The First Amendment Rocks!

Facts of the Case

New York Times Co. v. United States (1971) – Link to Case

The New York Times and the Washington Post obtained illegally copied secret documents
on the Vietnam War referred to as the Pentagon Papers. The U.S. government
issued a court order through the United States District Court of New York, to
prevent the publishing of the documents. The New York Times and the Washington
Post published the information anyway. The New York Times appealed the injunction
and the case ended up in front of the Supreme Court. (according to infoplease.com)

Legal Issue

The argument on the part of the newspapers was that their reporting was protected under the First Amendment. The U.S government argued that prior restraint was justified in this case.
Prior restraint, as referred to in this case, is where the government prevents
the transfer of information (press, informants, etc.) because it presents a
threat to national security. It is a form of censorship.

Decision

The court ruled 6-3 in favor of the New York Times
and The Washington Post. They affirmed the appeal in favor of the Washington
Post, and they reversed the decision of the lower courts for the New York Times. The decision in this case has been extreamly important to the world of journalism, and has been referenced in many cases since this decision.

Analysis

The court felt that The United States Government had the burden of proving that this information should be held back by showing how the information would damage national security. The court felt that the government did not make that case, and therefore the First
Amendment rights of the Freedom of the Press were most relevant here and the newspapers
had every right to publish the documents.

There were three prior cases referenced in the courts decision. The first was Bantam
Books Inc. vs. Sullivan which claimed that a state body cannot prevent
the sale of published material on the grounds of obscenity. The second, Near
vs. Minnesota says that a publication cannot be shut down due to their
publication of malicious, scandalous or defamatory material. The last case
sighted in their decision was Organization for a Better Austin vs. O’Keefe. In this case, a local Chicago group was distributing leaflets against a local realtor claiming he was involved in
unsavory practices in the area. The relator sued claiming that his right to privacy
was violated. The court ruled in favor of the group distributing leaflets. This
is the case where the phrase, “the heavy burden of justifying the imposition of
the prior restraint,” came from that was so powerful in the courts decision in
favor of the newspapers. This means that it is the person in the lawsuit that
wishes to have prior restraint upheld that must prove there is a strong enough reason
to justify this action.

There were interesting arguments on both sides of this case. Justice Black concurred with the overall ruling, saying that the news organizations did exactly what they were supposed to do in
this situation, which is inform the public of important activities of their
government. He stated that the executive and legislative branches of government
should have no rights to make a law that suppresses the free press. According
to Black, James Madison wrote that this type of censoring was exactly what the
First Amendment was there to prevent.

Brennan also concurred, claiming that these rulings should be an indication that preventing the press from publishing information in the future should only come to the court with a very
good reason. The government does not have a right to suppress embarrassing
information. The country was not at war when these items were published. He
also states that there are no copyright laws on an item’s basic ideas (which is
what was published) but only on the “Form of Expression.

Justice White said that since the Executive Branch holds power over foreign relations and diplomacy that is unchecked, then it is here that the freedom of the press is most essential for an informed public.

White States,

“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government.”

He also recognized that secrecy is sometimes essential in foreign relations though not in this case.

As the most powerful dissenting opinion Chief Justice Burger said that that he felt the decision was hastily made. He claimed the court did not properly hear any facts of the case and gave
a general decision for the benefit of the First Amendment. He also noted that
the Times kept their acquisition and work on these documents a secret, and that
it did not afford the U.S. Government the same right to secrecy it expected for
itself by publishing the documents.

Questions
1. How do you feel about a newspaper publishing secret government documents?
2. Do you think this case has/or could have any bearing on Julian Assange and Wikileaks?

3. In his dissent Justice Burger pointed out that the newspaper claimed during the investigation that  it should not have to release information about the source of the documents to the court for their source’s protection, and that the newspapers did not respect this same sentiment when it acquired and published secret government documents. Do you think both the newspaper and the government should have the same right to privacy in their occupations? Why or why not? What about for reasons of protection (sources, informants, etc.)?

Oba Chandler

Angels and Demons is a popular feature news story by Thomas French. The story is centered on the murder of three women who went on vacation in Florida in June of 1989. After a long police investigation, Oba Chandler was convicted of the murders and is currently on death row.

