“Congress shall make no law… abridging the freedom of speech.” — First Amendment to the U.S. Constitution
In the oral argument of the famous U.S. Supreme Court cases known collectively as the Pentagon Papers Case, the late Justice William O. Douglas asked a government lawyer if the Department of Justice views the “no law” language in the First Amendment to mean literally no law. The setting was an appeal of the Nixon administration’s temporarily successful efforts to bar The New York Times and The Washington Post from publishing documents stolen from the Department of Defense by Daniel Ellsberg.
The documents were a history of the Vietnam War, which revealed that President Lyndon B. Johnson and his secretaries of defense and state and the military’s top brass materially misrepresented the status of the war to the American people. Stated differently, they regularly, consistently and systematically lied to the public and the news media.
Though LBJ was retired, Nixon did not want this unvarnished version of the war he was still fighting to make its way into the public arena. The Nixon DOJ persuaded a federal district court judge to enjoin the publication of the documents because they contained classified materials and they had been stolen.
In a landmark decision, the court ruled that all truthful matters material to the public interest that come into the hands of journalists – no matter how they get there – may lawfully be disseminated. That does not absolve the thief – though the case against Ellsberg was dismissed because the FBI committed crimes against him during his prosecution – but it does insulate the publisher absolutely against civil and criminal liability.
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