By Vikram David Amar and Alan E. Brownstein
[Cross-posted from Verdict Justia]
The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.
Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.
In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.
Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.
The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.
The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.
The Rule Against Judicial Prior Restraint
The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.
Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.
To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.
Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.
The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.
But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.
What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.
The So-Called Collateral Bar Rule
The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.
Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.
According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.
Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.
But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.
Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?
Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.
Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.
