National Security Law Attorney Takes On Six-Horned, Deranged, Circus Monster to Dispel Pentagon Papers Myth

Two years ago, The New York Times published an article by Adam Liptak as part of a special report they ran on the 50th anniversary of the Pentagon Papers and they asked their readers, “The Pentagon Papers case was a triumph for press freedom. Or was it?”

Formally known as the landmark case, New York Times Company v. United States (1971), the U.S. Supreme Court’s decision ultimately came down to a 6-3 vote in favor of the news organization but, as Liptak pointed out, the opinion is “at odds with the conventional view that the case was a flat-out First Amendment victory.”

Wait what? you ask.  At odds with a flat-out victory? You scratch your head. You’re certain that the court decided that there’s a First Amendment right to receive and publish classified information so how could this not be a full-blown success?? Over half a century after the case was decided, there is still the common misconception that SCOTUS was asked to consider this question.

In reality, what the court was asked to decide was whether the U.S. government’s efforts to stop The New York Times from publishing the Pentagon Papers violated the First Amendment. In other words, the government wanted to prevent something from being published. This is what we call  “prior restraint” or government censorship that “prohibits speech or other expression before the speech happens.” 

The government was not seeking any sort of legal recourse after The New York Times published nor was the Court asked to consider such a thing. This also wasn’t a criminal case.

Once you understand what the case was actually about it should come as no surprise that the court did not decide whether or not the First Amendment protects the right to receive and publish classified information. Again, what they decided was that the government couldn’t stop The New York Times from publishing before they published.

Prior Restraint

You might think, “Well, at least this takes care of prior restraint” but even that isn’t the case. Supreme Court Justice Potter Stewart implied that if publication of the material would cause ‘direct, immediate, and irreparable damage to our nation or its people,’ he would uphold prior restraint, but because that situation was not present here, he said that the [Pentagon] papers must be free to publish.” With that said, the courts don’t make it easy for the government:

The Pentagon Papers case set the standard that there is a ‘heavy presumption against [the] constitutional validity’ of prior restraint, which can only be overcome in the most extraordinary circumstances.

— Reporters Committee For Freedom of the Press

Without question, the court’s decision made prior restraint an uphill battle for the government but that certainly hasn’t stopped the effort. In 2020, the Trump administration sought an injunction against the publication of John Bolton’s book and, ironically enough, three years later he’s now opposing a motion filed by the U.S. to “impose unconstitutional prior restraints on President Trump’s political speech.”

Prior restraint isn’t just about media publishing or Trump’s political speech and it can find its way into cases where the plaintiff might actually welcome it, but the bar remains high nonetheless. For example, in Bey v. Rasawehr, the Supreme Court of Ohio vacated as prior restraint speech restrictions that had been placed on a man by the lower court after he violated the state’s menacing-by-stalking statute via online speech, “[T]he potential abuse of speech rights in the future cannot justify the blanket prohibition imposed here on Rasawehr’s speech before it has even been uttered.”

On June 16, 2020, the  Supreme Court of Ohio handed down a merit decision in Bey v. Rasawehr, 2020-Ohio-3301. In a unanimous opinion written by Justice Donnelly, the Court struck down the portion of the civil stalking protection orders that enjoined future postings about the women who sought the orders as an unconstitutional prior restraint on protected speech in violation of the First Amendment of the U.S. Constitution. 

The Court assumes without deciding that there is a compelling state interest in protecting civil-stalking victims from fear of harm or emotional distress, but finds the means chosen are not the least restrictive. Paragraph nine bars Rasawher from posting anything at all about the appellees. Thus, the Court finds it without any limits and thus overbroad,

‘Nothing in the record before us justifies such an utterly sweeping restriction on First Amendment expression,’ Donnelly wrote.

The opinion goes on to state that the Court was not discounting the embarrassment and mental distress the appellees have experienced and probably will experience, but reminds us all that ‘speech does not lose its protected character simply because it may be upsetting and cause distress or embarrassment.’

