Friday, February 23, 2018

The Post - and Justice Hugo Black

Regular readers know me as a severe critic of many "historical" films, such as Bridge of Spies, Selma, and The Birth of a Nation (by Nate Parker.)  I was worried about The Post, the story of Ben Bradlee (Tom Hanks), Kay Graham (Meryl Streep), and their decision to continue publishing the Pentagon Papers after an injunction stopped the New York Times from doing so, but I was very pleasantly surprised.  I knew Hanks wouldn't have the proper GI generation gravitas to play Bradlee, but he did much better than I expected.  Streep had a difficult assignment too because Kay Graham simply did not project the strength of her personality (just search youtube if you want proof), but Streep didn't try to make her something that she was not.  Some complained that the design of the movie slighted the more critical role of the New York Times (and of Daniel Ellsberg himself), but I didn't.  What I really liked, however, was the ensemble cast, the production design, and the very sincere and successful attempt to recreate the atmosphere of 1971.  The portrayal of the middle aged men of that generation was accurate, and we saw how they got the job done.  Steven Spielberg has usually put a lot of thought and effort into historical films such as Schindler's List and Lncoln, and he did this time, too.

Having said all that, however, today I want to share with my readers what was, for me, the highlight of those tumultuous two weeks: the Supreme Court's decision to let publication go forward, and in particular, the opinion of Justice Hugo Black.  Elected to the Senate from Alabama in 1926, replacing another distinguished, progressive southerner, Oscar W. Underwood.  Although he was elected with the support of the KKK, Black rapidly emerged as a liberal on everything except race--a southern species that was quite common from the 1930s through the 1950s, until it was driven out of politics in the wake of the civil rights movement.  In 1937, in the midst of the court packing crisis, Franklin Roosevelt appointed Black to the Supreme Court, and he was confirmed. Subsequent to his confirmation, the story of his membership in the KKK leaked, causing a sensation.  Walter White, the Executive Secretary of the NAACP, declined to join the hue and cry over the news, telling all who would listen that Black was a real liberal who belonged on the court.  His judgment was vindicated over the next 34 years.

Black was a liberal on a variety of legal issues, and he joined the unanimous majority in Brown V. Board of Education in 1954 and remained a strong supporter of civil rights thereafter. But his most moving opinions related to civil liberties, and especially to the First Amendment.  During the Second World War, when the Congress added an amendment to an appropriations bill forbidding the payment of salaries to three left-wing New Dealers, Black wrote an opinion invalidating the decision.  The Founders, he said, knew the dangers of legislative punishments from their study of English history, and had therefore outlawed Bills of Attainder--of which this was one.  In the midst of the bitterest period of the Cold War and McCarthyism, Black also argued unsuccessfully that the Smith Act, which was used to convict the leaders of the Communist Party of the US of "conspiracy to advocate" overthrow of the government, was unconstitutional on its face.  Later in the decade the court came much closer to his view.  In the late 1960s Black did an hour long interview with Eric Sevareid of CBS, one which I regret to find is not available on youtube. Sevareid started the interview by asking Black if recent Supreme Court decisions had made it more difficult to convict criminals.  "Of course they've made it harder to convict criminals!" he replied. "But look in the Constitution!" he added, pulling his pocket copy out.  "A defendant must be provided counsel! You need a warrant for a search!" And so on.  Black, in short, believed that the words of the Constitution, and particularly of the Bill of Rights, meant exactly what they said.

Black was 85 years old and his abilities were failing when the Pentagon Papers case reached the Supreme Court in the summer of 1971.  He wrote a separate, concurring opinion providing for publication.  It was by far the most moving of the opinions, as readers will see in a moment, and it remains one of my three or four favorite opinions from the whole history of the court.  It was also his last opinion.   Recognizing that his health was failing, he retired--one of two departures whose seats were filled by Lewis Powell and William Rehnquist.  A few months later, he died.

Many years ago, a friend of mine named Tom Kerr, the head of the ACLU chapter in Pittsburgh and a fellow Carnegie Mellon faculty member, told me the story of Black's funeral, which he attended. Black knew, of course, that President Nixon and Attorney General John Mitchell, who had tried to stop the publication, would attend the ceremony.  He left instructions that his last opinion be read in full to conclude the service.   It was a fitting summary of his most important views and really of his life on the court, and he movingly concluded it with a bow to Charles Evans Hughes, the first Chief Justice under whom he had served.  It put the publication of the Pentagon Papers, a turning point in our history, in the whole context of our history, and it did so in absolutely unforgettable language. This is a big week for History Unfolding.  Sometime in the next few days--probably Sunday or Monday--this web page will receive its one millionth visit since I started writing this posts in the fall of 2004.  This is a fitting text to mark that occasion.  Here it is.

I adhere to the view that the Government's case against the Washington Post should have been dismissed, and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe
that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view, it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. [Footnote 1] They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. [Footnote 2]"
(Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press. . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.[Emphasis added, DK.]

