Free Press/Responsible Press: From the Pentagon Papers to the Gulf War

THE OPEN MIND
Host: Richard D. Heffner Guest: Floyd Abrams, Esq.
Title: “Free Press/Responsible Press:
From the Pentagon Papers to the Gulf War”
VTR: 3/10/91

I’m Richard Heffner, your host on THE OPEN MIND … which some wag may now just think to call “The Floyd and Dick Show”, for Floyd Abrams, my guest today, has joined me here so many times before over the last decade or so.

And it’s not just that this eminent partner in the Cahill, Gordon and Reindel law firm is such a dear and cherished personal friend by now. He is, to be sure … but it’s that his distinguished career as a Constitutional expert has taken the redoubtable Floyd Abrams into so extraordinarily many vital aspects of the law in America (and abroad, though perhaps none so compelling as those relating to free speech, free press issues.

Now, of course, as hostilities end victoriously for America in the Gulf War, we approach the 20th anniversary of the landmark Pentagon Papers case, in which Mr. Abrams played a key role representing The New York Times, and in which the Supreme Court of the United States set a free press standard that some would not wager on this year, two decades later, even as we also celebrate the 200th anniversary of the Bill of Rights.

My question, then, is what bet would Floyd Abrams make … and, further, what has the Gulf War told us about America’s attitudes today toward the critical issues of the Pentagon Papers case? Floyd? What bet do you make?

Abrams: Because of the Pentagon Papers case, because it exists as a precedent, because it came up at a very fortunate time for the press in American history … during the war in Vietnam, I think that if a similar case arose about the Gulf, say … suppose The New York Times obtained secret information about how we got into the Gulf War, why we were there, which is the equivalent of the Pentagon Papers, I think the Supreme Court would say pretty much the same thing. I think what they would say is there’s a very heavy, very heavy burden against any prior restraint, any bar in advance on speech or press and that the government can’t meet it, couldn’t possibly meet it with respect to any such historical study. But, if it were not a historical study, if it were a study which contained anything closer to the nature of military operations, I think the court would go the other way. And just to show how important it is when cases arise, if there’d been no Pentagon Papers case, and if a similar case arose now for the first time …

Abrams: … about the Gulf, even a historical study, I wouldn’t be at all sanguine about how that case would have come out. I, 1 just don’t know. I think the fact that we won the Pentagon Papers case that the First Amendment side prevailed in that case, is the reason that it would likely be won again. But had that not happened, it would be a very, very close case now.

Heffner: Is that because of the makeup of the present court as distinguished from the makeup of the Pentagon Papers court?

Abrams: It’s a few things. One is the makeup of the court, it’s much more conservative now. Much less sympathetic to broad principles supporting freedom of the press. The other, which comes with that in a, in a way is that the public now, unlike the public in 1971 is much turned off by the press and by the press’s treatment of the Gulf War. And that, although it has some similarity to 1971, the press had very significant support for whatever it was doing in reporting about the war in Vietnam in ‘1971, which I don’t think there’s any equivalent of now.

Heffner: Because that was an unpopular war, and this was a popular war.

Abrams: That’s right. That’s right. And, and – although, you know, one likes to think court cases aren’t affected by things like that, it’s hard in reality to think that it would have no effect at all. For example, in 1971 my worst nightmare about the Pentagon Papers case was that somebody would also get a hold of this historical study, of how we got into Vietnam, prepared by the Defense Department, stamped “Top secret” and start reading it in Central Park, page after page. Some far Left Wing, not very attractive looking, not very establishment speaking sort of person and that that case would get to court before our case got to court. Because my fear was that if that was the context all the sense which, which we were able to communicate to the court, that, that The New York Times surely must be allowed to report “the news” in this fashion, would dissipate and that it would be viewed as a test of the writer-radicals to say things during a war hostile to the country, based on secret documents. Again, there the law shouldn’t be any different, but especially when you’re doing a case or an issue for the first time, how it arises is very important.

Heffner: So you’re saying then that had a different kind of case, a different cast of characters come up…

Abrams: Yes.

Heffner: … the decision might have been … gone otherwise and if it had …

Abrams: Yes.

Heffner: ‘” the very business of standing in the precedents of the past would mean that today, or would have meant in the time of the Pentagon Papers themselves, that your case may not … might not have gone the way it did.
Abrams: Again, one likes to think that that’s not so, but my own view is that, and I’m not alone in this, is that the factual context of a case often has a great deal to do with how it comes out. Even though what the court is doing is setting forth a rule of law, not only to govern that case, but all similar cases. So, yes, I think if the Pentagon Papers case had been indeed exactly the same, but it had been The Village Voice and not The Times it would have been harder. I mean the fact that it was the establishment press was a big, major step forward. And, and that’s one of the reasons that I think that the establishment press, if you will, has a special obligation to be rather militant in the articulation of First Amendment principles. Because they’re sometimes the only ones that can win these cases.

