Debating Whether to Run the Pentagon Papers in The Post

From The Post (2017)

Categories:

Run time: 2:29

Clip Description: The senior editors and publisher Katharine Graham debate whether to run the paper’s story on the Pentagon Papers, knowing that the Nixon administration has already obtained an injunction against the New York Times and that the Post could face indictment under the Espionage Act. Graham has the final word, and makes it with her bankers, her board and her lawyers all telling her not to.

American Politics Concepts Discussed/Connected To: This clip is useful for discussing freedom of the press under the First Amendment, and in particular the doctrine of prior restraint that the Supreme Court addressed weeks later in New York Times Co. v. United States (1971). It also raises the press as a check on executive power, the reach of the Espionage Act, and the commercial pressures on editorial independence – the Post was days from its public stock offering when this decision was made.

Possible Uses in Classroom: Use this clip in a unit on civil liberties or on the media. It pairs directly with the site’s other clip from this film, Receiving McNamara’s Papers, as the second half of a two-part sequence: one scene is about getting the documents, this one is about what it costs to publish them. It also works as a way into the difference between a legal question and an editorial one, since the lawyers in the room are giving correct advice and are overruled anyway.

Discussion Questions

The government here is seeking a prior restraint – an injunction stopping publication before it happens. Weeks after the events in this scene, the Supreme Court held in New York Times Co. v. United States (1971) that any such restraint carries a heavy presumption against its constitutional validity, and that the government had not met it. But the Court left open that the papers could still be prosecuted after publishing. Why should stopping a story before it runs be constitutionally worse than punishing the paper after it runs, when the threat of prosecution deters just as effectively?
Nobody in this room is weighing a principle in the abstract. Graham’s paper was days from its initial public offering, and the underwriters held a clause letting them walk away if a catastrophic event occurred. Make the strongest case that a newspaper owned by a public company is better protected from government pressure than one owned by a family, and then the strongest case that it is worse. Then say which ownership structure you would want for the paper that covers your own state government.
The Post obtained the documents knowing they had been taken from the government by someone who committed a crime to take them, and knowing that publishing would make that person easier to find. Where should a news organization’s obligation to its source end? Answer it concretely: say what you would do if your source told you, as Ellsberg effectively did, that running the story would probably send him to prison and that he wanted you to run it anyway.

Assignment

Read the per curiam opinion in New York Times Co. v. United States (1971) alongside any two of the six concurrences – Black, Douglas, Brennan, Stewart, White or Marshall. The whole thing is short. The Court agreed on the outcome and agreed on almost nothing else, which is why the case is cited constantly and settles less than people assume. In two pages, state the actual rule each of your two justices would apply to the next case, and then construct a set of facts on which your two would split. The difficulty is that the government loses is not a rule; you have to supply the standard, and the standard is precisely what the Court declined to give.

Clip hosted on Critical Commons.

For AP Students

AP U.S. Government and Politics
Unit 3: Civil Liberties and Civil Rights

Topics: 3.3 and 3.4, on the First Amendment and freedom of the press
Skill: SCOTUS Application (2.C): compare a required case to a case that is not required
Anchors: New York Times Co. v. United States (1971); Schenck v. United States (1919); First Amendment

Katharine Graham decides to publish while her lawyers, her board and her bankers all tell her not to, with an injunction already running against the New York Times. The decision is made before any court rules, and that is the useful part: students see what prior restraint looks like from the position of the person deciding whether to risk it, rather than from the opinion written afterward.

Discussion questions

Prior restraint means stopping publication before it happens rather than punishing it afterward. Explain why courts treat the first as more serious than the second.
In New York Times Co. v. United States the government argued national security and lost. Name what the government would have had to show in order to win, and say whether you think a real case could ever meet it.
Graham decides before the Court does. If the Court had gone the other way, would she have been wrong to publish, or only unlucky? Explain the difference between those two.

Short activity

State the rule, then use it (15 minutes). In two sentences, students state the rule from New York Times Co. v. United States as they would explain it to a friend, without legal vocabulary. Then they apply it: a newspaper obtains a document revealing a military operation planned for next week. Does it publish? One paragraph, and the paragraph has to name the rule it is applying. Students who wrote a vague rule in the first step discover in the second step that it does not decide anything, which is the point of doing the steps in that order.