A New York state judge’s ruling against the Times imperils First Amendment rights

2009 photo by Dan Kennedy

Previously published at GBH News.

What is New York Supreme Court Judge Charles D. Wood thinking?

On Christmas Eve, Wood issued an order forbidding The New York Times from publishing confidential documents it had obtained detailing legal advice given to Project Veritas, a right-wing organization that specializes in hidden cameras and infiltration. Moreover, Wood ruled that the Times would have to return the documents to Project Veritas and destroy any electronic copies that it held.

“In defiance of law settled in the Pentagon Papers case,” said Times publisher A.G. Sulzberger in a statement, “this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”

The decision follows a temporary ruling Wood issued more than a month ago to stop the Times from making further use of the documents. The Times appealed that ruling, but an appellate court declined to act. (On late Tuesday, a state appeals court ruled that the Times does not have to turn over or destroy the documents in its possession, at least for now.)

Here’s some background. Last spring, Project Veritas, headed by the notorious James O’Keefe, sued the Times for libel, claiming that the Times’ reference to two Veritas videos about voter fraud as “deceptive” was false and defamatory.

Then, in an unrelated matter, the Times in November published a story following up news that federal officials were investigating Veritas’ possible involvement in stealing a diary kept by Ashley Biden, President Joe Biden’s daughter. In that story, the Times quoted from confidential documents that Veritas had received from its lawyers on how to carry out its dubious stunts while avoiding legal trouble. Those documents predated Veritas’ lawsuit against the Times by several years. The Times contends they were obtained through its reporting, not through pretrial discovery in the libel case.

And by the way, don’t be fooled by Wood’s lofty title — there are 62 supreme courts in New York State. He is, in fact, a trial-court judge, elected to that position in 2009 after serving as an aide to former state senator Nicholas Spano, a Republican who pleaded guilty to federal tax-evasion charges in 2012.

But you don’t have to have a sterling judicial pedigree to know that if the First Amendment stands for anything, it stands for the proposition that the government may not ban anyone from publishing or broadcasting. Yes, there are certain narrowly drawn exceptions; serious breaches of national security, incitement to violence and obscenity may all be censored.

Still, the rule against prior restraint is robust enough to have led the Supreme Court to allow the Times and The Washington Post to publish the Pentagon Papers, the government’s own secret history of the Vietnam War. It also led a federal judge in 1979 to agonize over a decision to prohibit The Progressive, a small left-wing publication, from publishing an article on how to build an atomic bomb.

“A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” U.S. District Court Judge Robert Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” (Warren imposed a temporary restraining order and told The Progressive and the government to work out a compromise. That order was rendered moot when a different publication ran a similar article.)

No such agonizing over the prospect of muzzling the press is evident in Wood’s opinion. Take, for instance, his ruling that the information contained in the confidential documents the Times reported on are not a matter of “public concern.” A finding to the contrary might have opened the door to the Times’ publishing the documents despite Wood’s erroneous assertion that the attorney-client privilege is at stake.

“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half.”

This is Wood setting himself up as editor, deciding what’s newsworthy and what isn’t. The documents concerned advice from Project Veritas’ lawyers on how to avoid legal trouble when carrying out its undercover operations. Surely that’s of public concern, especially since the courts have set the threshold for newsworthiness at a very low level precisely so that they can avoid playing editor.

But the larger issue here is Wood’s breathtakingly expansive definition of what’s covered by the attorney-client privilege. It’s true, of course, that if the Times had simply reported on the contents of documents Project Veritas had turned over to the Times’ lawyers during pretrial discovery in the libel case, the judge would be justified in his outrage. But there is no evidence to contradict Sulzberger’s assertion that the documents were obtained in the normal course of reporting — as Wood concedes.

“There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas,” Wood wrote. “That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its ‘newsgathering effort.’”

Wood follows that up with a weird, gratuitous suggestion that perhaps the Times obtained the documents through bribery. And then, in ruling against the Times, Wood wrote:

“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.”

In other words, the Times is not free to publish or report on the documents in question even though it claims to have obtained them in the normal course of reporting, and even though Wood admits there is no evidence to the contrary.

This is an outrage against the First Amendment. “The opinion is jaw-dropping in its constitutional illiteracy,” wrote Ruth Marcus in The Washington Post.

Added Stephen J. Adler and Bruce D. Brown of the Reporters Committee for Freedom of the Press: “The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just ‘chill’ speech on public affairs, they ‘freeze’ it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.”

