times. The Times, joined by The Washington Post, faced and fought a temporary restraining order from the Justice Department forbidding the (further) publication of the records.

With the benefit of hindsight, or maybe with hindsight bias augmented by my own strong sentiments about freedom of expression, it seems obvious to me that the newspapers had the much better argument. They proposed to finally tell the official truth about American involvement in Vietnam, as opposed to the government’s claim that publication of a record of government action that ended three years prior to disclosure was somehow a clear and present danger to the republic. The case was closer than it should have been, with the newspapers winning on a 6-3 vote of the high court.

The basic rules involving prepublication censorship had been set out much earlier, in the Supreme Court’s 1931 decision in Near v. Minnesota. The First Amendment necessitates a strong presumption against “prior restraint” on publication, the court ruled. With a few narrow exceptions, the government could not censor a publication in advance without violating the Constitution, even if the material published might be punishable after publication. Witness the complete failure of President Trump’s effort (which amounted to mere bluster rather than actual legal action) to prevent Macmillan from publishing Michael Wolff’s book “Fire and Fury,” and the reaction to the attempt from the publisher’s CEO. In the postwar years, there was also an accelerating trend away from censorship of films, which the courts considered outside the realm of First Amendment protection in the early days of the medium; it took until 1952 for the Supreme Court to acknowledge films are entitled to such protection in any degree.

The court did leave an exception to the presumption against prior restraint for information that could prove harmful to Americans or helpful to enemies in wartime – the classic example being publication of planned troop movements.

The really pivotal litigation over prior restraint came five years after the Pentagon Papers case, in Nebraska Press Association v. Stewart. This case centered on press coverage of a criminal proceeding, which the accused individual’s attorneys said was so extensive as to potentially infringe upon their client’s right to a fair trial. The trial judge entered an order forbidding publications to print or broadcast accounts of any confessions made by the accused to police. Several media outlets sued.

In the wake of some ghastly conduct by press and prosecutors in earlier notorious criminal cases, notably the Lindbergh and Sheppard trials, courts in the 1970s (and today) believed they needed to balance the right of public access to information with the right of an accused to a fair trial. But that power clearly stopped at the point where a judge tried to impose limits on what the press could report about an ongoing criminal case. In this instance, it was not a close call; the Supreme Court was unanimous in ruling in favor of the press. Chief Justice Warren Burger, in writing for the court, observed, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

But even in light of the decisive Nebraska Press Association ruling, the government and the trial courts have never really given up on trying to limit speech. They just tend to retreat strategically when confronting the possibility of losing a big case.

The biggest case of all arguably arrived at the end of the 1970s. The Progressive, a left-leaning magazine, had commissioned freelance journalist Howard Morland to draft an article about the secrecy surrounding nuclear weapons in the United States. The editors and Morland hoped to boost the environmental case for nuclear disarmament by demystifying how nuclear weapons functioned. Using publicly available sources, Morland pieced together a design for a hydrogen bomb, and made this the centerpiece of his article.

The Energy Department, which The Progressive had contacted to solicit comment on the article, tried and failed to dissuade the editors from running the piece. When the editors stood firm, the Energy Department filed a motion to suppress publication. Ironically, only a few years after the Pentagon Papers victory, major publications including The Washington Post supported the government’s case. Meanwhile, The Daily Californian obtained a letter from a group of scientists expressing concern about the information at issue in the Progressive case, tacitly confirming that Morland’s hypothetical bomb design was workable, a fact that had not been available to the public. After The Daily Californian published excerpts of this letter, the Energy Department obtained a court order to try to prevent further publication; the periodical published the full text of the letter anyway.

Rather than litigate its case against The Daily Californian and continue to litigate its case against The Progressive to extend the orders banning publication – which The Daily Californian, at least, had already disregarded – the government dropped the matter entirely.

Although judges almost never try to gag the press or other nonparticipants anymore, they routinely bar participants in proceedings from discussing a pending case. As applied to prosecutors, who are government officials conducting the public’s business, such restrictions are well-supported; there is a case to be made for restrictions on defense lawyers, who are considered officers of the court. But when it comes to defendants themselves, the judges are on pretty shaky ground. Today perhaps none is shakier than the ground on which U.S. District Judge Amy Berman Jackson rested her gag order against Trump’s former associates Paul Manafort and Rick Gates.

Jackson asserts that she has the power to prevent the defendants from publicly professing their innocence or criticizing the motives and methods of their prosecutors. She is most likely wrong – and my guess is that the Harvard-educated judge is well aware that she is.

Superficially, her gag order would seem meant to ensure both parties a fair trial. But prosecutors are not guaranteed a “fair” criminal trial under the Constitution; the Sixth Amendment’s guarantees are explicitly directed only toward the rights of those accused. The fact that defendants are not members of “the press” is constitutionally meaningless; the First Amendment addresses the right to speak as well as to publish. Journalists are not certified or licensed in this country in any case, and they have no greater or lesser rights than anyone else.

So Jackson has blustered and bullied the defendants into restricting their commentary about their cases, but she has not punished them for behavior that she views as infractions. Imposing sanctions would give the defendants a vehicle through which to challenge Jackson’s power to limit their speech. The judge appears to have about as little appetite to test that power as does most of the media to defend the free-speech rights of Trump associates that many revile.

I’ll give a critical two thumbs up to “The Post.” The movie captures a moment when two leading news organizations went after the story – not the people behind the story – in the public’s interest. They took a principled stand and vindicated that stand against heavy political and social pressure. In the process, the journalists of that era shaped my deep appreciation for how much our First Amendment freedom has given us, and how much it calls upon each generation to defend the right to report and to speak against those who claim, almost always wrongly, to represent some greater good.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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