All three women were found floating in Tampa Bay, close to a harbor, with their feet and hands tied, their necks attached by rope to concrete blocks and duct tape over their mouths. This particular case was interesting because the police used billboards in an attempt to find any information about the killer.

The murder of the three women, a mother and her three daughters, was highly publicized in Florida and around the country. With all this publicity, is it safe to say that Oba Chandler got a fair trial, which he is guaranteed under the constitution? The local news and every major paper ran stories when Oba was believed to be a suspect, and while he stood trial.

A book about the 1976 trial

Let us look at the 1976 Supreme Court Case of Nebraska v. Stuart. The basis of the case posed the question of if it was necessary for there to be a reduced intensity of reporting in some legal hearings. The reason for this was a concern for obtaining a neutral jury selection and ultimately a fair trial.

The Supreme Court decided that it was inappropriate to bar media reporting in a court case because it was “the most serious and intolerable violation of the first amendment. This is in opposition to the idea of prior restraint which basically states that certain material may not be published and advocated censorship of the press in certain cases. There was one caveat in the court’s decision which stated that there was an exception in the case of “clear and present danger” and if it would impede a fair and speedy trial from happening.

The court decided also that there were steps that the lower court could do in order to prevent the mass amount of publicity from interfering with a fair trial. They stated that the location of the trial could be moved to an area where there was not as much publicity, such as moving a case from Columbus to say Pemberville. They also stated that the trial could be postponed until the publicity died down some. The final two suggestions that the court gave as potential solutions to the problem were: asking the jurors questions to determine their level of bias and sequestering the jury during the trial proceedings.

Questions:

1. In the case of Oba Chandler, do you feel a fair trial was given?
2. Do you feel the solutions that the court gave in the Nebraska v. Stuart trial are valid solutions to the potential problem of intense publicity impeding a fair trial?
3. In what cases, if any, should a restriction on the press be mandated?
4. Do you know any other court cases that are related to the issue of prior restraint?

Will the United States prosecute WikiLeaks founder Julian Assange for espionage? Here is an interesting article analyzing the legal issues.

As the MSNBC article put it:

If the United States seeks to put on trial WikiLeaks and its founder, Julian Assange, what are the implications for freedom of speech, for protection of government secrets and for news organizations on the Internet?

Msnbc.com has convened a panel of legal specialists to explore questions raised by a prosecution.

As one of the panelists put it, “The WikiLeaks events tee up the question of defining ‘media’ in the new, Internet era like no previous case.”

Texas vs. Johnson-1989

Outside the 1984 Republican National Convention, protesters gathered to voice their disproval for the current presidential administration. Mr. Johnson was in attendance as a protester of President Reagan, in his first term, and also a number of Dallas based companies. During a march outside the convention, Johnson burned a United States flag as an act of protest. No one was hurt due to the political statement that Johnson made and it was determined that no one was even threatened of being hurt.

It was noted that a few witnesses, an exact number was not given, were offended by Johnson’s act. Johnson was then convicted of desecration of a venerated object, which was in violation of a Texas statute. Venerated means to regard or treat with reverence.

A Texas court of appeals approved the notion that Johnson was guilty of violating the Texas statute. Johnson was then sentenced to one year in prison and was given a fine of $2,000. Johnson appealed the decision to the Texas Court of Criminal Appeals, and it was decided that his case would be seen.

The Court of Criminal appeals over-turned the decision of the lower court, stating that what Johnson had done was protected by the First Amendment. They found his actions as protected content of free speech.

The Court also determined that the act of flag burning in Johnson’s case would not have caused a major disturbance of the peace, and therefore did not qualify as a potential security breech, which was necessary to meet the state goal. The Court decided that the Government cannot assume that every controversial idea will cause a riot.

The state of Texas asked the Supreme Court to hear the case, and their decision was handed down in 1989.

A five-justice majority wrote the defendant’s act of burning a U.S. flag was protected speech under the First Amendment to the Constitution. The final result was a 5-to-4 slight majority decision.

The verdict was decided because the court felt that Government cannot limit the spoken or non-spoken expression of ideas solely because society finds the idea upsetting, even when the U.S. flag is involved.

The case was brought to court on the grounds of determining whether flag burning was protected as an act of free speech and if the U.S. flag was in a unique and separate category because of its meaning and venerated status.

