How Would Graham and Bradley's WashPo Deal With Snowden and Manning?

Daniel Ellsberg, publisher of 'The Pentagon Papers,' at a press conference in the 1970s. Hulton Archive/Getty

This article was first published on the Hoover Institution site.

It may be somewhat uncharitable to criticize "The Post," the new movie directed by Steven Spielberg and starring Meryl Streep and Tom Hanks.

Streep plays the somewhat awkward Katharine Graham, the publisher of The Washington Post , and Hanks plays Ben Bradlee, her seasoned executive editor.

The film scores 88 percent on Rotten Tomatoes, and received a rave review from Ann Hornaday of The Washington Post because "it's a purposefully rousing homage to the ideals of journalistic independence, governmental accountability and gender equality."

Yet her word "purposefully" carries with it the tacit admission that movies such as "The Post" may take liberties with history and law in order to celebrate how the forces of good triumph over those of evil.

The movie concerns the paper's choice in 1971, following a similar decision by The New York Times days earlier, to publish the Pentagon Papers.

The 47-volume work—on the relationship between the United States and Vietnam between 1945 and 1969—was commissioned by Robert McNamara in 1967 when he was Secretary of Defense.

Completed in 1969, it was immediately marked as "Top Secret—Sensitive," and drew in part on classified sources and in part on publicly available information, including such well-known works as Bernard Fall's Last Reflection on a War, published in 1968, just after Fall had been killed by a landmine in Vietnam.

The Pentagon Papers were leaked to The New York Times and The Washington Post in March of 1971 by Daniel Ellsberg, a military analyst at the RAND Corporation, who, after a two-year tour in Vietnam with the State Department, soured on the entire war.

Upon learning that the newspapers planned to publish the Pentagon Papers, the United States government asked federal courts in New York and Washington D.C. to prohibit their publication on the grounds that they contained classified information.

The matter quickly was kicked up to the Supreme Court (the entire episode ran 18 feverish days from June 13 to June 30, 1971). "The Post" explains how Graham and Bradlee were prepared to take the risk that the publication of the Pentagon Papers would derail a public stock offering of The Washington Post and hit them both with a contempt citation that could land them in jail.

The movie offers a tribute to the First Amendment's freedom of the press. (The papers were eventually declassified and published in 2011.)

"The Post" boasts of the historical significance of the Pentagon Papers for revealing a pattern of concealment and deceit dating back to the presidencies of Truman and Eisenhower. But the report itself stated that it contained no new information from the Truman and Eisenhower years, and only offered some "non-startling tidbits," to round out its narrative of the period.

Even with respect to the juicier material from the Kennedy and Johnson years dealing with the full-scale U.S. military intervention in Vietnam, everyone already knew that the war was going badly, leading to daily protests against Johnson who decided, on those grounds, to not seek reelection in 1968.

Indeed, "The Post" begins with a Vietnam jungle scene in which a government observer, who turns out to be Ellsberg, gets caught in hostile enemy fire, deadly evidence that the war is faring poorly.

McNamara, who is treated all too kindly in the movie, flat-out lied about the disarray on the battlefield in his press briefings during the late 1960s, by repeatedly insisting that the war effort was headed in the right direction. Classified information was not needed to unveil a calculated lie easily exposed by thousands of daily newspaper and television accounts of the war, all of which were fully protected under the First Amendment.

The question, then, is how both The Times and The Post should have proceeded when Ellsberg dumped the stolen information into their laps?

That question, in turn, begs another—did the papers actually merit the classified status the government granted them?

But the film never addresses this fundamental issue. None of the characters asked whether these documents should have been classified as top secret to begin with—nor did the Supreme Court do so in its landmark decision in New York Times Co. v. United States (1971), which ruled that the Times 's publication of the Pentagon Papers was protected by the First Amendment.

The larger point is that it is dangerous to let government officials affix the "top secret" label to whatever documents might embarrass them politically. Nonetheless, it is equally unacceptable to make newspapers the final arbiters of what information should remain classified and what made public.

Most critically, the 1966 Freedom of Information Act ( FOIA ) covers all government agencies, including the Department of Defense. FOIA generally requires the government to disclose information that any private party requests in writing, unless it is protected by an applicable exemption or exclusion, including one covering classified information pertaining either to national security or foreign relations.

The government cannot stuff all of its documents into the classified bin. Cognizant of this risk, FOIA allows for a judicial determination of whether the government's claims of classified information are justified.

The stale and arid Pentagon Papers do not come within a country mile of meriting a top-secret classification, even if some bits and pieces buried in those 47 volumes might contain sensitive material. But throughout the legal proceedings, the government bears the burden of bringing the case within that exception.

How would this case have come out if The Times and The Post had proceeded under FOIA?

One obvious issue is the speed, or lack thereof, in processing FOIA requests. The government is required to answer a FOIA request within 20 days, except under "unusual circumstances," none of which would allow for further delay here.

But ironically, time surely was not of the essence here. In his dissent, Justice Harry Blackmun noted that the Times had "clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession" before it made its decision to publish, precisely because there was no necessity of the moment.

Even so, the case was rushed through the Supreme Court in five days from June 26 to June 30, 1971.

In the brief per curiam (unsigned) opinion for the Court, the point on which all of the Justices agreed was that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."

But this statement is seriously misleading because it does not take into account the second point that Blackmun raised, namely, the unauthorized possession of documents taken from government files.

To be sure, the general rule against prior restraints makes perfectly good sense in those cases in which, as Blackstone noted long ago, government censors seek on their own authority to shut down publication of material on the ground that it is either defamatory or obscene.

But the risk of government censorship is combatted under FOIA precisely because of the ability to get an independent determination by a judicial body that suffers from none of the obvious conflicts of interests that plague administrative officials who want desperately to make conclusive determinations in their own causes.

There is a parallel here to the general law of trade secrets that applies to disputes between private parties. Thus, suppose that A gives to B information under a promise that it will be kept confidential and used only for limited purposes. If B then decides to transfer that trade-secret information to C with the intention that it should be published, A is allowed to treat C as though he acquired the information in bad faith, given that he knew that he had no right to obtain it.

If C had received a valuable ring from B in bad faith, A could recover possession of the ring from C. But the flow of information is more difficult to police because there is no way to recover the "thing" if C still has detailed notes or a photocopy of the document after he returns the original.

The only way to restore the status quo ante in these situations is to enjoin C from the publication of information that he never should have acquired in the first place.

Regrettably, the Pentagon Papers Supreme Court case introduces an unfortunate form of gamesmanship in which the government (like A in our example) is allowed to take all sorts of measures to prevent B from releasing the document to C, while making it impossible for the government to get an injunction against third parties like C who have already received protected information.

The release of the Pentagon Papers was no big deal, but the releases of information by Edward Snowden and Bradley (now Chelsea) Manning are cut from a very different cloth. The names of CIA operatives and current military plans are classified information in anyone's book, and it is unconscionable if an uncritical form of First Amendment exceptionalism is allowed to undo key national security efforts.

The "absolutist" version of First Amendment jurisprudence ignores the simple and brutal fact that laws against defamation, misrepresentation, and the release of confidential documents are all consistent with a First Amendment that protects robust criticism of both the government and private parties.

But the talismanic invocation of the First Amendment in "The Post" has the unfortunate consequence of leading us in the wrong direction on the proper relationship between free speech and national security.

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.