What’s worse is that Wood’s ruling provides an incentive for the target of investigative reporting to sue the news organization and then use that suit to shut down any further reporting by claiming attorney-client privilege. Theodore J. Boutrous Jr., a media lawyer whose clients include CNN, put it this way in an interview with the Times:

“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process. The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”

The Times says it plans to appeal Wood’s decision. Good luck with that. Although it presumably would take a few years, eventually the case might make its way before the U.S. Supreme Court. With a right-wing majority, the court could, if it chose, inflict incalculable damage.

We should all hope that Wood’s assault on freedom of the press is halted at the state level — and that this threat to the First Amendment fades to the obscurity it deserves.

Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

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As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

Why we should be concerned about a judge’s decision to censor Mary Trump’s book

Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.

According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”

But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.

This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.

By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).

It seems to me that a reprimand is in order.

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Danny Schechter’s legacy and the passion of Julian Assange

Danny Schechter in Almaty, Kazakhstan. Photo (cc) 2009 by Dan Kennedy.

Previously published at WGBHNews.org.

The news was disorienting: WikiLeaks founder Julian Assange, whose alleged misdeeds range from sexual assault to acting as a Russian intelligence asset, would be honored with an award named after the late Danny Schechter, one of my journalistic role models.

Assange was recently charged under the Espionage Act for his part in obtaining and publishing secret U.S. documents supplied to him by Chelsea Manning, a former Army private. According to Rory O’Connor, Schechter’s longtime business partner, that is precisely why Assange has been named this year’s recipient of the Danny Schechter Global Vision Award for Journalism and Activism.

Schechter, who died four years ago, spent a long and productive career as a left-wing journalist, from his days as the WBCN “News Dissector” in Boston during the 1970s to a respected documentarian and author about issues such as apartheid, economic injustice, and media reform. Schechter was someone I probably checked in with a couple of times a year. In 2009, he and I covered a protest against internet censorship that broke out while we were attending a conference in Kazakhstan. Given all that, I wasn’t sure I was on board with O’Connor’s reasoning.

“The Assange case represents a threat not only to freedom of expression but also to the heart of American democracy itself,” O’Connor wrote. And in a retort to those who argue that Assange is not a journalist, O’Connor observed that Assange has in fact engaged in journalism of a sort: “Much of what he does, after all, involves selecting, editing, verifying and even contextualizing news material.”

Trouble is, Assange was a lot easier to defend back in 2010, when WikiLeaks and Manning were exposing American wrongdoing in the Iraq war, including looking the other way as Iraqi forces tortured prisoners. At that time, Assange appeared to be an honest exemplar of radical transparency. In those days I wrote a weekly column for The Guardian. And I argued that the Obama administration, which was reportedly looking into bringing charges against Assange on the theory that he had colluded with Manning, would be endangering First Amendment protections for mainstream news organizations.

I didn’t see then, and I don’t see now, how any news organization can be said not to have colluded with a source when it receives leaked documents. Didn’t the Times and The Washington Post collude with Daniel Ellsberg when they received the Pentagon Papers from him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?

The Obama administration, fortunately, decided to back off. But that was a long time ago. Assange, always a problematic figure, looks a lot worse today than he did then. In addition to extremely serious sexual assault charges against him and his role in Russia’s internet campaign against Hillary Clinton in the 2016 election, Assange spent years evading the authorities by holing up in the Ecuadorean embassy in London, where he reportedly degenerated into the guest from hell, paying little attention to his personal hygience and possibly even neglecting his cat.

All of which, counterintuitively, is why the Danny Schechter Award may actually make sense. President Trump has been trying to delegitimize journalism since he launched his campaign four years ago, denouncing news organizations as “the enemy of the people” and vowing to end some libel protections for the media. Seen in that light, Assange is the ideal conduit through which to undermine freedom of the press. If you don’t want to defend Assange, you may not get the chance to defend The New York Times. If investigative reporting is redefined as a criminal act, who will hold the powerful to account?

When Assange was first charged several months ago it looked like the Trump administration was deliberately avoiding the most provocative course of action. Assange was not initially charged under the Espionage Act, but rather was accused of actively helping Manning steal documents — an activity that most definitely is not protected by the First Amendment.

Even so, there were hints of what was to come. Mathew Ingram, writing at the Columbia Journalism Review, pointed out that the FBI’s affidavit described behavior on Assange’s part such as taking steps to keep his relationship with Manning secret, including the use of encrypted messaging. These days, many top news organizations actively solicit secret documents through encrypted portals. Here, for example, is The Washington Post’s. If Assange broke the law, what about the Post and all the others?

