What the Pentagon Papers Case Tells Us About Blogging: Prior Restraint and Liability

Posted by Cyberbear on October 29, 2010 in Blogging, Internet |

Posted by: Rachel Wolf

In 1971 a great achievement was made in the pursuit of free press: The Pentagon Papers case was decided in a per curium (anonymous) decision denying an injunction against both the New York Times and the Washington Post for publishing leaked papers regarding the United States policy during the Vietnam War. The Supreme Court, in its short, 3 paragraph majority opinion, declared that a prior restraint on speech comes before the court with a presumption of invalidity, requiring the government to prove a substantial reason to issue an injunction preventing publication. The Court agreed with the lower court, without elaboration, that the government had not met its burden.

The controversy began when leaked papers regarding the United States’ Vietnam policy during the Johnson and Kennedy administration were first published in the New York Times. The plan was for the times to publish the documents, one chunk at a time. While originally Nixon did not desire to take any action, Kissinger ultimately persuaded him that allowing the publication set a bad precedent for future leaked secrets. So, the administration sought an injunction against the paper based on the fact that the paper was publishing “national security secrets,” and was successful. The Times appealed the decision, which rose quickly through the federal court system to the Supreme Court as New York Times Co. v. United States, 403 U.S. 713 (1971).

The Washington Post, meanwhile, took matters into their own hands, and began publishing the documents themselves. This time the government also sought an injunction, but was unsuccessful. The government’s appeal resulted ultimately in a combining of the cases against both the Washington Post and the New York Times, forever known as the Pentagon Papers case. The time between the Supreme Court decision reversing the original injunction and sustaining the Post’s challenge was approximately two weeks.

Fast forward almost 40 years, and the internet has opened up a whole new world of available information. Some of the most controversial of that information in 2010 are the Wikileaks’ documents made available regarding the Afghanistan and Iraq wars. The most notable difference between the Vietnam documents leak and the Iraq war documents leak is availability of government action. Assuming for the sake of argument that the organization was based in the United States, the government could not (and did not) seek an injunction that would likely be successful after New York Times.

However, even if the government could have sought an injunction successfully, it would not likely matter in the internet age. The speed and effectiveness of the internet and bloggers in particular means that when information becomes available to one, it becomes available to all. Wikileaks may be an exception to the rule, in that they have made announcements a few weeks prior to releasing their documents on their site. This, they claim, is to ensure that information that would put individuals at risk is blocked out. Depending on the sensitivity of the information, or the integrity of the blogger, information has the potential to become available before anyone is prepared for it. Such is the beauty of the internet age.

So, what does this mean for bloggers? Certainly, the press is protected from prior restraint (as was the issue in the Pentagon Papers case). Prior restraint was abhorred by the Framers when writing the First Amendment, which is why prior restraint is still abhorred by the Court. This means that any injunction to prevent the publishing of content not only comes to the Court with a presumption of invalidity, but anyone seeking that injunction will not likely succeed. This means that bloggers can feel free to publish their content without prior restraint. It does not mean, however, that bloggers may publish anything without retaliation.

The Pentagon Papers case did not establish that journalists would be free from prosecution under anti treason laws like the Espionage Act. In fact, the journalists involved in the Pentagon Papers case were prosecuted under the Espionage Act, but were subsequently freed only due to a mistrial.

Bloggers must remember that just like less “controversial” journalists, they are subject to prosecution for violating these types of laws. Though the government today seems to be less reactionary to leaked documents incidents than it was in the 1970s (for example, the Wikileaks incidents in the summer and fall of 2010 has come with only a handful of comments from the administration about its relative unimportance) there is still a potential for criminal prosecution.

Something that is much more likely than opening oneself up to criminal liability under the Espionage Act is the possibility of a suit for libel. While a public figure must show actual malice to prove a claim of libel thanks to the case New York Times Co. v. Sullivan 376 U.S. 254 (1964), a claim by a non-public figure is much easier to prove in court. This means that bloggers must be careful to ensure that if they are blogging about an individual or individuals that their facts are straight to ensure a minimized risk of liability. Or, they may choose to blog anonymously, reducing the risk of liability due to the inability of the claimant to find the responsible person.

This is still a risky move, though anonymous speech is recognized by the Supreme Court as protected. Talley v. California, 415 U.S. 926 (1974). Different circuits have interpreted that level of protection differently in an effort to balance the speaker’s interests and the interests of the libel victim. Some courts, like the Delaware Supreme Court in 2005 have established the highest standard in order to force the revelation of an anonymous blogger in a lawsuit. Cahill v. Doe, 884 A.2d 451 (2005). Other courts, however, have set a much lower standard of proof in order to force the revelation of a blogger identity. In re Baxter, WL 34806203 (2001). This means that a blogger should still be careful to ensure accuracy in his blog, even when publishing anonymously. Because the Supreme Court has yet to decide how much protection an anonymous blogger is afforded by the First Amendment in the context of a libel suit, bloggers still run the risk of liability in certain states and districts.

The Pentagon Papers case was a great victory for free press and free speech in 1971. The formal establishment that the government could not restrain speech prior to publication without an extremely compelling interest opened the doors for journalists (and later bloggers) to expose government corruption. Bloggers must still remember that while they cannot be restrained from speaking, they may still be held responsible for what they publish under United States criminal laws or in the context of a civil libel suit.

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