What happened at The Guardian could happen here

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.)

The trouble with prior restraint

In my latest for the Guardian, I argue that Superior Court Judge Merita Hopkins’ prior-restraint decision against WHDH-TV (Channel 7) last week is part of the broader culture war against journalism.

Putting Hopkins in her place

As I had hoped, Massachusetts Appeals Court Judge Andrew Grainger used some pretty strong language in explaining why he overturned Superior Court Judge Merita Hopkins’ prior-restraint order against WHDH-TV (Channel 7). The Boston Herald’s Jessica Heslam quotes from Grainger’s opinion:

As the judge noted in her order, the injunction is without doubt a prior restraint on speech.

[Channel 7] does not argue that it should be granted official access to the autopsy records; rather, it seeks to broadcast information already in its possession.

Simply put, the inability of the press to require the government to disclose information that is not part of the public record does not support a restraint on speech with respect to information already known to the press.

Indeed and famously, the presumption against prior restraints on free speech has prevailed even when the materials at issue are stolen and deal with issues of national security.

Grainger goes on to observe that, in this particular case, Hopkins’ error was compounded by the fact that her order didn’t even accomplish its objective — as it turned out, Channel 7, which had an exclusive, wound up being the only news organization not to report on the autopsy results.

Grainger’s tough words should stand as a warning to any judge who’s thinking of emulating Hopkins. It’s not enough that she has been overturned. It’s crucial that judges not abuse their power to hold up a story for a day or so and then punt to a higher court. If Hopkins isn’t embarrassed, she ought to be.

In the Boston Globe, columnists Joan Vennochi and Kevin Cullen weigh in. Cullen, joining those of us who believe Hopkins should have recused herself, observes that Hopkins hasn’t always been as solicitous of privacy rights as she was with respect to the fallen firefighters.

And, believe it or not, he brings it all back to Whitey Bulger. Boston is indeed a small town.

Herald admonishes Hopkins

The Boston Herald has a splendid editorial today on Judge Merita Hopkins’ unconstitutional order preventing WHDH-TV (Channel 7) from reporting on the Boston firefighters’ autopsy documents. After asserting that Hopkins is the first judge to exercise prior restraint against the media since the Pentagon Papers case in 1971, the editorial continues:

There is no more sacred corollary to the First Amendment than the prohibition against prior restraint — something which apparently eluded Judge Hopkins. The news media are perfectly willing to take our lumps after the fact — fines, civil suits, even getting thrown in jail for refusal to name sources. That is often the price we pay for exercising those freedoms.

I’m not sure about the Herald’s Pentagon Papers citation. At the very least, we know that a federal district-court judge in 1979 stopped the Progressive magazine from publishing an article purporting to show how to build a hydrogen bomb, even though the article was based on publicly available reference materials.

Even so, the fact that the Progressive case invoked the specter of millions of people dying serves to underscore the trivial, ludicrous nature of Hopkins’ special favor to the firefighters union. The overturning of her ill-considered order shouldn’t be the end of this. Good for the Herald for speaking out.

I would like to watch Channel 7’s Andy Hiller, who has a commentary titled “Free Speech v. Privacy Rights” on the WHDH Web site. Unfortunately, I couldn’t get it to load despite trying several different tricks on both a Mac and a Windows-based PC. Perhaps you’ll have better luck.

Hopkins’ ruling overturned

Superior Court Judge Merita Hopkins’ chilling order prohibiting WHDH-TV (Channel 7) from airing its exclusive on the autopsy reports of two Boston firefighters has been overturned. John Ellement of the Boston Globe writes that Massachusetts Appeals Court Judge Andrew Grainger set aside Hopkins’ order with little comment, but that we can expect “a lengthier explanation” later.

I hope that explanation includes an acknowledgment that Hopkins ignored well-established First Amendment doctrine. Hopkins exercised prior restraint — censorship — in its rawest form. I also wonder, along with the Phoenix’s Adam Reilly, whether Grainger will say that Hopkins — former chief of staff and legal counsel to Mayor Tom Menino — should have recused herself from even considering the case.

Judge Hopkins’ shocking decision

Superior Court Judge Merita Hopkins issued a shocking decision yesterday. By stopping WHDH-TV (Channel 7) from reporting on autopsy reports that allegedly show two Boston firefighters killed in an August restaurant blaze had abused drugs and alcohol, Hopkins violated the most basic of First Amendment protections — the protection against prior restraint. (Boston Globe coverage here; Boston Herald coverage here and here.)

The courts — right up to and including the U.S. Supreme Court — have consistently ruled that when a confidential document ends up in the hands of the media, there’s nothing that can be done about it. The legal responsibility is on the keepers of those documents not to release them; the media, by contrast, have no legal obligation not to report on them.

There are many cases I could point to, but consider that of Jim Taricani, an investigative reporter for WJAR-TV (Channel 10) in Providence. A few years ago Taricani broadcast videotapes of an aide to then-mayor Buddy Cianci taking a bribe. The tapes had been sealed by a federal judge, Ernest Torres, and thus it was illegal for anyone to give those tapes to Taricani — a perfect analogy to the situation involving the autopsy reports yesterday.

Taricani was in big trouble with Torres — but not for broadcasting the material. That, the judge made clear, was absolutely protected by the First Amendment. Instead, Torres insisted that Taricani reveal his source, because it was that person, not Taricani, who had violated the law. Taricani refused, and was sentenced to home detention. (The source, later revealed to be defense lawyer Joseph Bevilacqua Jr., was punished as well.)

It could very well be that the journalists who revealed the contents of the autopsy reports in the matter of the Boston firefighters will be pressured to give up their sources as well. Those of us who champion a free press ought to be concerned about that, but at least it’s well-established legal terrain.

Judge Hopkins, on the other hand, ought to be sent to her corner and forced to repeat 50 times: “Congress shall make no law … abridging the freedom of speech, or of the press.”

More: Here’s the text of Near v. Minnesota, the 1931 decision by the U.S. Supreme Court in which prior restraint was deemed a violation of the Constitution in almost all instances. The exceptions — national security, obscenity and incitement — are narrowly drawn, and obviously do not come within a mile of the Boston case.