A concerning development occurred during the congressional hearings today on Russian Interference in the Election (link goes straight to testimony): Trey Goudy (a member of the House Permanent Select Committee on Intelligence) implied that the FBI had somehow dropped the ball by not going after New York Times and Washington Post journalists for protecting their sources when publishing classified information in the public interest.

It was quite odd watching a room ponder the prospect of charging the press with criminal activity for what is considered standard journalistic First Amendment protected practice (of publishing classified information) as if it were some kind of allowable solution to what’s been going on with the current round of White House leaks.

This issue has already been decided on quite clearly by the Supreme Court in the Pentagon Papers case, United States v. New York Times, 328 F. Supp. 324, 329 (S.D.N.Y. 1971).

This has mostly to do with something Justice Gurfein referred to as a “cantankerous press.”

As Gurfein writes in his decision:

The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication. From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment…

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an 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…it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.

These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.

Here’s Trevor Timm (Freedom of the Press Foundation) explaining this in a brief 1 1/2 minute video. This clip is from the upcoming film “From DeadDrop To SecureDrop.” (Transcription below):

Transcription:

The Supreme Court case that came out of the Pentagon Papers was one of the most important First Amendment cases of the twentieth century. It essentially is affirmed that newspapers in the United States have the constitutional right to publish information – even that the government considers “Top Secret” – that’s in the public interest, and that they cannot be censored, or what courts refer to as “the government can’t issue a ‘prior restraint.’

The opinion was written incredibly fast – from the start of the case where it went from the District court to the Supreme Court took only 13 days, which is incredibly fast. If you ever read the history of Supreme Court opinions, it usually takes years to get there. And so, all nine judges wrote separate opinions, but the core of the case still stands, which is that unless there are extreme extreme circumstances – which we have never seen in this country – that newspapers and journalists have the right to publish classified information. And because of this, we have learned so much more about what our government does behind closed doors.

Often, what they do, that is immoral and wasteful and illegal, we never would have known without this decision.