Learned Hand Lecture in Honor of Judge Wilfred Feinberg

U.S. Court of Appeals for the Second Circuit

June 22, 2011

It is a great honor to be invited to give this lecture, named after one of the great American judges, of this distinguished Court, about a subject—the Pentagon Papers case—that is of immense significance to this nation and, indeed, the world, and, finally and personally most significantly, in celebration of the 91st birthday of a man – Bill Feinberg – who has over half a century on the bench carried forward the highest judicial standards set by Learned and Augustus Hand and who is a mentor and dear friend (along with Shirley, his wife) to every one of us here this afternoon.  There are themes within themes and interconnections large and small running through this occasion.  Generation after generation of law students are every year introduced to the First Amendment—the problems of its theory and reach—through the mind of Learned Hand in the Masses case of 1917.  On June 23, 1971, as the Pentagon Papers case coursed through the 2nd Circuit, Judge Feinberg voted (in dissent) not to enjoin The New York Times, which shortly afterwards would be the courageous decision of the Supreme Court, in a landmark case that altered history.  Less widely observed, understandably, is the fact that two months later I would enter Judge Feinberg’s chambers as his new law clerk, beginning one of the most important years of my professional life; or the even more important fact that some three decades later my daughter, Carey, would also serve as a law clerk to the judge. So, let me just say, to Bill Feinberg directly, without extracting every level of meaning from this moment, how grateful and admiring everyone in this room is for your remarkable service to this Court and to the law and for your friendship over these many decades.

The subject this afternoon, thus, is the Pentagon Papers case, a decision of iconic status in First Amendment jurisprudence and widely known in American society.  Every society, certainly every democratic society, must decide what balance to strike between the legitimate interests of the government in working in private (secret) and the legitimate interests of the citizens in knowing what the government is doing.  One of the contexts in which this issue arises is when the press comes by classified information leaked by government employees.  Should the press be free—protected by the First Amendment—to publish that information?  That, of course, is the question the Pentagon Papers case posed and, to some extent, resolved.  . 

I want to make three general observations about the Supreme Court’s decision and then offer two broader comments about where we are today with respect to the issue of publication of classified information and about the revolutionary changes the phenomena of globalization creates for the First Amendment as we have come to know it.

Pentagon Papers is one of the most well-known, least understood decisions in the jurisprudence of the First Amendment.  Interestingly, the issue it addressed is almost never litigated but it is iconic.  Pentagon Papers is the culminating case in that seminal period of the 1960s and early 1970s when the Court essentially created the framework for free speech and free press in America, the framework that still exists and that is the most speech protective system in the world today and perhaps in human history.  Pentagon Papers stands with The New York Times v. Sullivan, Cohen v. California, Brandenburg v. Ohio, Red Lion Broadcasting Co. v. FCC, and several other cases as the bedrock of the American approach to freedom of speech and press.  These opinions drew from the classic opinions of First Amendment jurisprudence—notably Hand in The Masses, Holmes and Brandeis in Abrams and Whitney, and a few others—that date from earlier in the 20th Century.  It is a surprising fact—virtually unknown by people outside the law, and often underappreciated even by people within the law—that the Supreme Court never spoke about the meaning of the First Amendment until 1919.  And, when it finally did speak, it was more about the virtues and necessities of censorship than the glories of liberty of expression.  (It was more about how you can’t yell fire falsely in a crowded theater than about how the best test of truth is the power of a thought to get accepted in the marketplace of ideas.)  While our country seems unaware of how recent our First Amendment jurisprudence really is, we as a people seem even more blissfully ignorant of the fact that our national behavior towards dissent has often been disturbingly more like the repression of authoritarian regimes we regularly condemn today than the image we carry around with us that in America you can say just about anything you want with the full protection of the Constitution.  It may be true today, but it has not by any means always been so.  (We all know the story of Eugene Debs.)

