Freedom and the Press
It is doctrine in the newspaper business--and a disgrace to our profession--that the press does a miserable job of reporting news about itself. We cover wars and Watergates, politics and pollution, riots and romance like rain on a flat rock. Yet we approach stories about our problems and our accomplishments with a shyness and discomfort that mock our reputation for toughness.
As a result, at a time when the press faces major problems, and when the public is focusing--as rarely before--on the press as a root of major evil, the public still knows almost nothing about the press, and the press is doing precious little that isn't paranoid, shrill or defensive to correct this critical deficiency. Since Vice President Agnew has resigned to escape a jail sentence, it is easier to see--and say--that the press has overreacted to criticism, particularly criticism from on high. Long before Spiro T. Agnew launched his alliterative assault on the press, an earlier vice president, with far more impressive credentials, had staked out criticism of the press as his own territory.
"Nothing can now be believed which is seen in a newspaper," he wrote. "...that man who never looks into a newspaper is better informed than he who reads them: inasmuch as he knows nothing is nearer to the truth than he whose mind is filled with falsehood and errors." This was no run-of-the-mill vice president, but Thomas Jefferson, better known and more often remembered for his stated preference for newspapers without government over government without newspapers.
It is obviously fair to say that criticism of the press by the high and mighty is nothing new, just as it is historically accurate to note that newspapers and newspapermen have an encouraging way of outlasting any particular critic.
Criticism of the press does not threaten the press or the republic until and unless this criticism is part of a general offensive against the press. It is my thesis that the press today is the target of exactly such an offensive. It is my thesis that the freedom of the press is threatened today as it has not been since the expiration of the Sedition Act in 1801.
Journalists like to believe that it is no accident that the First Amendment comes first, that all constitutional rights depend on the right to know, and that the right to know depends on a free press. But here, too, the press has done a miserable job in reporting and explaining the importance--in simple, relevant, human terms--of the First Amendment or the threat to the First Amendment. It is such a simple, splendid concept, the First Amendment: No one in government can interfere in the process of gathering and printing news.
It is appalling to me to realize how apathetic the public can be in the face of so much government interference in the process of gathering and printing news:
In Baton Rouge, Louisiana, two reporters were held in contempt of a U.S. District Court order barring them from covering a public civil rights hearing.
A Massachusetts trial judge has ordered a Wall Street Journal reporter to disclose the name of the source of her story about a prominent builder.
The Florida Supreme Court has upheld a long-forgotten and unused 60-year-old law requiring newspapers to give equal space to political candidates who have been criticized in print. The case, involving the Miami Herald, is being appealed to the Supreme Court.
I have a list of 27 cases--all in the last two years--where laws and decisions by government were made restricting the freedom of the press. It is neither paranoid nor shrill, nor even defensive, to point out that such actions are apparently forbidden by the First Amendment.
In March of 1973, the Nixon administration introduced a bill in Congress which, if enacted, will quite simply emasculate freedom of the press, and end for all time the noble art of investigative reporting. The bill makes it a crime, punishable by jail terms of from three to seven years, or by fines of from $25,000 to $50,000, or both, for anyone authorized to control or possess classified information to communicate this information to anyone not authorized by the government to receive it.
Classified information is defined as any information marked or designated pursuant to the provisions of any law, executive order, regulation or rule as information requiring a specific degree of protection against unauthorized disclosure for reasons of national security.
The proposed law specifically precludes as a defense against prosecution that the classified information was improperly classified at the time of its classification, or at the time of its disclosure.
Laws already on the books make it a crime to divulge secrets about electronic codes and surveillance techniques, about military equipment, about atomic secrets, and about military operations which might aid an American enemy.
The proposed legislation would make it a crime to reveal any classified information, however wisely or unwisely classified, military or non-military, true or false.
It would prevent publication of information in government offices about a war we fought 30 years ago, and 75 million pages, still classified, about the Korean War.
It would prevent publication of a classified White House "Talking Paper," instructing a presidential assistant to "put someone on The Washington Post to needle Kay Graham...set up calls or letters every day from the viewpoint of 'I hate Nixon but you're hurting our cause in being so childish, ridiculous and overboard in your constant criticism.'"
In short, it would prevent publication of any information which the government did not want published. This is the goal and practice of dictatorships, not democracies.
Ironically, five days before this official secrets act was introduced in Congress, Patrick J. Buchanan, special assistant to President Nixon, told 2.5 million people watching the Dick Cavett show: "Never in the history of the United States has there been a greater exercise of freedom of the press."
It is neither paranoid nor shrill, nor even defensive, to suggest that this proposed legislation is inconsistent with "great exercise of freedom of the press."
In the last 30 months, The Washington Post has been involved--to understate it--in the three great First Amendment fights of our time: the publication, followed by the injunction against publication, of the Pentagon Papers in June of 1971; the Pulitzer Prize-winning reporting of the Watergate matter and its endless sequels, from July 1972 to date; and the full-scale campaign by the Committee for the Reelection of the President later by then Vice President Spiro T. Agnew to subpoena "all documents, papers, letters, photographs, audio and visual tapes" and "all manuscripts, notes, tape recordings of communication," and "all drafts, copies and final drafts of stories, columns and/or reports" and "all writings and other forms of record, including drafts, reflecting or related to direct or indirect communications."
To understand The Post's role and its motives in the three great First Amendment issues of our day, it is essential to understand the adversary relationship between newspapers and government, generally, and the adversary relationship between this newspaper and this government in particular.