Ingram added: “The affidavit also says Assange collaborated with Manning on ‘the public release of the information’ — in other words, publishing. It goes on to allege that Assange broke the law in part by receiving classified documents without a security clearance, something investigative journalists often do.”

The threat became more ominous last month, when the Trump administration added Espionage Act charges to the case against Assange. The government has never followed through on threats to use the World War I-era law to punish news organizations for publishing classified documents, despite threats to do so after the Pentagon Papers were made public and after The New York Times reported on the George W. Bush administration’s secret (and probably illegal) domestic spying program.

Now Assange has emerged as a test case — and if he loses, it’s hard to imagine why our leading news executives would be exempt. “For good reason, press-rights advocates are far more alarmed now than they were last month when Assange was initially indicted,” wrote Margaret Sullivan, the Post’s media columnist. She added: “What’s alarming about the indictment is the way it would criminalize some of the basic functions of newsgathering and publication.”

In his essay announcing the Danny Schechter Award, O’Connor wrote, “The charges against Assange make the ultimate targets of his prosecution clear: journalists worldwide. Prosecutors are using the case against him to mask a blatantly political campaign to limit all journalists — a cornerstone of the Trump agenda often expressed by the president himself.”

Given all that, I’m not worried about Danny Schechter’s legacy being sullied. In fact, he’d probably love the idea of using an award named after him to shine a spotlight on Assange. Saints and sinners alike deserve the protection of the First Amendment — and sinners, after all, are more in need of it.

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Julian Assange, freedom of the press, and the meaning of journalism

Julian Assange. Photo (cc) 2011 by The Naked Ape.

The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?

As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.

The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.

Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.

WikiLeaks and the First Amendment

An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom

By Dan Kennedy | The Guardian | Dec. 16, 2010

President Obama has decided to pursue a dangerous strategy that could cause irreparable harm to freedom of the press as we know it. According to Charlie Savage of The New York Times, Attorney General Eric Holder is investigating the possibility of prosecuting WikiLeaks founder Julian Assange in connection with the 250,000 diplomatic cables stolen — according to the government — by army private Bradley Manning.

Read the rest at The Guardian. And talk about this post on Facebook.

Judge extends censorship in plastic-handgun case

In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.

Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.

Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”

And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.

Massachusetts Attorney General Maura Healey, who joined the suit, is celebrating Judge Lasnik’s ruling. Healey, I should note, is a two-time winner of a New England Muzzle Award from WGBH News for her less-than-vigorous support of the First Amendment.

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In ‘The Post,’ Spielberg offers a hopeful message for our Trumpian times

Spielberg’s Nixon is the proto-Trump. Photo via Wikimedia Commons.

Previously published at WGBHNews.org.

Movies about historical events are often meant to tell us more about the present than the past, especially in the hands of an overly earnest director like Steven Spielberg. His 2012 film “Lincoln,” for instance, depicted a president who didn’t let his high principles get in the way of some down-and-dirty dealmaking with recalcitrant members of Congress. You know, just like Obama should have been doing.

Spielberg’s latest, “The Post,” is more deft and subtle than “Lincoln.” Still, it serves as much as a commentary on current-day events as it does as a drama about the press and the Pentagon Papers. Then as now, The New York Times and The Washington Post were competing to expose high-level government wrongdoing. Then as now, their nemesis was a vindictive president who hated the press. The message, at least for the anti-Trump audience that is most likely to be enthralled by “The Post,” is that journalism will save us. Help is on the way.

The Pentagon Papers were the government’s secret history of the Vietnam War. The documents showed that President Lyndon Johnson and other administration officials were aware that the war was going badly even as they publicly professed optimism — and thus allowed American soldiers to be killed for what they knew was a lost cause. This was especially galling to Richard Nixon, who was president in 1971, when the documents were leaked, and who was prosecuting the war with cruel gusto. The Times got and published the papers first, and Times partisans are grousing that Spielberg should have made a movie about that instead. For instance, Roy Harris wrote for Poynter that “the overall story of the Pentagon Papers as journalism seems somehow twisted by the Post-centric focus of the movie.”

Critics are missing the point. The Times gets its full due in “The Post” for breaking the story. But Post executive editor Ben Bradlee’s fierce attempt to play catch-up, and publisher Katharine Graham’s courageous decision to publish the documents against the advice of her lawyers and advisers, was a signal moment in American journalism, establishing the Post as the near-equal of the mighty Times.