The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law,' and I would seek to persuade the Court that that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States. [Footnote 3]"

And the Government argues in its brief that, in spite of the First Amendment,
"[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief. [Footnote 4]"

In other words, we are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. [Footnote 5See concurring opinion of MR. JUSTICE DOUGLAS,
post at 403 U. S. 721-722. 

To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. [emphasis added.]

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice that he was -- when the Court held a man could not be punished for attending a meeting run by Communists.

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. [Footnote 6]"

I will never forget the excitement with which I read those words in a St. Louis newspaper, in the midst of my four months' active military service at Fort Leonard Wood, Missouri.  Years later, my friend Tom Kerr heard them read from the pulpit of the National Cathedral, and watched Nixon, Mitchell, and other leading members of the Administration walk out down the middle aisle. They were, he said, purple with rage.  Justice Black's words live on.


7 comments:

Ed Boyle said...

You have heardthe word 'co-opted'. This defines our modern press. Nixon won, as do all angry conservatives, through devious means. The Press belongs to the security apparatus or they are all indoctrinated or related to the moneyed class, reliant on the war machine.

http://www.washingtonsblog.com/2016/01/americas-corrupt-press-destroying-country.html

You certainly are talking history. The history since then has likely ben written in some excellent books that would leave the mainstream press looking like Goebbels right hand man. How times have changed. Perhaps you could write such a history but then you would likely be blacklisted, become unpopular in your previous circles of respect, who now kow tow to the big lie. Where has yellow journalism gone of Upton Sinclair's 'The Jungle' I read for AP US history in 1981? The boomers dream was to cash in, to betray their ideal for grandpa Ronnie. They were 100% cynics and remain so. Situational ethics at its best. Good riddance democracy, free press, like justice system belongs to the rich and well connected.

Bozon said...

Professor

Thanks for this review and note on Justice Black and The Pentagon Papers.


I tend to side with Bobbitt, for a change, in Constitutional Fate, and Constitutional Interpretation, in his criticisms of Justice Black's, how shall I put it, blind textualist jurisprudence.


"In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.[Emphasis added, DK.]"


"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. [Footnote 6]" J. Black, in DK.



My views on the benefits ascribed to a free press by the likes of Justice Black and others, both especially before and also after the time of the Constitution, are contained on my blog, particularly those referring to Bailyn's Ideological Origins, and The Origins of American Politics.


The overthrow by violence and false propaganda of their own relatively good and benevolent British institutions, did not bother the colonists' and their very free press very much at all. On the contrary. It sort of seet an example our press has followed ever since.


Ed Boyle also has some perceptive remarks.


All the best

Bozon said...

Proessor
Interestingly enough, the issue of getting restraining orders comes up now, against private citizens, re gun owners who are thought, under various state by state criteria, to be risks of one sort or another regarding their legitimate gun ownership.

Needless to say, it will be easier to get such restraining orders against anyone targeted like this, right or wrong, than against any press organizations accused of publishing anything at all. The press of course will see to that, as it always has in the past, here.

All the best

energy flow said...

http://www.greanvillepost.com/2018/02/20/the-coming-wars-to-end-all-wars/

A critical article above linked about modern press behaviour comparing it to muckrakers turned rightwingers after WWI, kowtowing to the govt. warmongering. He mentions Oliver Stone's 4 hour intrview with Putin, how it was panned by the Post a year before it appeared sight unseen, how noone has watched whole thing. He mentions that USA/Israel doing best to start war with Russia/Iran in syria/lebanon and USA moviing toward killing 26 million North Koreans provoking China while press ignores legitimate concerns of encircled Russia. I suppose if we survive this the world will be quite different afterwards and as in science a new paradigm can only be accepted when older generation dies off. Pacifist post war Japanese and Germans come to mind. I imagine a post war America, unconditionally surrendered, utterly destroyed, disarmed, submissive. Sci fi that idea. Great novel.

Historianwannabe said...

Prof Kaiser,

I hate to be nit-picky, but do you realize you contradict yourself within this blog post when you say "Steven Spielberg has consistently put a lot of thought and effort into his historical films, and he did this time, too." in regards to the movie The Post versus your review of Bridge Of Spies, another Steven Spielberg film, from 2015. A snippet from your blog post (published in Time magazine) in Oct 2015:

"Bridge of Spies provides a reasonably accurate portrayal of the case, but its portrayal of the late 1950s—designed by Spielberg and a team of writers who include the Coen brothers, Joel and Ethan—appeals more to the prejudices of our own time than it would the reality of the world back then. The image of an intolerant anti-Communist citizenry and a hopelessly evil U.S. government has been popular for decades, and we seem eager to believe it."

Not trying to play "Gotcha", just seeking clarification.


Mike

Unknown said...

After reading this article, it is gratifying to note that almost a quarter century after sitting in your War College seminar, and after recent televised interviews have depicted a graying Dr. Kaiser, that you have not lost a wit of enthusiasm for your subject, a visual and verbal enthusiasm that was infectious among the seminar attendees.

David Kaiser said...

Thank you, Unknown. I am very interested to know who you are and what you are doing now. If you put it in another comment I shall simply read it and not post it. Looking forward to it.
DK