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My play, which some of you have seen, focuses on the story of The Washington Post because that story was more compressed and, in some ways, even more dramatic. The Post’s lawyers had several concerns: Did the papers contain secrets that could jeopardize the nation’s security? Would the paper’s finances be damaged if they were to publish? Most frightening, perhaps, might publication be considered espionage – and might a few editors or executives be sent to prison. During a single tense day, the Post’s lawyers and editors debated whether to give the government a chance to know that they had a copy of the papers and give them a chance to identify any true secrets. Ultimately the Post’s principal owner, Katharine Graham, sided with her editors and not with her lawyers and she decided to publish. In a sense, it’s a woman’s story, since Mrs. Graham, who was the first and only woman in America to control a paper as important as the Post, had to choose between her editors and her financial and legal advisors. She took a risk that, in the end, helped to make the Post an even more important publication. In the United States, we have three levels of federal courts – district courts, courts of appeals, and the United States Supreme Court. After a series of decisions by district courts and appeals courts, the government’s cases against both The New York Times and The Washington Post went to the United States Supreme Court. There are nine United States Supreme Court Justices. In a very unusual decision, every one of the justices wrote an opinion. The lawyers and law students among you have read various U. S. Supreme Court decisions and you know that there is usually a majority opinion and sometimes a dissent and perhaps a concurring opinion and a second dissent. But in this case, each justice wrote an opinion setting forth his views. So there were nine different opinions. Since six of the nine justices said that the papers should be allowed to resume publication, the Pentagon Papers case was clearly a victory for the press. With nine opinions, there was no clearly articulated rule. But most experts agree that the opinions, when taken as a whole, stand for the position that the government can only stop a newspaper from printing if the nation is at war, or in a situation similar to war, and if the government’s lawyers can prove that stories contain information that will inevitably, immediately, and directly put lives at risk. That is a very high standard. In the Pentagon Papers case, the government could not meet that standard. So finally, the government allowed The New York Times and The Washington Post to resume publication. Importantly, some of the decisions favoring the newspapers over the Nixon administration were written by judges appointed by the ruling political party, and named during the years when Nixon was either the Vice President or the President of the United States. Our courts are an independent branch of government. They have the responsibility to follow the law and the power to rule for the press, even when the President who named them to office is against the press. And so my play, and this talk, is, in part, about an independent judiciary. Without an independent judiciary, and a nation that will respect its decisions, it is probably impossible to have a truly free press. But the importance of a free press and an independent judiciary isn’t the end of the story. The play – and this talk – is not just about the role and power of the government and the courts. They are also about the role and responsibility of the press.

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FY Chang Lecture  

National Security vs. Free Speech: An American Case Study

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