Pentagon Papers is certainly part of that favorable pro-free speech self image.  Yet it is interesting that it has achieved that iconic status given that the decision in favor of protecting publication was narrowly achieved (6 to 3, with 3 of the 6 highly qualified) and, even more importantly, that the decision was arguably very limited.  When I teach Pentagon Papers, one of my standard hypotheticals is to assume I am the editor of a major newspaper in possession of classified documents leaked to one of our reporters by a government employee in clear violation of the law and who likely will go to jail if discovered and prosecuted.  I seek assurances from my general counsel—the unfortunate student called upon for that day—that Pentagon Papers will keep me from ever wearing an orange jump suit.  Citing Pentagon Papers, my general counsel usually affirms that publication would be protected, but then gradually backs away from that position as the discussion proceeds to reveal how the majority opinions seem to only talk about prior restraints and may not speak to subsequent punishments, and also seem to say the outcome might be different if Congress were to authorize the Executive Branch to take action against publishers, or if the government could just provide some actual proof of genuine harms to national security.  I point out how disappointed I am in a “landmark” free press decision that protects my freedom to publish harmless information but not my right to avoid prosecution afterwards for doing so.  (In candor, I've never completely understood the rationale for the very strong presumption against all “prior restraints,” at least when they take the form of injunctions. From the standpoint of the editor, I imagine him or her saying: Look, if you really are concerned for me, which I very much appreciate, I'd rather have a very strong presumption against going to prison than one against being ordered by a judge not to publish.)

Yet Pentagon Papers is a prime example of how the specific limits of judicial decision do not reflect the real significance of a case.  It is a very notable fact that Pentagon Papers is the only instance in our history (other than the less well known case involving the Progressive Magazine and its announced intention to publish plans for building an atomic bomb) when the U.S. government has sought to enjoin or punish the press for publishing classified information.  The average person may be forgiven for believing that the Pentagon Papers case stands for the much larger proposition that in America, even in the face of an assertion by the President of the United States that publication will make our foreign policy more complicated and difficult, the Supreme Court will side with the press and its role in informing the public about the actions of our government.  Along with Times v. Sullivan, that is no small victory for the ideal that in a Madisonian democracy it is the citizens who are the ultimate sovereign and not the other way around. 

There is, I believe, an even bigger point to be made here.  When you stand back and look at the decision in Pentagon Papers, and some other related cases, and at the way we have lived with that decision, it is a remarkable portrait of pragmatic American solutions to conventional societal problems (i.e., disclosure of classified government documents).  As Alexander Bickel observed at the time, the upshot of Pentagon Papers is this: Under the First Amendment, the government is free to withhold as much information from public view as it chooses, despite the fact that we know from experience that the government will be far more secretive than it should. It may enforce this secrecy by criminally punishing officials who leak any of this information to the press, no matter how valuable to citizens that information may be.  The press, on the other hand, may freely take information from leakers and freely publish that information (unless the government can prove grievous, irreparable and imminent harm to the national interests), even though that may significantly injure the ability of the government to do the public’s business, domestically or in foreign affairs.  To many outside observers this system seems incomprehensible and chaotic.  It appears to be unreasonably messy, risky, and oddly non-judicial in resolution.  And, yet, from almost any perspective, it seems to me, it has worked well, very well in fact.  Governments learn to live with leaks (indeed, even learn to use them to advantage), rarely prosecute leakers, and classify information with abandon.  The courts avoid the seemingly immensely complex task of being the final arbiter of what information should remain secret and what public.  And the press, following professional journalistic standards and acting with a sense of responsibility to the nation, on balance publish what citizens should know and exercise self-restraint towards the rest.

This, I believe, is a system that reflects a civilized society.  Rules that on the surface appear to invite risks and disorder may in fact work brilliantly because they work within a social context where people and institutions behave responsibly, provided there are checks and balances in place.  Freedom is often greater when we do not want or need to use it to the maximum.  This is the one of the great lessons of the magnificent set of cases from the era of the 1960s and 70s, which began with Sullivan curbing the law of defamation to avoid discouraging citizens from speaking under the threat of legal liability for falsehoods.  The most interesting and significant thing about the American system of freedom of speech and press is not that it is the most protective of any society (now or before) but that the risks of that commitment have not materialized.  This means the First Amendment stands as a continual reminder, a national teaching moment, about our capacities to function successfully in a highly pluralistic, diverse society, with a myriad of viewpoints and perspectives about how to live. 

The Pentagon Papers case was the crest of these remarkable decisions, and we have been living off of them ever since. 

