The Legal Battle Over Censorship

THE confrontation was historic. For the first time in U.S. history, the Government had gone to court to suppress publication of a major article in a major newspaper. In so doing, the Nixon Administration revived that ancient antithesis of a free press, the long discredited practice of "prior restraint." For its part, the Government claimed that never before had a newspaper published top-secret information that would endanger the national interest.

The drama began last Monday night after the New York Times had already published two installments of its massive report. After researching what action he could take. Attorney General John Mitchell finally sent a telegram to the paper, citing a provision in the espionage law that carries a possible ten-year sentence or $10,000 fine for any one convicted of willingly disclosing secret defense information that could jeopardize the safety of the country. The Justice Department chose not to file criminal charges because its main concern was to prevent publication of the documents. Instead, Mitchell asked the paper to stop printing the report and return all the material in order to avoid "irreparable injury" to the U.S.

The Problem of Proof

When the Times refused to comply. Assistant Attorney General Robert Mardian began the Government's legal attack by seeking a temporary restraining order--the prelude to a permanent injunction--in Manhattan's federal court. By chance, the case went before a recent Nixon appointee, U.S. District Judge Murray I. Gurfein, who was serving his first day on the bench. Last Tuesday the new judge issued the restraining order and set a Friday hearing to consider the injunction. Meanwhile, the Government showed concern about its key legal problem: how to prove the alleged injury. It asked Judge Gurfein to order the Times to turn over its "stolen documents" for examination. Though Gurfein barred any such "fishing expedition," the paper provided a list of the documents in its possession.

When the hearing (much of it in camera) began on Friday, a new development complicated the case. The Washington Post started to publish its own version of the Pentagon report. It did not print the classified memos verbatim as the Times had done, but it quoted liberally from them. The story also went out to the 345 client newspapers that subscribe to the combined Los Angeles Times-Washington Post news service. In addition, both the A.P. and U.P.I, picked up the story for the benefit of hundreds of other papers.

During the Manhattan hearing, Yale Law Professor Alexander Bickel, representing the Times, suggested that the Post's move had mooted the case against his client. As he saw it, the injunction was now academic and the Times itself had become the injured party. "The readers of the New York Times alone in this country are being deprived of the story," Bickel argued. That became even more evident when U.S. District Judge Gerhard Gesell in Washington rejected the Government's request for a temporary injunction against the Post. Lacking clear proof that the pre-1968 report was damaging to current national security, Gesell refused to give the Government the right "to impose a prior restraint on publication of essentially historical data." The Government's only remedy, he said, was to bring criminal charges against the paper after it published the material. He also warned the Post that it was in "jeopardy of criminal prosecution."

Some five hours later, a three-judge appeals court reversed Judge Gesell's ruling. By a vote of 2 to 1, the higher court halted further Post disclosures pending a full hearing in which the Government must prove the need for a permanent injunction. Meanwhile in Manhattan, the Government failed to prove that need to Judge Gurfein's satisfaction. Denying the injunction against the Times, Gurfein reported that Friday's secret hearing had produced no evidence of damaging data. "Without revealing the content of the testimony," he wrote, "suffice it to say that no cogent reasons were advanced as to why these documents, except in the general framework of embarrassment, would vitally affect the security of the nation." But the Times was still blocked from publishing the report until the U.S. Court of Appeals ruled on the case the following Monday. The U.S. Supreme Court may well have the final say on the subject.

If the Government ultimately prevails, it could compromise the basic principle of a free press. As far back as 1644, John Milton fought against prior restraint in Areopagitica, his famous protest to Parliament "for the Liberty of Unlicenced Printing." Hard-won democratic tradition insists that a free press is vital to an informed electorate: Anglo-American law has generally rejected any Government right to license a newspaper or censor its publication for any reason. William Blackstone, the great 18th century English jurist, stated the basic proposition: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matters when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press."

Artillery of the Press

This principle was embodied in the First Amendment, which shields virtually all free speech and printed matter. Jefferson, a target of bruising journalistic attacks, spoke ruefully of "the artillery of the press." But like most Presidents since, he recoiled from censorship and cheered the demise of the infamous Sedition Act, which had enabled the Government to jail critical newspaper editors. In various wars the Government has often tried to penalize a newspaper for something it has published --but only after the article appeared, not before. In 1931 the Supreme Court reinforced that principle in the case of Near v. Minnesota. Under a Minnesota statute, the state government shut down a scandal sheet that had printed articles lambasting official graft. The Supreme Court declared the law unconstitutional. Calling the closure "the essence of censorship," Chief Justice Charles Evans Hughes wrote: "That the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraints in dealing with official misconduct."

In the case of the New York Times and the Washington Post, the Government claims that it is simply trying to recover "stolen" documents that are vital to American security. It is the issue of security that colors the case and sets it apart from earlier precedents. In their more feverish moments, Government officials have argued that disclosure of the documents will enable the Communists to break American codes. They would only have to compare the deciphered cables in the Times with the coded U.S. messages they have on file for the same day. They might then acquire enough information to break up any number of secret U.S. missions and capture the agents. But experts tend to doubt this particular nightmare. Modern cryptography, they feel, is so sophisticated that enemies would face an all but insuperable task in trying to learn anything from the scattered documents in the Times.

Other Government objections are more solidly based. A certain amount of privacy is necessary both in dealings between agencies in Washington and in diplomatic negotiations with other nations. Officials may be less likely to be candid even in private if they are afraid that their remarks will be published. Many more will adopt Dean Rusk's practice of communicating orally and putting very little in writing. Says longtime Public Servant Averell Harriman: "If governments can't have private papers kept in confidence, I don't know how you can do business in government."

But the Government's case is weakened by the fact that it has removed so much information from the public eye in recent years. In the name of national security, it has often classified material that simply embarrasses it. Historians, for example, are not allowed access to State Department records of any event that occurred less than 25 years ago. A Court of Appeals decision last year upheld the right of the U.S. Army to prevent a reputable historian from examining files on the forced repatriation of Soviet prisoners after World War II.

Arbitrary Silence and Leaks

Meanwhile, bureaucrats freely use secret information to suit their own purposes; the U.S. Government almost runs on calculated leaks. Many important state papers, classified as secret, have been passed surreptitiously to favored members of the press. The Yalta Conference papers were one example, the Gaither report on national defense another. Just last week, a Defense Department study on the dovish side was leaked to the Washington Post. It revealed that the multiple warheads on the Soviet S59 intercontinental missile lack the accuracy to destroy U.S. ICBMs in a surprise attack. Once they leave Government service, innumerable officials bring out memoirs bristling with once-classified material intended to put the author in the best possible light.

No less than any other American institution, the press has a responsibility to consider the national interest when it covers the news. But it is also true that a free press is a vital part of the national interest. This is especially true of the U.S.: unlike Britain's Parliament, Congress does not have an automatic right to question members of the Executive Branch, who wield increasing power over the lives of Americans. Such scrutiny falls to the press, which must be unhindered in its honest endeavor to seek out the truth. This pursuit surely outranks the squeamishness and even the reputations of public officials--unless it can be proved beyond cavil that the national interest is seriously endangered. And that takes a lot of proving.

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