Heffner: Has it been, Floyd?

Abrams: Through the years it has, yes. Through the 1970’s it certainly was, and into the ’80s. There’s been some criticism of what I’m calling the “establishment” press for not joining a lawsuit challenging the censorship restrictions in effect on the War in the Gulf itself. So in that case you can say that it, it hasn’t been … or it wasn’t very militant. But that I think was for a variety of pragmatic reasons, some of which I think are correct.

Heffner: “Pragmatic” reasons ‘” the fact that we saw constantly that this article, this report has gone through the censors … nothing further, nothing more, no protest in the courts, no refusal to accept what the Pentagon established.

Abrams: By the … by, by the centrist establishment press. That’s true. I think the main reason is one of which reminds me of a story you may well remember that was told about President Eisenhower … when, when he was President …

Abrams: … and someone asked him about going to war in Vietnam. And he pulled down a map and he pointed to the map and he said, “Can’t win”. The problem with this lawsuit is it; it’s very hard to win. That’s a pragmatic judgment. To, to bring a lawsuit in what, at least turns out to be, a very popular war, which by its nature sounds as if you’re against the war in some way or other, and in an area of law where there is undoubted government power to act. Not to overact, but to act … 1 mean we, we all know that during a war things are possible … that are not possible, that are lawful, that would not otherwise be lawful, with respect to government censorship even of the press. But, you know, the important thing is that the government not go too far. The problem is that “not go too far” concept is very hard to get the courts to say because the question is always “How much is too far? How far is too far?”. It was a lot easier, a lot easier during the War in Vietnam to sort of throw up your hands as the press and finally say, “we can’t take this anymore, they’re lying to us so much, Judge, that you’ll understand why we have to have the right to publish this. Because this is truth and what they’re … what they’ve been saying is lies”. That wasn’t the case in the Gulf. Again, that’s not supposed to be the way cases are decided. But, it’s very hard to take the real life aspect out of the decision-making process of great cases.

Heffner: You know, it’s interesting as you speak, 1, I want to say, “oh, how you speak, Floyd, my goodness, could you really be talking about ‘the law’, the law in America that way?”. Which leads me to a question having nothing to do with, with the press necessarily … though so many of your clients are from the press … do you spend much time saying to clients, “This is the wrong time to test this Constitutional issue?”.

Abrams: Sure. I say it a lot, but I mix it with something else … and that which I mix it with tends to be, these days, “Times aren’t going to get any better. If you really want to test this in the First Amendment area, you might be better off last year, say, when Justice Brennan and Marshall were on the court and at least that there were those two very solid votes as a start, then this year when Justice Marshall is alone in that area, on the court”. I don’t mean that he would be the only one to vote for the press on some case, but I do mean that one has to … one of the things I do for a living is to count votes. And in 1971 we could say with a high level of assuredness, as Pentagon Papers case was being argued, “We have 4 votes going in. There’s no way we’re not going to get Justice Black, Justice Douglas, Justice Brennan and Justice Marshall. There’s just no way. So we need a vote, what can we say to try to get at least one more vote in that case?” And we did get two more votes. Now it’s a lot harder. Now one has to make a much more conservative, if you will, pitch. An argument which is aimed at votes you might not have needed at all.

Heffner: Well, now those who are sitting around in the Attorney General’s office today, when a similar case comes up, can they count on a number of votes as readily as you counted 4 votes 20 years ago?

Abrams: It depends what the area is.

Heffner: Well, I’m thinking about press freedom.

Abrams: Yeah. They can’t be sure that they have a block of votes in the same way that we had 20 years ago. They can be sure …

Heffner: On the other side.