The big question today, in light of the extraordinary event of Wikileaks’ possession and disclosure of millions of U.S. government documents, is whether Pentagon Papers can survive the new realities of this new century.  Allegedly, the source of these leaks is a mere private in the Army who had computer access to this huge body of classified information and chose, with the click of the send button, to transmit them to an organization based outside the United States and led by a man not a U.S. citizen who asserts a mission in life of achieving total transparency, no matter what the consequences.  Thus far, only a fraction has been released, primarily through established news media, such as The New York Times and The Guardian.  There is an ongoing debate about the extent to which this has resulted in or threatened harms. 

There are at least two or three factors that raise concerns and relate to the continuing viability of the approach of Pentagon Papers.  The first is the ease of leaks in the era of computers and the Internet.  A vast amount of government information is presumably now readily accessible by large numbers of employees, who, with the most minimal effort, can disseminate it broadly and instantly.  The risks of very high-cost leaks seem far greater than in a world in which the Xerox machine was the primary available technology.  The second is the reality that the array of individuals able and likely to receive leaks is infinitely broader than the group of professional reporters working for established (and largely monopolistic) news outlets.  Inevitably, recipients will include people with little, no, or adverse interests in the welfare of the United States.  When the editors of the Washington Post or The New York Times were in possession of classified information, you can be sure they would listen to official pleas for restraint in publication and actually practice restraint themselves in the face of a good faith case of very serious harms.  Not so with someone who disdains secrecy and proudly professes disinterest in the bad consequences of publication.  The question, in a way, is how many Julian Assanges will there be in this new world, as compared to the number of Abe Rosenthals or Ben Bradlees.

At this point, I think the most we can say is that experience will inform our judgment whether to maintain the course with Pentagon Papers or move in a different direction.  I do not have the time in this lecture to consider alternatives, but I will say that it has seemed to me that it is a more reasonable option than many have heretofore assumed for the courts to insist on a general responsibility of the government under the First Amendment to make reasonable efforts at openness, the contours of which would be decided over time on a case-by-case basis (essentially building on the right of public access upheld in Richmond Newspapers).  I also believe, again contrary to the current ways of thinking, that courts should recognize a special set of stronger protections under the First Amendment for the “press,” difficult as it may be to delineate the boundaries of that segment of society (essentially building on the approach once outlined by Justice Stewart and implicitly reflected in several First Amendment cases).  A principle of higher protection for the press would help secure both the public interest in appropriate levels of government secrecy and good and aggressive disclosure to the public.  Either or both of these options would alleviate the pressure of Pentagon Papers to protect the publication of nearly everything anyone can get their hands on.

Whether we are living through a transitional period, needing updated and recalibrated rules governing disclosure is debatable.  But we are seeing inconsistent and sometimes inequitable outcomes. How else to make sense of the aggressive—and ultimately, failed—prosecution under the Espionage Act of Thomas Drake, the National Security Agency employee who claimed he was acting patriotically when he leaked information to a Baltimore Sun reporter about government overspending on a telecommunications program.  In this case, the actions of a whistleblower who made possible the kind of investigative, accountability journalism we expect from a robust free press were targeted by the Justice Department; the same Justice Department that is struggling to contain the wholesale leaking of classified documents that could result in real harm to sources and military personnel.

As the Washington Post—in full disclosure, on whose board I serve—said on its editorial page:

“This newspaper is not a disinterested party and maintains an interest in obtaining information that sheds light on the inner workings of government. But we also recognize the government’s obligation to hold accountable those who breach agreements, especially ones that touch on national security interests. The question is whether the action taken is proportionate to the alleged crime. In Mr. Drake’s case, it was not.”

Let me turn, finally, to some thoughts about Pentagon Papers and what I think of as a still larger set of changes at work in the world today, with very significant implications for the First Amendment.  The era of New York Times v. Sullivan, that culminated in Pentagon Papers, can be thought of as a response of a nation undergoing a tectonic shift from local control of local issues to national control of national issues.  The economy was increasingly national in scope, and issues like civil rights, the environment, and criminal justice called for national solutions, along with matters of war and peace.  This change was aided, perhaps created, by new communications technologies, which were inherently national in character (television and radio in particular).  Sullivan was one of several major Court decisions that found local law (i.e., the tort of defamation) in conflict with the need for a national public forum for debating national issues.  Pentagon Papers further protected the American press in its efforts to inform an American public about a raging national debate.  It followed the traditional approach of extending deference to the government in defining national security and foreign policy interests at stake, but in the interest of robust national debate, the Court at least insisted on some concrete proof of intolerable costs.