Newspapers exist to serve the interests of the governed, not the governors, in the words of Justice Hugo Black. It is the conflict of these interests that produces the adversary relationship that is one of the hallmarks and strengths of a democracy. The first distinctive example of the adversary relationship between the Nixon administration and The Washington Post came during the litigation on the Pentagon Papers. It came from Richard Kleindienst, then Deputy Attorney General to Kenneth Clawson, then a reporter for the Post, now a leader in President Nixon's White House attack group. The occasion was a bit of social drinking at Kleindienst's house after an evening of culture at Wolf Trap Farm.
Did Mrs. Graham fully understand, Kleindienst wanted to know from Clawson, the law involving ownership of television stations? Specifically, the law that prevented convicted felons from owning broadcast properties? If we persisted in publishing the Pentagon Papers, the deputy attorney general went on, and if we refused to turn them over to the Justice Department, we were laying ourselves wide open to criminal prosecution (as distinct from the civil suit then in progress to prevent us from publishing the papers) under the Espionage Act.
He personally was in favor of prosecuting The Post, he continued, and conviction would force us to get rid of our broadcast properties. This conversation was duly reported to the editors by Clawson, and it sounded then--as now--a little like blackmail.
The next hints were anonymous, but plentiful...reports from friends to take it easy; "they" were out to get us. Then, a "high White House official" was quoted in Time magazine to the effect that "the name of the game (in the White House) is who can screw the Post the most." (A "high Time official" later identified to me the White House source of this vulgar little gem as Mr. William Safire, then a special assistant to President Nixon, now a columnist for The New York Times.)
In November 1972, President Nixon gave an exclusive interview to The Washington Post's competition, The Washington Star-News--an interview which contained not a single word about either Watergate or the war in Vietnam, incidentally. The interview was privately but pointedly advertised as "punishment" of The Post.
In December 1972, the White House put up an extraordinary, if petty, barrier against The Post and its exercise of freedom of the press. For 28 days a Post reporter was banned from covering all White House social functions. If the action was extraordinary, the target was more so. Dorothy McCardle, the widow of a journalist who served as assistant secretary of state under John Foster Dulles, had been a journalist for 48 of her 67 years in Philadelphia and Washington. In all that time, she had been universally loved for her kindness and admired for her ability. Her exile could be interpreted only as government interference and punishment.
Thus concretized on the public record lies the documentation of a systematic, covert corruption of the free reporting that is essential to freedom of the press. If the mind could any longer be boggled, surely this picture of a government plotting in secret to "tear down the institution," "to pound the magazines and the networks," to threaten the media with anti-trust prosecutions and IRS investigations to "change their views," to "plant" columns, to "generate...(and even write) a massive outpouring of letters" where no public impulse to do so existed, to "needle" a publisher, to "pester" a newspaper, to threaten networks with legislation abridging their freedom, to think of firing or discrediting a journalist, surely such cheap and undemocratic actions must boggle the most cynical mind.
Twice in 1973, The Washington Post was taken to court by citizens seeking to abridge, massively perhaps, the most fundamental weapon of a free press: the right of a newspaper to keep its sources confidential. If governments or citizens can force newspapers to reveal the sources of their information, the free flow of reporting that Lippmann described as essential to freedom of the press will be seriously impaired. A news source who can be identified can all too easily be "fired or discredited," in the immortal words of White House aide Patrick Buchanan. The ultimate loser is neither the newspaper nor the source, but the public. Information withheld is knowledge limited, and a public with limited knowledge is like a fireman with a limited water supply.
In March of 1973, reporters and managing editorial personnel from The Washington Post and three other major news organizations were subpoenaed by the Committee for the Reelection of the President. The subpoenas demanded production of all documents, papers, letters, photographs, tapes, manuscripts, notes, drafts, copies and final drafts of stories about the Watergate. Freed of legalese, they wanted to know who was talking to The Post.
In October of 1973, Vice President Spiro T. Agnew asked for virtually the same material from reporters from The Washington Post and other news organizations. He wanted to know who in government was fingering him, so he could deal with them personally or have the President "summarily" fire them.
Both efforts to subpoena Post reporters failed, but not before major expenditures of energy and money. District Court Judge Charles Richey held that the First Amendment protected reporters against even having to appear at depositions in this civil action. And the Agnew subpoenas fell with the vice president. But the fight for freedom of the press is often exhausting and always expensive. The Washington Post spent close to $100,000 in legal fees to fight these subpoenas and a dozen lesser attempts to force Post reporters to divulge their sources. (Pursuit of the First Amendment freedom in the Pentagon Papers case two years earlier cost some $85,000.) This kind of expense is not easy for many newspapers to bear.
The point to be made is neither exhaustion nor expense. The point to be made is that there is a fight, the battle is joined between those who would abridge the freedom of the press and those whose commitment to excellence finds this abridgement intolerable. During the last three years alone, prior restraint has been seriously and successfully used against the press; a carefully orchestrated and well-financed plan to corrupt the free flow of information between the press and the public has been conceived and implemented; major efforts to force journalists to reveal their sources have been prosecuted; and journalists have gone to jail in defense of this vital freedom.
This dark dossier of threats against the First Amendment by which a newspaper lives and the republic survives is the most significant trend I can find in journalism today.
BEN BRADLEE is executive editor of The Washington Post. These remarks are excerpts from a speech he delivered at the Crimson Press Inaugural Dinner in March.