Abrams: That’s what I mean. That that cannot have the same level of assuredness because some of the conservatives, some of the very conservative Reagan appointees have occasionally been very protective of First Amendment rights. But the First Amendment never should have been a liberal/conservative thing in the first place. And there are members of the Supreme Court … Justice Scalia, for one, who have voted in some cases, and Justice Kennedy for another, in a very protective way about First Amendment right. I mean who would have thought if you were just approaching this politically, that Ronald Reagan’s appointments to the Supreme Court … Scalia and
Kennedy would vote to say that you’re, you’re entitled to burn the flag without being punished for it and that the First Amendment allows you to burn the flag. Ronald Reagan wouldn’t have thought that for sure. Well, the answer is both these people are serious jurists who care about the First Amendment in their way … they and I may not agree, and don’t on a lot of aspects of it, but when it comes down to a core First Amendment issue, political protest going on and a, and a political statement being made, they were there when it counted to add up to the final two votes … that was a five-four decision. So, I mean the fact that, that an appointment is a quote “conservative” unquote one, doesn’t necessarily answer the question of how they’re going to vote in a First Amendment case, particularly if it’s a “core” sort-of First Amendment case. I mean a case which is not sort of a breakthrough case in the sense of applying the First Amendment to a whole new area.

Heffner: Now, do you think that the, the government could count on one or two strong, certain votes?

Abrams: I think in the national security area … if that was the conflict … that the government can pretty well count on the vote of the Chief Justice, Mr. Rehnquist …, can likely count on Justice Scalia’s vote. Would have a good shot at a number of the other votes. But, one can’t tell. I mean Justice White voted for The Times in the Pentagon Papers case he may have gotten more conservative or the country … in truth
I think it’s fair to say has become more conservative since then. But his isn’t a “lost” vote, as I add up votes Justice O’Connor has been quite protective of First Amendment rights in some of her opinions … Justices Marshall … Blackmun has changed considerably in terms of becoming much more protective of Bill of Rights principles since 1971 when he voted against the press in the Pentagon Papers case. So there are a lot of votes that are still on the quote “First Amendment” side. Justice Souter … who knows … it’s too early to say … we’ll, we’ll know more within months.

Heffner: But, of course, it is interesting when you say that you do advise clients … “if you’re going to do it, you might as well do it now because it’s going to get tougher”.

Abrams: Yeah, I give them two sorts of advice at once, very often. One is “chances are much less now than they were blank years ago, and maybe chances are against you, maybe significantly against you now”. But, I tell them, “if this principle matters enough to you, and if we agree that, that this principle is going to be litigated in front of the Supreme Court … maybe now … it would have been better five years ago … would have been best of all 20 years ago, but if you really care about this, maybe the time to litigate it is now because things aren’t likely to get any better as … Justice Marshall’s over 80 years old, Justice Blackmun is over 80 years old” … they are the hardcore, I would say, of the most likely to be supportive of, of the Bill of Rights people on the court.

Heffner: What does that mean now to you in terms of the 200th anniversary this year of the Bill of Rights. What does it mean to you for the practice of free speech law in the future. Giving up?

Abrams: I’m … oh, no, not at all … I mean I … now I think those of us o’ of the line that, that I’m on and my work and my beliefs have to take on a conservative visage … in a significant way.

Heffner: What do you mean?

Abrams: I mean that, that what we should be doing is saying these cases were decided in the 1970’s and the 1980’s, leave them alone, we don’t want anything new from you …

Heffner: Which you would never have said 20 years ago.

Abrams: I wouldn’t have said it … I wouldn’t have said it in 1971 …

Heffner: Right. (Laughter)

Abrams: I would have said it’s time to decide … the time has come. But now, it’s fair game. We’ve had a great development of case law in the last score of years and it has some appeal to conservative members of the court, and liberals, too. But, but to conservatives in particular to say, “Look, you’ve already ruled now in a number of cases that … for example … it is very, very difficult to sustain any law which punishes the press for telling the truth about something”. Even if the something it tells the truth about, is something we’re not so sure ought to be written about, like the name of a rape victim m, like the identification of a judge under investigation by a secret panel, like the identification of a juvenile.

Heffner: Like anything in the Gulf War, Floyd? In your own estimation?

Abrams: Well, in the Gulf War the hard cases would have been anything to do with military operations … those would always be the hardest cases.

Heffner: But just about everything had to do with military operations, right?

Abrams: Only if you define “everything” so broadly as to make nonsense, in my view, of First Amendment rights at all. I mean it doesn’t have to do with ongoing military operations, for example, when the government says you can’t photograph airplanes landing at Dover Air Force base with bodies of American troops on it. Sure, one can say if people see that at home they’ll get discouraged, and if they get discouraged, it will lead them perhaps not to support the war. That’s an argument which, which runs against the principle that it is for the public to decide whether to go to war and whether to stay at war. That’s not military operations, that’s, that’s a military/political judgment, which I don’t think the government ought to be able to make. That’s very different from any press organization that had wanted to publish …

Abrams: … and none did want to, and many of them knew it, that our attack plan was to go West into Iraq and then to move secretly from the West towards the East in an effort, in a successful effort to surprise Saddam Hussein.

