Leading First Amendment lawyer James C. Goodale believes President Obama should take a lesson from a page in American history--the Pentagon Papers case--and rethink his approach to conflicts between national security and the First Amendment. Goodale, the author of the new book Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, delivered the 28th Annual Silha Lecture on Oct. 16, 2013 at the University of Minnesota's Cowles Auditorium.
"All of a sudden in the last six months, all of the issues in that case have come to life and have been part of the news cycle," Goodale, the former vice chairman of The New York Times who served as the Times' general counsel during the Pentagon Papers litigation in 1971, said. Goodale has also been a partner in Debevoise & Plimpton LLP in New York City, served as chairman of the Committee to Protect Journalists, and taught at Yale, NYU and Fordham law schools.
Goodale shared stories of the litigation surrounding the Pentagon Papers case and his thoughts on recent conflicts between national security and the First Amendment during the lecture, titled "The Lessons of the Pentagon Papers: Has Obama Learned Them?" The lecture and a question-and-answer session drew an audience of more than 300. A book signing followed the lecture.
The Pentagon Papers case holds two important lessons, according to Goodale. First, government officials "ignore the First Amendment at their peril." Second, the public "should not buy claims of national security made by the government hook, line and sinker."
Goodale began by providing an overview of the Pentagon Papers case, New York Times Co v. United States, 403 U.S. 713 (1971), and the circumstances surrounding it. The Pentagon Papers were a classified 47-volume history of American relations with Vietnam. Daniel Ellsberg, a military analyst, believed the American people needed to see them, and so he shared them with various newspapers around the country. The government tried to stop the Washington Post and The New York Times from publishing, leading to the case that reached the Supreme Court.
"It's a case for the ages," Goodale explained, "because unless the government can show directly, immediately and irreparably that harm will happen to national security, then the government loses." He explained that the government failed to meet this heavy burden. The Supreme Court allowed the publication of the Pentagon Papers to go forward, providing American citizens with more information about relations with Vietnam than they had ever seen before.
Goodale emphasized that the Pentagon Papers' lessons remain relevant today. He discussed this year's revelations about the NSA surveillance programs and the Obama administration's prosecution of leakers. He also noted that the Obama administration has indicted seven individuals for leaking classified information. All previous administrations put together had indicted just three.
The subpoena of New York Times reporter James Risen, indictments of leakers such as Edward Snowden and the possible indictment of Wikileaks founder Julian Assange all contribute to Goodale's concerns.
These events haves "created an atmosphere of fear in Washington, which has made it very hard for the press to gather news and write stories," Goodale explained, citing a recent report from the Committee to Protect Journalists. He offered opinions about many of the recent cases of reporters and leakers facing legal trouble.
"In every instance that I know about, President Obama has chosen to favor national security over the First Amendment," Goodale said. "But isn't the lesson of the Pentagon Papers just the reverse?" Goodale concluded that "President Obama has not learned the lessons of the Pentagon Papers."
Goodale's hope is "that there will be some real debate . . . and . . . both sides of the aisle can see the issue with national security." Presently, he said he does not "see any end in the First Amendment fracas that Obama has geared up. He has ignored the First Amendment at his peril."
A video of the lecture is available on the Silha Center website at
silha.umn.edu. Silha Center activities, including the annual lecture, are made possible by a generous endowment from the late Otto Silha and his wife, Helen.