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."