Heffner: But there was, there was buzzing around about the reporting of the landing or the aborted landing of SCUD missiles. There was buzzing around about what the press was permitted … the electronic press, in particular …

Abrams: Yes.

Heffner: … permitted to say and not say.

Abrams: As regards SCUD missiles, I think that’s a very good example. The Israelis protested, strongly, about one network having a person standing on top of a building saying where he was and saying that the SCUD landed two blocks away from me. And the network stopped doing it. I mean there was really no justification for it, the reason that they did it was a standard and ordinarily perfectly acceptable journalistic one … it’s the truth.

Heffner: But when you say “no justification” that’s something you would say about so few things, Floyd …

Abrams: That’s right.

Heffner: because …

Abrams: But in time of … you’re absolutely right … but in time of war if you’re talking about saying something which can be of immediate operational benefit, like a forward spotter of the Iraqi’s and the US … I want to make clear, this isn’t just Israel, the US objected very much to anyone in Saudi Arabia announcing just where the SCUD missiles landed because the Iraqi’s didn’t know. I think the broadcasters understood that and accepted it after it was pointed out to them early on in the war. Now if that had become a legal case, suppose the broadcasters had said, “we have a perfect right to broadcast it, we want to broadcast it, it’s the truth … we watched a television program, and we heard we’re allowed to tell the truth … what’s the problem”, I think they would have lost because in, in the middle of a war certain types of restrictions are permissible which are not otherwise allowable. But they didn’t …

Abrams: … I mean and, and they didn’t try to after initially broadcasting some of that information. And most of the things that they wanted to say which they were kept from saying, they were kept from saying for reasons which were either bureaucratic in nature … it took a long time for the military to clear things, or substantive, but not operational. The military wanted to look good, and so they changed adjectives here and there and said some adverbs and some other language.

Heffner: I mean the military “wanted to look good” … do you mean then that the press said, “ah, the hell with it, it’s not important, sure they want to look good, let’s not make a federal (laughter) case of this”?
Abrams: As regards a few changes in words rather than going to court, they tried to work within the system, they tried to change the system, they, they argued.

Heffner: But not in the courts.

Abrams: But not in the courts.

Heffner: Now do you think that’s the beginning of the slippery slope, of going down the slippery slope?

Abrams: I think that, that if we do have another war-like situation that the censorship in effect during this war will undoubtedly be cited by the government in support of doing it again. This censorship was stronger, harsher, more complete than the government has done at all in recent memory. And that that is one of the problems, it’s one of the risks, it’s one of the unavoidable dangers of the censorship system that we’ve just been through … is that in a war in which the military is not telling the truth as well as one like this, in which so far as we know, they were … basically … telling us the truth ••• that they would still have the power of censorship. And that really comes back to the point I was making earlier. As a practical matter, one of the reasons that the Pentagon Papers case came out the way it did was because the judges are human, and because the judges understood that there was a major problem of on-going truth-telling going on. I don’t think that was the case in the Gulf. But the danger of what went on … legally, now in the Gulf, the danger of it is that the government may well try it again and that these restrictions were, were very over-broad in every sense.

Heffner: Now I’m not really trying to get you to tell tales out of school …

Heffner: … much … but was that point made during the weeks of the Gulf War when the potential for standing in the precedent were pointed out?

Abrams: Ah, there wasn’t a lot of reporting during the Gulf War about the scope of the censorship restrictions. There was some and there was a lot of talk, during the Gulf War about the press objecting to the restrictions and, and a public reaction as, as you remember, overwhelmingly hostile to the press. Including some very funny ones, you know, 5% of the public said that it would be a good idea in their view to bomb the hotel in Baghdad in which the American press was staying without giving any warning. (Laughter). So those, those things happen. Look, I don’t think the press can expect to be popular all the time and I wouldn’t want it to change it’s reporting just to be popular. On the other hand, when you decide whether to go to court, you’re making a decision which is going to have a lasting impact, as a matter of law, on the ability of the press to report and on the ability of the public to learn information. So it is not necessarily ignoble for the press to say, as it were, to themselves, at least “Let’s let this lawsuit pass. We’ll, we’ll have other wars, unless we’re lucky and we’ll have other opportunities to challenge restrictions, but not now”.

Heffner: But then, of course, as we end the program, we get to the Abrams doctrine which is that if you let it go now, it’s going to be worse down the road.

Abrams: That’s why it’s so confusing.

Heffner: Floyd Abrams, thanks again for joining me today on THE OPEN MIND”.
And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P. O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: the Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; The Edythe and Dean Dowling Foundation; the New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.