BrThe Fourth Estate is under threat.
In just a few weeks, the national media will be confronting a U.S. president-elect, Donald Trump, with an extraordinarily aggressive posture toward their institution.
During his first term, Trump unleashed his fury on what he called a “rigged media.” Now, Trump has raised the temperature even higher. During the past four years, he has threatened retribution against reporters and filed a legal suit against Disney, accusing one of the corporation’s companies, ABC News, of defamation. Trump also recently sued the Des Moines Register for publishing a poll right before the election that wrongly suggested that Vice President Kamala Harris, the Democratic nominee, was winning there.
What has become most disturbing in recent weeks has to do with news institutions that appear to be trying to avoid rather than challenge Trump’s wrath. Jeff Bezos’s decision before the election to prevent a Washington Post endorsement for Harris was a signal to some observers that owners with multiple business interests would be making preemptive concessions. Disney settled with Trump for $15 million before the case could go to court. While the details behind the decision remain unknown, they do point to an overall mood of trepidation.
This is becoming an important crossroads in the relationship between the U.S. presidency and the press. Over the next four years, the autonomy of the press—and the vitality of the First Amendment—will face a stress test unlike almost anything seen before.
Will owners, editors, and reporters to stand their ground, or will they—in the parlance of wrestling—tap out without much of a fight?
We have seen this struggle play out before. During the early 1970s, another president, Richard Nixon, brought his institutional muscle down to bear on the press. In his case, the outcome became a vital moment that ensured, for decades, that news coverage of elected officials remained vigilant and free.
Like Trump and many other presidents, Nixon didn’t think much of the reporters who covered him. For Nixon, members of the media didn’t appreciate what he was trying to do for the country, and he felt that they didn’t respect him as a person.
Much of the criticism toward public opinion emanating from his administration in its first term came from Vice President Spiro Agnew, who—before being forced to resign in 1973 as a result of his own scandal—dismissed the press corps as a “tiny and closed fraternity of privileged men, elected by no one,” who did not “represent the views of America.” The “big-city liberal media,” Agnew said, was “intellectually dishonest.”
Whereas Agnew’s rhetoric was blistering, Nixon’s actions were downright dangerous. Nixon maintained an “enemies list” that he sent to White House counsel John Dean, comprised of the names of those that Nixon wanted to be targeted by the executive branch. The list included many figures, including journalists such as CBS’s Daniel Schorr and Mary McGrory of the Washington Star. The White House had reporters’ phones tapped, and the IRS looked into the tax returns of New York Times reporter Seymour Hersh. G. Gordon Liddy and E. Howard Hunt, who later organized the Watergate burglaries, even talked about assassinating the muckraker Jack Anderson, who had been a perpetual thorn in Nixon’s side.
FBI Director J. Edgar Hoover also looked into the personal backgrounds of reporters, trying to find evidence of homosexuality. According to Mark Feldstein’s book Poisoning the Press, the FBI was given the authority to wiretap unfriendly members of the press. The administration went so far as to go after three television networks through the Justice Department by filing suits against the networks for acting in monopolistic ways.
“We don’t give a goddamn about the economic gain,” Nixon admitted privately to Charles Colson, one of his top aides, while discussing the antitrust cases. “Our game here is solely political.”
Until Nixon, journalists had been feeling relatively protected following New York Times v. Sullivan, a 1964 case in which the Supreme Court ruled that the First Amendment imposed clear limitations on public officials who wanted to sue journalists for defamation.
Seven years later, Nixon tested the press again. On June 13, 1971, the New York Times published the first 7,000-word installment of what would be called the Pentagon Papers. This article was part of a massive document trove that grew out of a study of the Vietnam War conducted by Leslie Gelb for Defense Secretary Robert McNamara.
The study was damning. McNamara had authorized the deep dive into the situation in Vietnam since President Harry Truman’s term in the White House. The classified report outlined the multiple ways in which elected officials had repeatedly lied to and manipulated the public when justifying the expansion of the United States’ presence into the civil war in Southeast Asia. The top secret report confirmed the worst beliefs that many in the public had come to hold about the quagmire in Vietnam, shattering claims that the operation was done out of necessity or to protect freedom.
By the time that the first installation was published, the Vietnam War had become one of the most contentious and divisive issues in U.S. history. A massive anti-war movement had taken hold across the country since the mid-1960s, with college students, religious figures, civil rights activists, and middle-class citizens protesting a war that was leading to tens of thousands of deaths. The war had arguably brought down Nixon’s immediate predecessor, President Lyndon B. Johnson, who withdrew from the 1968 election. His successor in the Democratic candidacy, Vice President Hubert Humphrey, could not escape the shadow of the unpopular war even though he had privately been a vociferous opponent since the start.
Daniel Ellsberg, a former Defense Department official who was working with the National Security Council, leaked the material. He had come to believe that the war was a massive mistake and based on lies almost from the get-go. He was inspired by hearing a speech from the peace activist and Harvard graduate Randy Kehler at an anti-war meeting in 1969. A few months after hearing Kehler explain why he had decided to go to prison instead of serving in the military, Ellsberg and a fellow defense analyst secretly photocopied the study.
