This week's revelation that the Department of Justice has secretly obtained Associated Press telephone records from 2012 reaffirms the argument made by venerable First Amendment lawyer James C. Goodale last month: that "the fight for freedom of the press never ends even under a president previously thought to be friendly to the cause." In fact, Goodale has been increasingly critical of the Obama administration's pursuit of whistleblowers.
Goodale, with a career spanning over fifty years, is unusually well-placed to make this case. He, after all, was the general counsel at the New York Times when that paper published the Pentagon Papers in June 1971. His memoir Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (CUNY Journalism Press), published last month, provides an inside account of the intense struggle inside the publication of one of the most famous classified-document leaks in history.
When that great cache of secret documents about the Vietnam War came to the New York Times earlier that year, it was by no means assured that Arthur Ochs Sulzberger could be persuaded to take the risk of publishing their contents. Fighting for the Press provides probably the most detailed account ever written of the internal deliberations at the newspaper and the ensuing legal battle that ended with a 6-3 Supreme Court judgment that rejected prior restraint of publication. From the outset, by instinct and experience, Goodale sided with the reporters in favor of publishing the Pentagon Papers, but there were major obstacles to overcome, mainly the objections of the outside counsel, provided by the firm Lord Day & Lord. At the climactic meeting, Lord Day & Lord partner and former New York Times counsel Louis Loeb gave his professional opinion: "He said not only would it be a crime to publish classified information," Goodale writes, "but it would be a crime even to look at the Pentagon Papers because they were classified."
Goodale's persistence against the advice of these senior lawyers ultimately prevailed: Sulzberger agreed to go ahead, with the caveat that, "in the unlikely event the government moves in court to force us to cease publication, we will honor any court injunction." Nonetheless, Lord Day & Lord quit, and Goodale scrambled to recruit other lawyers, including Alexander Bickel of Yale Law School and Floyd Abrams, another First Amendment stalwart, to lead the case. In the weeks of contention about whether to publish, Goodale had been persuaded that the Espionage Act, with serious criminal implications, did not apply nor did the issue of secrecy classifications. "It was simply a First Amendment question," Goodale concluded, "and I had advised the Times to publish because it would win the case under the First Amendment." That turned out to be the right view.
In ruling for the press, Judge Murray Gurfein of the Southern District wrote, with exceptional eloquence, "The 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, an 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."
It has been forty years since the Pentagon Papers made its indelible mark on journalism, but Goodale contends that many of the same issues that were central then remain today. He sees the continuing WikiLeaks case as a second Pentagon Papers, except that so far, the government's attempts to stifle First Amendment rights have proceeded unchecked. Private First Class Bradley Manning, who provided vast amounts of the classified information in question to WikiLeaks founder Julian Assange, is in Goodale's opinion, a figure comparable to Daniel Ellsberg, the military analyst who gave the Pentagon Papers to the Times. "The publication of leaked information by WikiLeaks raises the same First Amendment issues as did the Pentagon Papers case," Goodale argues, and with criminal prosecution for publishing leaked material still a possibility, journalists have "to fight like a tiger and risk going to jail if necessary. Anything less diminishes the freedom of the press."
In an interview with the Columbia Journalism Review, responding to the assertion that the Obama administration has pursued more alleged leakers of national security information under the 1917 Espionage Act than all previous administrations combined, Goodale was furious. "Antediluvian, conservative, backwards. Worse than Nixon," he pronounced the current administration.
With the news of just how far the Justice Department is willing to go over an AP story about a foiled bomb plot, Goodale's brief has significant persuasive strength.
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