Receiving McNamara’s Papers

From The Post (2017)

Categories:

Run time: 2:41

Clip Description: The Washington Post receives McNamara’s papers, which became known as The Pentagon Papers. The Post ended up running these, even though the government attempted to block their publication. This is a good clip to prompt discussions on freedom of the press in the United States.

American Politics Concepts Discussed/Connected To: This clip discusses concepts of the media role in exposing government corruption to the public.

Possible Uses in Classroom: This clip discusses the role media plays within the government.

Discussion Questions

The government’s case was not that the papers were false — it was that publishing them would damage national security. In New York Times Co. v. United States (1971) the Court refused to stop publication, holding the government had not carried the heavy burden required to justify a prior restraint. What would a case look like in which the government could carry it? Try to state the rule you would actually want a judge to apply, and then notice how much discretion your rule hands to whoever applies it.
Publishing was protected. Leaking was a separate matter: Ellsberg was prosecuted under the Espionage Act, and the case ended on government misconduct rather than on any ruling that the leak was lawful. So a newspaper may print what its source can go to prison for handing over. Is that split coherent — a press protected precisely because it is not the one who broke the trust — or is it a system that pushes all the risk onto the person with the least protection?
The papers showed that successive administrations had privately concluded the war was going badly while saying otherwise in public. Answer honestly: is there any classified information you think the public is better off not knowing? Name the category. Then name who you would trust to decide what falls inside it, and say what stops that person from putting everything inconvenient there.

Assignment

Read the per curiam opinion in New York Times Co. v. United States (1971) together with Justice Black’s concurrence and Justice Harlan’s dissent — the three together are a short read. In two pages, take Harlan seriously: his position is that courts are badly placed to second-guess the executive on foreign affairs and national security. Build the best case you can for the dissent, then say what finally stops you from accepting it, or admit that nothing does. You will be graded on how fairly you state the side you like less.

Clip hosted on Critical Commons.