Today, with globalization, I believe we are entering the next stage of this process of issues calling for a wider public forum, which will have important implications for the First amendment.  The fundamental characteristics of change are the same.  Economies are less national and increasingly global and integrated.  Nearly half of the revenues of the S&P 500 corporations are generated from business conducted outside the United States; developing countries provide roughly half of the manufactured goods bought by developed countries (up from 14% in 1987); approximately half of the U.S. government’s debt is in foreign hands; and on a more personal scale, a significant portion of everyone’s retirement fund is invested in foreign enterprises.  And gone are the days when America’s demand for energy was so large, relative to other nations, that it determined the price of oil we consume.    This all means, in turn, that the challenges we face as a nation have expanded to become global in dimension—from mitigating climate change, and rebuilding the foundations of the global financial system, to preventing the spread of infectious disease, and addressing widening disparities in personal income and wealth.  The new technologies of communication (the Internet and satellite, in particular) are forging this inter-connectedness while making a global public forum necessary and possible.  We are rapidly approaching an environment in which all that we say, whether we intend it or not, is global in reach and has global significance.  This means we are exposed to censorship laws all around the world.  Just like Alabama’s libel law became an intolerable limitation on national discussion, the new reality is that censorship anywhere is censorship everywhere. 

Because we will live in a world in which our issues are global issues and cannot be solved except by discussion with citizens around the world, we will have a direct interest not only in our own capacity to receive information from and about the rest of the world and to speak to the rest of the world, but also in how the rest of the world receives information and participates along with us in the global public forum.  This new context has a number of implications for the First Amendment; essentially we will have to ask more and more what limits should the Constitution put  on actions by the U.S. government that might adversely affect that global public forum?  Questions arise that didn’t appear to be questions before, or appear in a new light, such as:  What restrictions on participation in our public debate by foreign individuals and entities (media or corporations) should be protected under the First Amendment?  (I’m thinking of visa restrictions, or rules about foreign media and access to cable broadcast, or campaign finance laws.)

In a recent Supreme Court decision in Holder v. Humanitarian Law Project, a majority of the Court held that advice provided by a U.S. group to  a designated “foreign terrorist organization” about international law and about how to work within international organizations like the United Nations, constituted “material assistance” under the federal statute and could accordingly result in criminal prosecution.  The Court said this expression was not protected by the First Amendment.  The government’s claim that national security concerns justified the prohibition on speech because support for legitimate activities of the foreign organizations could be expected to result in support for their criminal terrorist activities was accepted by the majority, with the explanation that courts must defer to the judgment of the government on such matters.  Chief Justice Roberts, writing for a six-Justice majority, argued:

“In this context, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government.”

These are difficult questions to be sure.  But at what cost do we rely on conclusions based on informed judgment, not evidence, which lead to infringements on speech?  To my mind, the Chief Justice’s reality is inconsistent with the spirit of Pentagon Papers in insisting that when First Amendment rights are at stake the government at least has the obligation of demonstrating—not just claiming—very serious harms.  But the lessons of Pentagon Papers, and the source of its landmark status, I believe, go further than that.  Pentagon Papers was a great decision because it was highly sensitive to the value of speech and press in a forum that needed information.  The animating spirit was that, if at all possible, that discussion would be protected.  Not to the point of unreasonableness or complete disregard of every other value.  But that, at least, would be the starting point, not the other end of the speech spectrum where the burden is on the speech to prove its value (as happened in Schenck with the starting point that yelling fire falsely in a crowded theater was not protected). 

That spirit now needs to be transferred to thinking about protecting speech in the global public forum, which is where we are going to live for at least the rest of this century. 

A great case like Pentagon Papers offers endless facets of meaning, new and old.  It exists in the great tradition of the First Amendment that begins with Hand, weaves its way through the decisions of great judges—like Bill Feinberg—and brings us to the doorstep of a new century with new conditions and new demands for fresh thinking.  Thank you for inviting me to reflect on these matters, and Happy Birthday, Judge Feinberg.