Fifty years ago today, the Supreme Court issued a historic ruling in New York Times Co. v. United States. Better known as the Pentagon Papers case, it has stood as a pillar of the American free speech tradition and the freedom of the press ever since. While the case ensured important legal protections for the press, the decades that followed tell a more complicated story.
The 6-3 decision allowed The New York Times, The Washington Post, and other publications to continue publishing excerpts from a 7,000-page Department of Defense report—leaked to the press by then-U.S. military analyst Daniel Ellsberg—on the inner workings of the U.S. government’s Vietnam War policy. Affirming the lower courts’ decisions, the Court held that the government had not met its burden to justify blocking the press’s publication of the document. But the Court did not rule out a prosecution of the press for publishing classified information; nor did it rule out prosecution of Ellsberg. And in fact Ellsberg was eventually indicted and tried under the Espionage Act, escaping likely jail time only because the judge declared a mistrial over government misconduct that included the Nixon administration's burglary of Ellsberg’s psychiatrist’s office.
In recent years, the government has made a practice of bringing Espionage Act charges against government insiders who supply classified information to the press—even in cases in which the information is of extraordinary importance to the public. The Obama administration brought more such cases than all previous administrations combined, and the Trump administration followed in its path.
Reflecting on the Pentagon Papers case in the current issue of Columbia Magazine, the Institute’s Jameel Jaffer said, “While we celebrate the strong protections the courts have extended to the press, the position of journalists’ sources has deteriorated. People who are tempted to disclose government secrets to expose abuses must now think about the possibility of a long prison term, even if their disclosures are entirely defensible: Technology makes it easier to track them down, and the government has used the Espionage Act much more aggressively.”
The prosecution of leakers under the Espionage Act raises both legal and moral questions. Jaffer commented: “Now it’s not uncommon for journalists’ sources to be prosecuted under this 1917 law that was supposed to be about spies. Morally it’s difficult to explain why journalists who publish classified secrets are given prizes, while the people who disclose those secrets are threatened with prison.”
It remains to be seen how the Biden administration will deal with those who disclose classified information in order to inform the public of matters of public concern. In our First Amendment Agenda for the New Administration, we called on the Biden administration to disclaim the use of the Espionage Act for the prosecution of journalists, sources, and publishers.
Both the Bush and Obama administrations relied on the Espionage Act to prosecute government insiders accused of providing sensitive information to the press. The Trump administration continued this trend, charging six individuals for disclosing information on matters such as possible war crimes committed in Afghanistan, racially discriminatory investigative practices within the FBI, and Russian interference in the 2016 election. It also charged Wikileaks founder Julian Assange under the Act, in the first use of the Act against a publisher. The use of the Espionage Act in these cases raises profound First Amendment concerns and threatens journalism that is crucial to our democracy. The Biden administration should reserve the Espionage Act for cases of classic espionage, and it should affirmatively disavow the use of the Act for the prosecution of journalists, sources, and publishers.
The Pentagon Papers case is rightly celebrated as a pillar of press freedom. But protecting press freedom today requires extending new protections to whistleblowers and limiting the use of the Espionage Act.
Lorraine Kenny is the Knight Institute’s communications director.