Questions:

1. What is the significance of the Supreme Court’s decision?
2. How do you react to this statement: “Burning the U.S. flag is desecrating the symbol of free speech?”
3. Do you feel the United States flag needs to be protected from desecration and should be placed in a separate category because of its venerated status and meaning to people?
4. Do you feel this case is at all similar to the uproar that came about after Jimi Hendrix played his own version of the National Anthem at Woodstock?
5. What potential problems can arise from the Texas V. Johnson decision?

In class, we discussed the documentary movie, The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers.

If you can, watch the movie. (It’s an instant download on Netflix, and the BGSU library has it too.) Then consider these questions.

The Most Dangerous Man in America

Questions to Consider

HERO OR TRAITOR?

1. Although this movie is a historical documentary, it has a clear point of view. How do you think the movie portrayed Daniel Ellsberg? How did it portray President Nixon and his administration?
2. President Nixon says, “I think it is time in this country to quit making national heroes out of those who steal secrets and publish them in the newspapers.” Should Ellsberg be considered a hero? Why or why not?
3. At the time, many people considered Ellsberg a traitor for revealing national secrets. President Nixon said, “Daniel Ellsberg, whatever his intentions, gave aid and comfort to the enemy, and under those circumstances, that is inexcusable. After all, he is putting himself above the president of the United States, above the Congress, above our whole system of government, when he says in effect that he would determine what should be made public.” What are your thoughts on Nixon’s statement?
4. Some people might think that when Daniel Ellsberg became convinced that the Vietnam War was wrong, he simply should have quit. Instead, Ellsberg decided to release government secrets. Did Ellsberg do the right thing? Did he go too far?

THE MEDIA CONTROVERSY

1. Was The New York Times justified in publishing the Pentagon Papers even though they were classified as top secret government documents?
2. Some of the history included in the Pentagon Papers had been known for years—for example, it was no secret that the United States took the side of the French following World War II and did not support Vietnam’s Declaration of Independence read publicly by Ho Chi Minh in September 1945. Are The New York Times (and other newspapers) the heroes of this story, or should they have been doing a better job throughout the entire war? Is The Most Dangerous Man about the media’s success or about its failure?
3. The Nixon administration tries to stop publication of the Pentagon Papers. Attorney General John Mitchell orders The New York Times not to publish them. What was the Nixon administration worried about? Did the publication of the Pentagon Papers truly endanger national security?
4. President Nixon and National Security Advisor Henry Kissinger both said that publishing the Pentagon Papers was an attack on the “integrity of government.” Were they right? What impact did the Pentagon Papers release have on government and society, beyond its implications for the war in Vietnam?

CURRENT-DAY ISSUES

1. Today, in post-9/11 America, would Daniel Ellsberg’s actions be considered acts of “terrorism,” or acts that aided and abetted terrorism, if the documents released concerned a current war – the war in Iraq, for example?
2. When should “whistle-blowing”—in this case, releasing government secrets—be considered a crime and when should it be considered an act of patriotism or a civic or moral duty?
3. In 2010 and 2011, the website WikiLeaks has released hundreds of thousands of secret U.S. documents describing the conduct of the war in Iraq, diplomatic relations with other countries, and other topics. WikiLeaks founder Julian Assange, echoing the words of Daniel Ellsberg, said that, “Transparent government tends to produce just government.” Consider the case of WikiLeaks more fully. How do the actions of WikiLeaks compare with those of Daniel Ellsberg? How has the issue of “intellectual property” changed since the Pentagon Papers? Daniel Ellsberg has commented extensively on the WikiLeaks case. Research his comments and weave them into your analysis.
4. Examine the Pentagon Papers case that went to the Supreme Court (New York Times v. the United States). What were the key arguments? There were multiple opinions written by Supreme Court justices; what are the lasting effects of the Supreme Court decision and of the various opinions? What bearing does the case have on contemporary whistle-blowing incidents? How might today’s court have decided the case?
5. One of the arguments made against Daniel Ellsberg is also leveled against contemporary whistle-blowers: Do whistle-blower activists like Julian Assange endanger U.S. soldiers or allies? Did Ellsberg’s actions endanger U.S. troops in Vietnam? Where does one draw the line in terms of what endangers troops and what doesn’t?
6. Which takes priority: national security or the people’s right to information? Since the Nixon administration, the United States has witnessed an expanded use of “national security” as a rationale for keeping information from the public. What constitutes “national security”? How far can presidential power grow during a time of undeclared war, such as the conflicts in Afghanistan and Iraq; or during an indeterminate conflict, such as the so-called war on terrorism? How do opinions written by the Supreme Court in the Pentagon Papers case inform this issue?

