“Congress shall make no law… abridging the freedom of speech.”
~ First Amendment to the U.S. Constitution
In the oral argument of the famous US Supreme Court cases known collectively
as the Pentagon Papers Case, the late Justice William O. Douglas asked a government
lawyer if the Department of Justice views the “no law” language in
the First Amendment to mean literally no law. The setting was an appeal of the
Nixon administration’s temporarily successful efforts to bar The New York
Times and The Washington Post from publishing documents stolen from
the Department of Defense by a civilian employee, Daniel Ellsberg.
The documents were a government-written history of the Vietnam War, which revealed
that President Lyndon B. Johnson and his secretaries of defense and state and
the military’s top brass materially misrepresented the status of the war to
the American people. Stated differently, they regularly, consistently and systematically
lied to the public and the news media.
Though LBJ was retired, Nixon did not want this unvarnished version of the
war he was still fighting to make its way into the public arena. The Nixon DOJ
persuaded a federal district court judge to enjoin the publication of the documents
because they contained classified materials and they had been stolen.
In a landmark decision, the court ruled that all truthful matters material
to the public interest that come into the hands of journalists – no matter
how they get there – may lawfully be disseminated. That does not absolve the
thief – though the case against Ellsberg was dismissed because the FBI committed
crimes against him during his prosecution – but it does insulate the publisher
absolutely against civil and criminal liability.
The Pentagon Papers Case is a profound explication of one of the great values
underlying the freedom of speech; namely, the government cannot lawfully punish
those who publish truths it hates and fears.
After his administration lost the case and the Times and the Post
published the documents, Nixon attempted to distinguish his presidency and administration
of the War from LBJ’s, but he did not challenge the truthfulness of the publications.
Regrettably, the Trump administration is pretending the Pentagon Papers Case
does not exist. It is manifesting that pretense in its criminal pursuit of international
gadfly and journalist Julian Assange, the founder of WikiLeaks.
Sometime in 2010, Assange and his colleagues began receiving classified US
Department of Defense materials from an Army intelligence officer now known
as Chelsea Manning.
Manning committed numerous crimes, for which she pleaded guilty, and was sentenced
to 45 years in prison. Her sentence was commuted by President Barack Obama,
whose Department of Justice publicly declined to prosecute Assange in deference
to the once universal acceptance of the Pentagon Papers Case and the numerous
court rulings that have followed it.
The Trump DOJ, however, sought and obtained two indictments of Assange, who
is now charged with 17 counts of espionage and faces 175 years in prison. Assange
is currently being held in a maximum-security prison outside of London. The
US has sought his extradition at a proceeding that began in a London courtroom
When lawyers blatantly reject well-accepted law for some political gain, they
violate their oaths to uphold the law. When government lawyers do this, they
also violate their oaths to uphold the Constitution. For them, there is no escaping
the Pentagon Papers Case. While the case turned on the concept of prior restraint
of speech, it clearly reflects the views of the court that it matters not how
the publisher obtained the secrets that he published.
WikiLeaks revealed – in partnership with major international publications,
including the two involved in the Pentagon Papers Case – videos of American
troops murdering civilians and celebrating the murders (a war crime) as well
as documentary proof of American complicity in torture (also a war crime).
Just as in the Pentagon Papers revelations, neither the Obama nor the Trump
administration has questioned the truthfulness of the WikiLeaks publication
– even though they revealed murderous wrongdoing, duplicity at the highest
levels of government and the names of American intelligence sources (which some
mainstream publications declined to make known).
Assange fears that he cannot get a fair trial in the United States. The government
says he can and will. When the government suddenly became interested in fair
trials remains a mystery. Yet, arguments about fairness miss the point of this
lawless prosecution. A journalist is a gatherer and disseminator of facts and
opinions. The government’s argument that because he communicated with Manning
and helped Manning get the data into WikiLeaks’ hands, Assange somehow crossed
the line from protected behavior to criminal activity shows a pitiful antipathy
to personal freedom.
Democracy dies in darkness. The press is the eyes and ears of an informed public.
And those eyes and ears need a nose, so to speak. They need breathing room.
It is the height of naiveté to think that Ellsberg just dropped off the
Pentagon Papers at the Times and the Post, without some coordination
with those publications – coordination that the courts assume exist and implicitly
Might all of this be part of the Trump administration’s efforts to chill the
free speech of its press critics – to deny them breathing room? After all,
it has referred to them as “sick,” “dishonest,” “crazed,”
“unpatriotic,” “unhinged” and “totally corrupt purveyors
of fake news.”
Yet the whole purpose of the First Amendment is to assure open, wide, robust
debate about the government, free from government interference and threats.
How can that debate take place in darkness and ignorance?
If “no law” doesn’t really mean no law, we are deluding ourselves,
and freedom is not reality. It is merely a wished for fantasy.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano has written
seven books on the US Constitution. The most recent is Suicide
Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to
American Liberty. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit www.creators.com.
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Author: Andrew P. Napolitano
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel and anchor of FreedomWatch on Fox Business Network. His most recent book, It Is Dangerous To Be Right When the Government Is Wrong, was released in October 2011.
View all posts by Andrew P. Napolitano