Reporter Neil Sheehan of the New York Times jumped at the opportunity, persuading his editors to run with the story after receiving approval from the newspaper’s lawyers. Arthur Ochs Sulzberger, the publisher, and A.M. Rosenthal, managing editor, agreed to publish the entire document with the support of the newspaper’s vice president and general counsel James Goodale—who overturned opposition from the paper’s law firm, Lord Day & Lord.
“Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” read the first headline on June 13.
Since the Pentagon Papers focused on Democratic administrations, especially Presidents John F. Kennedy and Johnson, Nixon originally was not worried about the piece. He first believed that the revelations would hurt his opponents, making him look better as a result.
But National Security Advisor Henry Kissinger and Deputy National Security Advisor Alexander Haig read the stories through a different light. They believed that the leaked study would hurt Nixon’s administration. Anything that undermined trust and generated criticism of the war, which was still underway, would be damaging to the president’s standing. Allowing leaked information to be published, moreover, would create a precedent for further efforts on other issues.
It didn’t take long for Nixon to change his tune. The same day that the first story published, he told Kissinger, “it is treasonable to take this stuff out … it serves the enemy.”
On June 14, the Times ran a second installment. That evening, the president spoke with his attorney general, John Mitchell. The two discussed the fact that the Times had breached the Espionage Act, a law put onto the books during World War I, and that Nixon wanted further publications to stop. In a separate phone call with Nixon, Haig called it a “devastating … security breach of the greatest magnitude of anything I’ve ever seen.” Nixon responded: “Well … as far as the Times is concerned—hell, they’re our enemies.” He added, “I think we oughta just do it,” referring to taking legal action.
The administration sought a court injunction to prevent further publication of additional installments. The U.S. District Court based in Manhattan agreed to give the administration a temporary restraining order. Twenty-two employees of the paper were named in the filing, including Rosenthal. The case, which had the potential to involve charges with prison time, went to the Supreme Court. The Times held off on releasing the third installment of the series.
While the legal proceedings were underway, Nixon officials considered other tactics as well, including one proposal made by Tom Charles Huston to break into the Brookings Institution, where Ellsberg had an office, to steal documents.
“Get in and get those files. Blow the safe and get it,” Nixon told his aides. (The plan, which never was officially authorized by the White House, did not eventuate.)
The New York Times fought back. Two Times employees distributed thousands of pins for supporters to wear that read: “Free the Times 22.” The paper hired a team of first-rate lawyers, including Floyd Abrams, to represent it in the Supreme Court. When the administration sought a preliminary injunction to extend the ban, Judge Murray Gurfein, the Nixon appointee who had granted the temporary restraining a few days earlier, refused. “A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know,” Judge Gurfein argued.
The Times was not alone. On June 18, the Washington Post started to publish the study under the headline “Documents Reveal U.S. Effort in ’54 to Delay Viet Election.” The administration sought an injunction in U.S. District Court to stop the Post from publishing more. The cases continued to work their way through the federal courts. Meanwhile, other papers tested the waters as they obtained portions of the Pentagon Papers and published them as well.
Further publication was temporarily restrained by federal courts as the Supreme Court heard oral arguments on June 26 and on June 30 and decided that it would consider the New York Times case.
The burden to justify restraining the press fell on the politicians calling for publication to cease. The government, the court concluded, “carries a heavy burden of showing justification for the imposition of such as restraint.” By a 6-3 decision, it decided that the administration had not proved that the publication would threaten national security.
Only “a free and unrestrained press can effectively expose deception in government” noted Justice Hugo Black, the strongest advocate for the majority rule. The First Amendment triumphed any other concerns that the president might have. “And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people,” Black wrote, “and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
The New York Times v. the United States remained a landmark protection for the First Amendment, providing a shield for future reporters who were threatened by defensive politicians.
Sulzberger, the Times’s publisher, described his reaction as one of “complete joy and delight.” The paper published an editorial, proclaiming: “[T]he nation’s highest tribunal strongly reaffirmed the guarantee of the people’s right to know. … This was the essence of what the New York Times and other newspapers were fighting for.”
Besides the entrenchment of the First Amendment, the story of the Pentagon Papers serves as a powerful reminder of how vital it has been for the owners of the press to defend the values that guide them, even when there is great risk to their own institutions. For all of the problems with the media—and there are many—the ability of the institution to cover the executive and legislative branch with freedom and without the fear of retribution is a core element of democracy.
Right now, the United States is getting close to another Pentagon Papers moment. Abrams, who worked as co-counsel to the Times during the Pentagon Papers case, described the situation to me in an email:
The decision of the New York Times in 1971 to publish the TOP SECRET classified 7000-page assessment of how the United States became involved in the Vietnamese War required the highest level of bravery—personal and corporate … The press today may well, indeed seems likely to face similar threats. The President-elect has already raised the specter of his Administration seeking to strip critical broadcasters of their licenses. Newspapers seem likely to be subjected to libel suits and perhaps worse. The central lesson of the Pentagon Papers Case for the press today is that it must prepare for and expect the worst and most dangerous relationship with the forthcoming Administration since John Adams used the Sedition Act of 1798 against the press of his day.
Regardless of the president-elect, these are perilous times for the news industry. Distrust of the media has greatly increased. The financial strength of the press has greatly weakened. At the same time, the ownership of many major outlets has become intertwined in nonmedia business interests that can be affected by government action.
The question now is this: Will the leadership of these institutions stand up when called upon to do so, or will they make so many concessions that they permanently erode the ability of our reporters to speak truth to power?