Three Felonies a Day

by Harvey Silverglate

  Although this victory for the press was a resounding reaffirmation of the prior restraint doctrine, it nonetheless contained the seeds (little noticed in the widespread media euphoria at the time) of potential future harassment. If cultivated, those seeds could someday prove every bit as potent a weapon against a free press as the prior restraint power that the Justice Department had sought unsuccessfully. Buried in the media’s historic victory were indications, supported by a majority of the court’s justices, that publication of classified information arguably bearing on national security could be punished by post-publication criminal prosecution under some of the most draconian statutes in the federal criminal code—including the espionage laws.

  A bit of nose-counting is required to see how and why a majority of the Pentagon Papers justices went out of their way to warn the newspapers of possible post-publication indictment. The phrase “went out of their way” applies because an analysis of situations in which newspapers would be exposed to criminal penalties was not necessary to resolve the specific prepublication injunction question before the Court. Instead, this discussion occurred in that part of the Court’s opinion called obiter dicta, or incidental remarks not essential to the justices’ ruling, and therefore not binding as precedent. Three justices (Byron White, Potter Stewart, and Harry Blackmun) went so far as to suggest that the Justice Department consider indicting the newspapers after publication. The Nixon administration’s failure to prevent publication, warned Justices White and Stewart (who would have approved a prior restraint order), “does not measure its constitutional entitlement to a conviction for criminal publication.”

  The White-Stewart opinion, approved by Blackmun, proceeded to list numerous statutes that arguably criminalized such publication, including the Espionage Act and a plethora of amendments over the years prohibiting communication of documents relating to the national defense. It also identified as proscribed the “willful publication” of any classified information concerning “communication intelligence activities” of the United States. Two justices (Burger and Harlan) did not specifically address the question of post-publication criminal prosecution of the newspapers, but their endorsement of the idea can be inferred from the fact that they approved of an injunction against publication in the first place. If the breach of national security represented by publication of the Pentagon Papers was sufficiently serious to justify the extraordinary remedy of an injunction, then it clearly would warrant post-publication prosecution.

  Still, it was not as if the five Supreme Court justices who opined that the newspapers might have committed a crime in exercising their constitutional right to be free of prior restraints, had reached a verdict condemning the newspapers as felons. They gave the press a bit of wiggle room. Most of the justices never said that the papers would be guilty. They merely hinted, in often dark tones, at the possibility, and at the government’s undoubted power to indict and seek convictions. Justice Stewart listed “provisions potentially relevant to these cases.” He “would have no difficulty in sustaining convictions under these sections on facts that would not justify…a prior restraint.” But later, in the same opinion, he stressed: “I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States.” It is reasonable to interpret Stewart’s hedging as less an expression of doubt as to whether the espionage laws applied to the publication of the Pentagon Papers, and more as the typical reluctance of any jurist to be seen as pre-judging a potential case.

  Equally foreboding was Sanford J. Ungar’s highly regarded 1972 book, The Papers & The Papers. He concluded that the main reason why President Nixon and Attorney General John N. Mitchell did not prosecute media targets who had published the Pentagon Papers was that, by that time, the Watergate scandal had broken, Nixon was on his way to impeachment or resignation, and Mitchell was on his way to indictment and federal prison.11 Later, Whitney North Seymour, the moderate Republican U.S. attorney for New York at the time of the Pentagon Papers imbroglio, wrote in his autobiography that the DOJ sent emissaries to enlist the cooperation of Seymour’s office in securing an indictment of the newspapers, and of individual employees. Fortunately for the reporters, Seymour responded “[n]ot in this District.”12 Soon thereafter, Watergate came to the media’s rescue.13

  Nixon’s Justice Department lost its attempt to get a court order barring publication of the Pentagon Papers, and it never brought criminal charges against the newspapers, publishers, editors, and reporters. However, Nixon’s prosecutors did bring espionage charges against Daniel Ellsberg, the former Rand Corporation employee who had smuggled a copy of the study to the Times and other newspapers. This was hardly unexpected. Ellsberg had clearly violated the terms of his security clearance and had conveyed admittedly classified documents to the news media. He was the leaker from within who blew the whistle, even though he was clearly prohibited by law from doing so. Ellsberg’s motives may have been admirable or considered patriotic among opponents of the Vietnam War and critics of the process by which America became involved in it, but his violation of the Espionage Act seemed more plausible than any supposed violation by the media. Ultimately, it was only the extraordinary campaign of unlawful activity undertaken by the administration—break-ins to obtain dirt on Ellsberg, a tawdry effort to buy the judge’s favor by inquiring into his interest in the position of FBI director, and other unethical and unlawful tactics—that tainted the prosecution and gave the trial judge cause to dismiss the indictment against Ellsberg in the middle of the trial.14

  Once before there had been a serious effort (or at least an urge accompanied by some degree of follow-through) to indict a newspaper for espionage. The Chicago Tribune, an isolationist newspaper that had opposed the Roosevelt administration’s efforts to involve the United States in the Second World War on the side of the British, published a page one article on June 7, 1942, just after the American Navy’s critical victory in the Battle of Midway. The report told the world (the American public, the Allied world, and anyone among the enemy who happened to keep up with the American press) that crucial information about the make-up and location of the Japanese naval fleet had been “well known in American naval circles several days before the battle began.”