So yes, prior restraint is alive and well but the courts have continued to hold that there is a “heavy presumption against its constitutional validity.”

First Amendment Protection For Receiving and Publishing Classified?

As for First Amendment protection for receiving and publishing classified/national security information, there’s a common misconception that the decision in the Pentagon Papers case provides constitutional protection for these types of activities. On the contrary, in 2006, one of the attorneys who represented the media behemoth in the 1971 case wrote:

Though the press ultimately triumphed in the Pentagon Papers case, the victory was, it must be acknowledged, of a limited nature. A majority of the Supreme Court not only left open the possibility of prior restraints being issued in other cases but of criminal sanctions being imposed on the press following publication of the Papers themselves.

— Floyd Abrams

And according to Liptak (with emphasis):

There are, it turns out, two ways to understand the Pentagon Papers decision. One is that it was a potent vindication of press freedom establishing a bedrock principle: The government cannot stop the news media from providing information to citizens in a democracy.

Another view takes account of the letter and limits of the decision. Even as to prior restraints, the Supreme Court left the door slightly ajar. As to the possibility of punishing the press after publication, two justices in the majority wrote that they had no doubt that news organizations could be prosecuted under the espionage laws.

Indeed. Supreme Court Justice William O. Douglas’ wrote (with Justice Hugo L. Black concurring):

This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. 

And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought…

And Justice Byron R. White wrote (with Justice Potter Stewart concurring)(with emphasis):

[T]erminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do

Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense… However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed

The Criminal Code contains numerous provisions potentially relevant to these cases

If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793(e) makes it a criminal act for any unauthorized possessor of a document ‘relating to the national defense’ either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. 

Even The New York Times acknowledged that the Supreme Court had “left the door slightly ajar…to the possibility of punishing the press after publication,” one day after the case was decided: 

Justice White added that Congress had enacted criminal laws, including the espionage laws, that might apply to these papers. ‘The newspapers are presumably now on full notice,’ he said, that the Justice Department may bring prosecutions if the publications violate those laws. He added that he ‘would have no difficulty in sustaining convictions’ under the laws, even if the breaches of security were not sufficient to justify prior restraint.

The Chief Justice and Justices Stewart and Black echoed this caveat, in their opinions–meaning that one less than a majority had lent their weight to the warning.

One less than a majority had lent their weight to the warning. Yes, the Nixon administration was prevented from stopping the publication of the Pentagon Papers but one less than the majority also supported the prosecution of publishers and journalists if “the publications violate” criminal laws. During a congressional hearing held on June 6, 2006, then-U.S. Senator Arlen Specter stated:

There has recently been the suggestion that newspapers and newspaper reporters can be prosecuted under a criminal statue which prohibits the disclosure of classified information…

In the famous Pentagon Papers case, United States v. New York Times, in a dictum Justice White said, concurred in by Justice Stewart, that the statute would not provide for injunctive relief to stop a newspaper from publishing material, but would provide the basis for a criminal prosecution against a newspaper.

Matthew W. Friedrich, then-Chief of Staff and Principal Deputy Assistant Attorney General at the U.S. Department of Justice (DOJ), stated during that same hearing:

While the Supreme Court did not decide the question of whether the First Amendment immunizes the press from prosecution for publishing national defense information given to them by a leaker, five concurring Justices questioned the existence of such a blanket immunity.

When asked if the DOJ had the authority to prosecute a newspaper or journalist for disclosing classified information, he replied, “Yes.”

Chairman Specter: Mr. Friedrich, you say—I believe your words—that it is undeniable that the Department of Justice has the authority to prosecute a newspaper and a reporter for disclosure of classified information?

Friedrich: I believe I was quoting one of the concurring opinions in the Pentagon Papers in using that word.

Chairman Specter: Well, aside from the concurring opinion of Justice White, joined in by Justice Stewart, is it the position of the Department of Justice today that Section 793 would warrant—would authorize the prosecution of a newspaper and a reporter for publishing classified information…The answer is yes?

Friedrich: Yes.