Hola all. Im Jasmine Parker (new last name, I just got married!) I just changed my major from broadcast journalism to print journalism. I minor in popular culture.  I plan on starting my own online magazine because my goal is to be self-employed. I have an almost 2-year-old daughter. This is my senior year at BGSU so I should be hopefully graduating in the spring or summer of 2012.

Hi everyone, I’m Asia Rapai, a senior majoring in print journalism and minoring in visual communication technology with a focus on web and video. This year I am the editor-in-chief at The BG News, which means I spend A LOT of my time in the newsroom over in West Hall trying to maintain a solid newspaper and website for the campus community.

Two summers ago I interned at my hometown newspaper in Monroe, Mich., The Monroe Evening News, where I wrote more than twenty front-page feature stories that became centerpieces. After the internship I have continued freelance reporting for the newspaper during my winter and summer breaks.

I transferred to BGSU from Monroe County Community College where I worked on the student newspaper, The Agora. During my time there, I helped in setting up and maintaining the newspaper’s first website as well as covered the administration/faculty beat.

Outside of newspapers I have always been interested in live theater and my ultimate goal is to write and produce a play after I retire from the field of journalism. In the meantime I enjoy taking a break from journalism every once in a while to spend time with my family and three small dogs.

Hey there, my name is Matt Nye and I am a junior, print journalism major here at BG. I also have worked for the BGnews for almost three years now because I started 2 weeks into the school year my freshman year. I have covered general reporting stories, swimming, hockey, (which I will be covering exculisvely this year), and baseball.

I have loved sports all my life and I wanted to incorporate a way in which I could involve sports in my life without actually playing them anymore, then this sportswriting thing pretty much just clicked with me. I have loved everything about it so far and will continue to improve to become the best writer I can be.

I’m Max Filby and I’m from Sylvania, Ohio, about 30 to 45 minutes North of Bowling Green.

I’m a junior studying print journalism at the University with minors in Italian and Political Science. I work at The BG News as the News Editor, a page designer and a reporter. I’ve worked at The News since I transfered to the University from OU in January 2010.

I’m interested in reporting on almost anything related to controversy. Some of the bigger articles I’ve worked on for The News include one about rats and other pests in the dining halls, one about University leadership related to the former USG president vomiting at an away football game and one about students who had PEDs to get into residence halls they didn’t live in.

I also do some freelance work for a magazine based out of Sandusky, Ohio called Health Matters. It’s a monthly magazine that just started this year.

Aside from reporting, I’m a big fan of movies and premium cable TV shows like “Weeds” and “Dexter” on Showtime.

Hi, my name is Alesha Gailhouse.  I am a public relations major, with a Spanish minor.  My passion is singing opera, playing the violin and public speaking.  So, someday I hope to own a public relations firm in Spain, while singing opera and playing the violin.  Just kidding.  I do want to own a PR firm or a non-profit agency and possibly teach public speaking classes.

Right now, I am learning as much as I possibly can about public relations this semester before I study abroad in Madrid, Spain!  Que emocionada, no?  This summer I interned with Sunshine, a non-profit organization helping people who have developmental disabilities and their families.   I learned so much, not only about writing, but also about design.  I found out that I love design, and any public relations job or firm that I become a part of, must be design-oriented.  This fall I will continue with Sunshine, mainly working on an large project for the holidays…details to come.  I also maintain another blog, Vegan Living.  Check it out, if you want to learn more about what it truly is to be vegan 🙂

This semester I am the coordinator for The Way Campus Fellowships, an on-campus non-denominational Bible study.  (Another long-term goal is to become a minister.)  I have been involved with Student Run Firm for PRSSA, and learned a great deal about helping clients reach their public relation/ marketing goals.  I always look for opportunities to learn something new about anything! My philosphy for life is to keep a positive outlook and take every opportunity to grow and improve.  Any questions, just ask.  Peace and later days.