  The Tribune story conveyed sufficient details (attributed to “reliable sources in…naval intelligence”) such that a Japanese reader with topranking intelligence connections would have realized that the Americans had cracked the all-important Japanese naval codes. By sheer good fortune, no one in Japanese military circles appears to have learned of the Tribune report, and the Japanese military continued using the same codes for the duration of the war. Regardless, the Roosevelt administration was furious and chagrined.

  Gabriel Schoenfeld, a writer on intelligence matters for Commentary magazine, reports that Roosevelt’s prosecutors backed down at the stage where they began to present evidence to a federal grand jury.15 To tell the tale to the 23 members of the grand jury to induce it to indict the newspaper would have entailed yet another security breach, for the Americans’ breaking of the Japanese codes would have had to be disclosed to that many more civilians, not to mention the stenographer who was taking notes of the grand jury proceedings and other ancillary participants. The Department of Justice and the Roosevelt War Department concluded that pursuing a prosecution of the newspaper posed too high a risk of further compromising national security, and the newspaper was let off the hook.

  It is widely believed in the legal community that one reason the Justice Department has been reluctant to indict the news media for espionage is the degree of risk that additional national security secrets would have to be disclosed at the public trial. This phenomenon has come to be known as “graymail,” the subtle or sometimes overt threat by a potential criminal defendant that, if indicted, he or she would discl
ose, or demand the disclosure of, additional government secrets necessary for his defense. Beginning in 1980, however, remedial legislation has severely limited a defendant’s ability to extract or disclose, publicly, classified information in the process of self-defense.16 It marked the trajectory of things to come.

  The press, as well as the leaker, may have emerged victorious from the Pentagon Papers case, but the seeds were planted for much more difficult times in the future. Soon after the imbroglio came to an end, two leading academic authorities set out to study the intersection between laws protecting national defense secrets and the right of the news media to publish or otherwise disclose such secrets. “The longer we looked” into the matter, wrote Professors Harold Edgar and Benno C. Schmidt, Jr., “the less we saw.” “Either advancing myopia had taken its toll, or the statutes implacably resist the effort to understand,” they noted in a highly regarded article reporting their findings, published in the Columbia Law Review in 1973.17 “We have lived throughout the present century with extraordinary confusion about the legal standards governing publication of defense information,” they concluded.

  Edgar and Schmidt’s message to journalists was actually more dire than a simple concern about the vagueness and breadth of the Espionage Act’s provisions, which allowed the act to be applied to what, even by then, had become an almost routine and widely accepted set of practices. Government officials or bureaucrats leaked what they wanted the public to know, and eager reporters and newspapers were able to inform (or titillate, as the case may be) their readers with “inside scoops.” With the Pentagon Papers clearly in mind, Edgar and Schmidt wrote:If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality. The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense.

  They argued that this unhealthy situation had managed to exist for many decades before the Pentagon Papers litigation because the relationship between the press and government officials had not been terribly hostile and adversarial. To the contrary, there was a “naturally symbiotic relationship.” Members of the legislative and executive branches did not pay much attention to the vagueness and breadth of these statutes as they related to the news media (in contrast to the statutes’ coverage of clandestine foreign espionage that was punished far more severely). The authors concluded that “the ambiguity of the current law is tolerable” and the limits untested, largely because of “the general discretion with which secret information” had been used.

  Something similar could have been said about the government’s interest in newsgatherers working with other kinds of sources. But almost immediately after the Supreme Court’s Pentagon Papers opinion, the government-press relationship began to fray. Around that time, three cases wended their way to the Supreme Court, each involving a journalist subpoenaed to give evidence in a criminal investigation. One of those cases involved a federal investigation of the Black Panther Party. New York Times reporter Earl Caldwell was ordered to appear before the federal grand jury with the notes and tape recordings of interviews he had conducted with party members. After gaining the Panthers’ confidence, Caldwell (whose access was probably facilitated by his being black) wrote feature-length articles detailing the highly controversial party’s activities and attitudes. Caldwell and the Times fought the subpoena, arguing that placing a reporter in the position of acting essentially as an informant or investigator for the government would cripple the trust between journalist and source that is essential to good reporting. They argued that the First Amendment’s press freedoms clause overcame the Department of Justice’s interest in using the media to augment the grand jury’s investigative powers.