The script for “The Post” reads like it was ripped from the pages of Graham’s autobiography, “Personal History,” and from David Halberstam’s magnum opus about The Washington Post and several other media institutions, “The Powers That Be.” The Post of 1971 was a financially marginal regional paper with more in common with The Boston Globe or The Philadelphia Inquirer than with the Times. Graham decided to raise much-needed cash by reorganizing the paper as a publicly traded company. The crisis over the Pentagon Papers blew up at exactly the same moment, putting the Post in real danger: if it published the documents and was found to have broken the law, its initial public offering could go down the tubes and the company could go out of business.

Graham made her decision after being called away from a social event, a sequence that is depicted faithfully in the movie. “Frightened and tense, I took a big gulp and said, ‘Go ahead, go ahead, go ahead. Let’s go. Let’s publish,’” Graham wrote in “Personal History.” And she quotes Bradlee as saying later:

That was a key moment in the life of this paper. It was just sort of the graduation of the Post into the highest ranks. One of our unspoken goals was to get the world to refer to the Post and The New York Times in the same breath, which they previously hadn’t done. After the Pentagon Papers, they did.

The U.S. Supreme Court ended up vindicating both the Times and the Post by ruling, 6-3, that the Nixon administration’s attempts to prevent publication were an unconstitutional abridgement of the First Amendment. As my WGBH News fellow contributor Harvey Silverglate wrote in The Boston Phoenix some years ago, that didn’t stop Nixon from attempting to prosecute the newspapers under the Espionage Act, a relic of World War I that is still with us. But Nixon’s efforts went nowhere.

“The Post” is not an eat-your-broccoli movie. It’s highly entertaining. Tom Hanks is terrific as Bradlee, and Meryl Streep turns in an accurate Graham, though it sometimes feels more like an elaborate impersonation than a fully realized role.

Streep’s Graham is the center of a subplot that, again, has as much to do with 2018 as it does with 1971. Although Graham had been leading the Post since 1963, when her husband, Phil Graham, shot himself in an apparent suicide, in “The Post” we see her grow and, finally, embrace her leadership role in a way that she hadn’t before. It’s a tale of female empowerment that is especially relevant right now. As my Northeastern colleague Meg Heckman wrote for USA Today:

In a refreshing departure from the shallow, oversexualized way Hollywood typically depicts women in journalism, Meryl Streep portrays Graham as a serious newspaperwoman navigating complex social and political challenges. Her role should be a blueprint for a new kind of popular culture, one that helps repair a climate where, as the #MeToo movement has revealed, media companies routinely get away with allowing sexual harassment and assault to fester.

One of my favorite characters in “The Post” is Nixon himself, whom we see back-to through a White House window, talking on the phone and threatening his enemies in the press. (We hear actual tapes of the Trickster.) And that brings me back to what “The Post” is really about.

In Donald Trump we have a president who hates the media and threatens his enemies like none since Nixon. Like Nixon, Trump is being investigated on multiple fronts — by House and Senate committees, by a special counsel, and by The New York Times and The Washington Post. Spielberg, in effect, is offering us a soothing message: Our institutions work. Look at what happened the last time.

But the past is not always prologue. The world of the 1970s was one without Fox, without alternative facts, and without a president who denounced press coverage he didn’t like as “fake news.” This time around, not only is it unclear whether the truth will be revealed — it’s even more unclear whether it will even matter.

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Ben Bradlee and the importance of private ownership

471661184_d792d22c04_oPreviously published at WGBHNews.org.

Several months ago I re-read what David Halberstam had to say about The Washington Post in “The Powers That Be,” his monumental 1979 book about the rise of the Post, the Los Angeles Times, Time magazine and CBS News.

As we celebrate the life and career of the Post’s legendary executive editor, Ben Bradlee, who died on Tuesday, it’s worth pondering the economic environment that made Bradlee’s charismatic brand of leadership possible: private ownership.

