At a time when traditional newspapers are under economic and political stress, “The Post” movie reminds us of the important role the Constitution envisioned for a strong and serious press.
The movie opens with Robert McNamara, defense secretary, sanguine in public about the outcome of the Vietnam War, but negative in private. Working for the Rand Corp., Daniel Ellsberg helped write the 47 volume, 7,000 page “Report on the History of U.S. Decision-Making Process on the Vietnam Policy,” colloquially called “the Pentagon Papers,” which revealed that several administrations, starting with Truman and continuously through Johnson, had misled the American people about the Vietnam War and that that war was not going well. In 1971, Ellsberg released the Pentagon Papers to the New York Times. The Nixon administration secured a temporary restraining order against the Times.
The Washington Post then obtained its own copy of the Pentagon Papers and faced difficult legal and practical decisions. Should it publish in the face of the Times restraining order and in the middle of a public offering designed to bolster its floundering financial status? Should the owner of the Post, marginalized and trivialized as a woman, overrule her male advisors, risk financial ruin for the paper and approve publication in the face of possible contempt of court? These questions and their answers provide the drama of “The Post,” but the real heroes are the six justices of the United States Supreme Court who ruled in New York Times Co. v. United States and United States v. Washington Post Co., that since a prior restraint of the press bears “a heavy presumption against its constitutional validity,” the government, although invoking the Espionage Act, did not carry its heavy burden to demonstrate “grave and irreparable danger.” The newspapers were allowed to publish.
The per curiam decision is brief, but Justice Black elaborated in a concurring opinion: “The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” Black reiterated the history of the Founding Fathers’ desire to give “the free press the protection it must have to fulfill its essential role in our democracy.” Justice Douglas in another concurring opinion invoked the clear and unambiguous language of the First Amendment, writing, “Congress shall make no law … abridging the freedom of speech, or of the press.” To Douglas, “that leaves, in my view, no room for governmental restraint on the press.”
These are priniciples worth remembering.