  The 1972 case, Branzburg v. Hayes,18 proved divisive for the Supreme Court, which split 5-4 against the press. However, one member of the majority, Justice Lewis Powell, wrote a separate “concurring” opinion in which he qualified his support for the government. Referring to the majority’s argument that “harassment” (left undefined) of the press through abuse of the subpoena power would not be tolerated, Justice Powell argued that a journalist’s “asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” This balancing act should be undertaken, Justice Powell wrote, “on a case-by-case basis [that] accords with the tried and traditional way of adjudicating such questions.” This would protect “legitimate First Amendment interests,” he concluded. In other words, Powell believed that instead of setting out a broad and sweeping principle in favor of either the press or the government, courts should examine the specific facts of each case to see who has more compelling interests that need to be protected: the journalist’s need to protect the source or the prosecutor’s need to subpoena the evidence.

  Earl Caldwell never had to turn over his Black Panther material to the government because the grand jury’s term expired by the time the Supreme Court ruled. Nonetheless, his case became a precedent (law binding on lower courts). Congress has never enacted a so-called shield law to clarify the extent, if any, to which protection is accorded those whose news-gathering function would be impeded by a breach of the confidential relationship between journalist and source. As noted earlier in this chapter, “[in] addition to case law, 31 states and the District of Columbia have enacted statutes—shield laws—that give journalists some form of privilege against compelled production of confidential or unpublished information.”19 But because federal law trumps state law, a state-imposed newsgatherer’s privilege provides absolutely no protection from a federal subpoena.

  For years after Branzburg, an uneasy stasis developed in which the feds sought to subpoena reporters on occasion, but where the lower federal courts generally judged the validity of those subpoenas on the basis of Justice Powell’s balancing test. Subpoenas were issued to journalists pursuant to DOJ guidelines that put some burden on the prosecutor to justify his resort to compulsion.20 This uneasy but generally effective partial truce was for a time honored by both sides. The press provided information only on a last-resort basis and, even then, in limited fashion. The DOJ compelled such cooperation on a highly selective basis. A practical balance had emerged because it was far from clear whether, and to what extent, journalists or prosecutors would prevail in a legal contest to test the limits, or simply the practical meaning, of Justice Powell’s oracular but seemingly controlling concurring opinion.

  Still, since guidance is provided only on a case-by-case basis, with the decision as to whether to enforce a subpoena largely within the discretion of lower federal court judges who themselves have varying attitudes toward the press, the news media does not know where it stands in any given instance of reporting. The media therefore cannot intelligently weigh the risks it faces in doing what many reporters and editors consider to be their jobs. This is no more true anywhere than among journalists who work in the field of national security. This confusion was highlighted when the government sought in 1979 to muzzle a magazine for divulging national security secrets. In United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Ho ward Moreland,21 the government obtained a temporary injunction against the leftist magazine The Progressive (the injunction being the type of prior restraint severely limited in the Pentagon Papers case) to prevent publication of an article by activist Howard Moreland entitled “The H-Bomb Secret: How We Got It, Why We are Telling It.” Even though Moreland’s information had been compiled from public domain sources, including a children’s encyclopedia and the open-to-the-public government library at Los Alamos,22 the Department of Energy claimed the information fell under the secrecy provisions of the Atomic Energy Act of 1954. That statute more or less carved out of the more general Espionage Act the protection of secr
ets dealing with atomic and hydrogen weaponry.

  Two separate trials were conducted—one in public, the other in a closed courtroom known as an in camera proceeding. The defendants, Moreland and the editors of The Progressive, refused to accept security clearances and therefore were excluded from the closed hearings at their own trial. Their lawyers accepted such clearances but were placed in the absurd position of being forbidden from conveying information they learned to their clients.

  Once the hearings concluded, a Wisconsin federal judge ruled that “a preliminary injunction would be warranted even in the absence of statutory authorization because of the existence of the likelihood of direct, immediate and irreparable injury to our nation and its people.”23

  After the magazine appealed the prior restraint, Charles Hansen, an activist and computer programmer, published an open letter in Wisconsin’s local Madison Press Connection that served as a gloss to Moreland’s article. It claimed that other government scientists had put as much information about the hydrogen bomb into the public sphere as Moreland’s article had, and complained of the government’s hypocrisy in charging Moreland for publishing the information. As more information came out about the hydrogen bomb, the government, for its part, decided to drop the case, as “[t]here was no further point in protecting a secret that is no longer a secret.”24

  There also may have been some fear among prosecutors that appellate judges would issue a strong opinion overturning the trial judge’s prior restraint. The government now had a useful precedent, albeit decided by a lower court and hence resting on rather weak authority, on which it could rely. The case constituted the longest prior restraint in American constitutional legal history. Moreland’s article was published in the November 1979 issue of The Progressive, but not before Moreland and the magazine were put through the wringer.