The Meyer and Graham families had been the sole owners of the Post since the 1930s. But in the early 1970s, publisher Katharine Graham decided to take her newspaper public. Here’s Halberstam:

So Katharine Graham went public. In the end she did it because she felt she had no choice. It was that or sell one of the television stations, which would provide instant cash but would narrow the base of the company. During the months that they prepared the stock issue [Post lawyer and Graham confidant] Fritz Beebe, whose office was in New York, talked frequently with the Post’s New York financial writer, Phil Greer, who was unusually knowledgeable about the workings of the market. Greer was pessimistic about the entire enterprise, and consisted it a drastic mistake. Wall Street, he believed, was a brutal partner, it was not interested in journalism or good writing, and it demanded not just profit but a relentless kind of profit; Wall Street wanted systems, and cost accounting, and a monitoring of expense accounts and higher productivity and lower expenditures. None of these things had anything to do with talent or covering the news. Greer did not believe that the Post could embrace Wall Street without changing. The Post would inevitably become, if not far more conservative on its editorial page, then far more conservative as an institution. When editors thought about covering stories or opening bureaus they would think of the accountants and the costs. What had made certain family-owned papers like The New York Times and the Postspecial in the past was a certain obliviousness to materialism, the power of the editors over the accountants, a willingness to settle for less than maximum profit. Now, however, simply being in the black would not be enough, the margin of profit would have to be larger, 15 percent or more a year to satisfy the stockholders. That was a powerful weapon for the Post’s accountants, for they could go into budget meetings and when editorial expenses were being discussed they could argue, not that the paper was losing money, but that the margin of profit was too low and that the stock might fall. The stock fall? What editor could argue back against that? Was a bureau in Johannesburg worth endangering the stock? The old paternalistic norms, some of them good and some of them bad, would be replaced by new modern computerized ones, some of them good and some of them bad, and all of them cold.

The decision had instant ramifications after the Post joined The New York Times in publishing the Pentagon Papers in 1971. As Halberstam writes, the Post could have been charged with a federal crime, which would have had serious negative consequences for the paper’s upcoming stock offering. Yes, the Post was on the verge of becoming a public company. But because Graham and Bradlee continued to run it as a highly personal institution, they held firm and went to press. Here’s Halberstam again:

Watergate, like Vietnam, had obscured one of the central new facts about the role of national journalism in America, a fact that helped explain the not entirely latent discontent at places like the Post and CBS and The New York Times, rich and powerful and successful as they were. Only very rich, very powerful corporate institutions like these had the impact, the reach, and above all the resources to challenge the President of the United States. Yet the price of that external influence was high to those institutions in an internal sense. The bigger and richer and more powerful the journalistic institution, the more bureaucratic its way of dealing with its own best people, the more distant and aloof its management. The Post was now part of a big rich corporation, 452nd in the Fortune list. Its standards and goals now resembled, not the standards and goals of small old-fashioned newspapers, but those of the other giant corporations on that list. For a highly individualistic profession like journalism there was an inherent contradiction in this. Even those Post reporters who were not entirely enamored of Bradlee, who thought his attention span too short, who objected to the fact that he sometimes preferred sexy stories to what they considered more serious ones, and who thought him too star-oriented, nonetheless welcomed his presence, highly personalized as it was, as a defense against the corporation. They believed that he was buying the newsroom time, that his connect to Mrs. Graham was so close that he could secure freedom of a sort that his successor could not.

In fact, the Post was often characterized as less engaging under Graham’s successor, her son Donald, and the executive editor who followed Bradlee, Len Downie. Whether that’s fair or not, there’s no disputing the reality that public ownership finally met its limits in 2013, when Don Graham sold the Post to Amazon.com founder Jeff Bezos.

Under executive editor Marty Baron, the Post is experiencing a revival, as Baron gets to expand coverage with the money that billionaire Bezos has proved willing to invest in the paper.

The New York Times Co.’s sale of The Boston Globe to financier John Henry in 2013 returned that paper to private ownership as well — and Henry and editor Brian McGrory have expanded the Globe’s coverage of politics and the Catholic Church, among other areas.

Neither Bezos nor Henry has been entirely benevolent. Bezos is trying to cut pension benefits for his employees. Henry has made reductions here and there, and some staff members continue to endure unpaid furloughs first instituted by the Times Co.

Yet there’s no question that both the Post and the Globe are better off in wealthy private hands than they were under the ownership of publicly traded corporations. News organizations are unique. The relentless focus on the bottom line that Wall Street demands inevitably hurts the journalism, which, in turn, harms the bottom line as the audience is driven away. Private owners can focus on the long term in a way that publicly owned corporations simply can’t.

They say it’s better to be lucky than good. Ben Bradlee was both. And we were the beneficiaries.

Photo (cc) by John C. Abell and published under a Creative Commons license. Some rights reserved.

 

On Greenwald, Kinsley is both right and wrong

Michael Kinsley
Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes
Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)