National Security & the Press

The Government’s prime responsibility is to keep its citizens safe, and that sometimes might entail keeping military and diplomatic secrets from the people. On the other hand, the press’ prime constitutionally-based duty is to inform the citizenry about what its Government is doing, particularly where life, limb and huge outlays of expenditures are at risk. This program explores the tension between the Government’s interest in National Security and the First Amendment values in the free flow of information.

This tension and conflict undergirds the tortuous day-to-day relationship between Government and the media, which has come to full bloom at various times in our history. The most significant such battle came in 1971 in the context of the Vietnam War when The New York Times started publishing the Pentagon Papers, and the Nixon Administration went to court a few days later to seek a prior restraint and stop publication. More recently, this issue has come to the fore with the Wikileaks document dump of materials about the Iraq and Afghanistan wars and US diplomatic files, and the Edward Snowden disclosures.

This program focuses on the law that has developed in this area, and the more practical way this tension has played out in more recent iterations. Mr. Freeman, the newsroom counsel for The New York Times for over 30 years, also gives the historic backstory of U.S. v. New York Times, The Pentagon Papers case which was ultimately decided by the Supreme Court and set the standard for obtaining a prior restraint which lives to this day. In addition, he discusses the possibility of prosecuting the media for publishing illegally leaked material, a strategy, using the Espionage Act, which was suggested by a number of justices in the Pentagon Papers case  -  and an issue which has come up often recently, from the internal Sony documents to the recent Wikileaks disclosures of Hillary Clinton campaign staff emails.

Learning Objectives:

1. Learn the law as applied to prior restraints on publication, and criminal prosecution for publishing illegally leaked documents, including the possible media defenses
2. Consider whether the law or the realities are or should be different in the Internet Age
3. Discuss and ponder the practicalities in these situations, and how the law merges and differs from journalistic ethics and responsibility