The point being is that Friedrich made those statements in 2006, the very same year that WikiLeaks came into fruition. The DOJ didn’t just decide in 2017—or whatever year it was that they filed their initial complaint against Julian Assange (under seal)—uh, hey guys, I think we’re allowed to prosecute journalists for publishing classified information. On the contrary, it seems that they’ve always been under the impression that they can and The New York Times case doesn’t prohibit them from doing so.

[T]he popular, received wisdom about Bartnicki, and certainly Pentagon Papers, often comes in the form of terse absolutes. There is a palpable press-protective mythos surrounding both of these rulings, which is perhaps the result of media accounts that tend to wash away the uncertainties. 

Journalists and others who share information online have perhaps become unduly emboldened by this. That was likely true of Gawker editor Nick Denton whose unrepentant publication of a celebrity sex tape ultimately killed his whole enterprise.

Others should heed the Gawker lesson, but also recognize that even in Pentagon Papers, some justices explicitly left open the possibility of post-publication charges against The New York Times for publishing classified material. And Bartnicki itself was not a home run for the press, and perhaps not even a ‘win.’

— “Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Information Twenty Years After After Bartnicki V. Vopper,” Erik Ugland and Christina Mazzeo

The Six-Horned, Deranged, Circus Monster

Of course, pointing any of this out to Assange supporters comes with a hefty price tag and attorney, Mark Zaid, who specializes in national security law and freedom of speech constitutional claims, bravely took on that six-horned, deranged, circus monster this past week:

The reactions were swift despite the fact that Zaid doesn’t even appear to agree with journalists being charged under the Espionage Act. Of course, the difference here being is that he doesn’t believe that Assange qualifies as one.

Twitter users were quick to call Zaid an agent of the deep state, a “massive cuck” and a “shit attorney.” Someone wrote that he must have “slept through ConLaw” and another asked, “Are we forgetting the Pentagon Papers?” A third posted, “Nobody exemplifies US thuggery in legalese quite like Zaid.” Really, nobody? Extraordinary. 

One avid Assange supporter described him as “confused” and then suggested that his end game was “dystopia.” Even investigative journalist, Stefania Maurizi, threw herself into the fray, going so far as to attribute the apparent “terminal decline” and “near death state” of the U.S. to Zaid’s opinions.

Attorney and convicted criminal, Jesselyn Radack, inserted herself into the thread by stating that “Classified information is published every day be [sic] the MSM” as if that means anything in terms of the law or The New York Times decision. As one Twitter user pointed out, “People are murdered every day as well. It doesn’t make it legal.”

She also told Zaid that the “1st Amendment guarantee of press freedom is afforded to everyone,” again, as if this has anything to do with the discussion at hand. 

First Amendment rights might be afforded to everyone but they aren’t absolute. For example, child pornography isn’t protected. Defamation isn’t protected. And if the government is able to overcome the extremely high bar that has been set by the courts, a judge may very well grant them an injunction (prior restraint). Zaid did his best to inform the masses under an avalanche of bad legal takes and bruised egos:

One Twitter user seemed awfully keen on Allen v. Berich going so far as to highlight where the court cited the New York Times Co. case “affirming First Amendment protection for newspapers’ publication of classified Pentagon Papers unlawfully disclosed by a third party.” 

Yes, yes, yes! The court affirmed that The New York Times could publish the Pentagon Papers (which just so happened to be a tranche of classified documents that were unlawfully disclosed by a third party) because the government didn’t have the right to stop them before publishing. However, they left the door open for prosecution after publishing. 

If you want to publish some classified documents you received and the court rules that the government can’t stop you prior to publishing, go for it! Just remember that there’s no guarantee you won’t be prosecuted for it.

At the end of the day, Assange supporters, armchair attorneys, and even law professors can argue with Zaid all day long about the First Amendment and Pentagon Papers case but who they’re really arguing against is the U.S. Supreme Court and The New York Times itself which has openly stated that the decision in the Pentagon Papers case left the door open to criminal prosecution.

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