tv [untitled] December 23, 2013 7:00pm-7:31pm EST
i think. i would like to do if you did you know the price is the only industry specifically mention in the constitution. that's because a free and open press is critical to our democracy recall folks. will. never go on i'm sorry and on this show we reveal the picture of what's actually going on and we go beyond identifying the truth rational debate real discussion critical issues facing up to go ready to join the movement and welcome the big picture.
for tonight's conversations with great minds i'm joined by someone who played in this central role in one of the most important first amendment cases in modern american history james c. good ale was vice chair and general counsel for the new york times published the pentagon papers and led the paper's legal team in its fight against the nixon administration he's often called the father of reporter's privilege means to this day a powerful advocate for the freedom of the press in addition to his legal work goodale as taught at yale and why you fordham university his new book fighting for the press the inside story of the pentagon papers and other battles is a must read for anyone who wants an in-depth look at one of the most famous supreme court cases of the past forty years james goodale joins us now from our new york studios. welcome thank you for being with us or live thank you for having me so let's start with you before we get to the case i'm wondering if you were general
counsel for the new york times and a vice president as i recall of that well vice chairman let's go. charleroi ok thank you you all the better. what what brought you to that what made you interested in newspapers in the first amendment and provoked you to brought you to be the guy who was arguing this case before the supreme court well i think that he traced back what people are doing back to their childhood many times not all the times but many times there are connections and i was always interested in politics in the press when i was eight year old i used to put out my own newspaper as what you did when. many years ago today you'd be on the net or something. but i split up my own newspaper write the headlines and so it's a lifelong. addiction you might say that's remarkable remarkable it's been.
it's been forty years since the supreme court ruled six to three in the new york times case what made that case you call it a case for the ages. what makes that not hyperbole. well here's the way to think about the pentagon papers case without turning off your non lawyers or you know it's very simple what nixon tried to do is he tried to censor the new york times and later the washington post how did he try to censor them the sense of them by going into court and getting an order that you can't print you know it's a simple simple censorship what's interesting about it was the only time in american history that ever happened. during a bet is not going to happen. well now use the fancy term it's actually called prior restraint when i first heard that term when i worked of went to the new york
times i don't know what the heck admit it but it just means it just means censorship and so it's a case for the ages because the only time we have the case. and the press one the government lost and the tests or the rule of law or whatever you want to call it the supreme court laid down is very hard to meet almost virtually impossible which means that i don't think it's going to ever happen again and i don't think that caseload would be overruled it's fast i mean filled look at the arc of the history of this in seven hundred ninety eight the day that john adams signed into law the sedition acts he threw into jail been benjamin franklin bought ben franklin's grandson. published the war as i recall it was called whatever the newspaper was who had written because the because bloch had written and a trial in which he called president john adams. toothless and balding i mean that literally that got him thrown in jail and got his newspaper taken away
eighteen newspapers were shut down by john adams during that time and from then on and yeah we talk about very straight from then until the new york times where there are major any milestones or was this really a presidential case well no i mean this you know if it had never it had never happened before in a federal court there are some state courts maybe five or six that over the period of time that you describe that did try to censor the press through prior restraints but in each case the newspapers disobey them so you know it really was the first time in history now you talk about putting all those papers in jail you know lawyers like to say things are different there's probably a difference between stopping the press and then after you print something as you describe it go and grab that person and throw him in jail there's a fancy name for prior restraint and subsequent punishment i think where we are today is that i don't think we're going to have another censorship prior restraint
case. i'm worried about it and i say so in my book. book is that the government come around after publication and try to do it john adams did that issue although the alias edition disappeared and it's never been fully resolved it's open issue but i think that you can't shut a paper down and john adams today couldn't do what he did unless you can show a clear and present danger. to the security of united states from what was said and if you criticize the government. as you point out in your example that is going to meet that test you know then that was that was one of the major animating factors in the election of one thousand nine hundred and the reason why thomas jefferson referred to it as the revolution of eighteen because it was a repudiation of that you know that part of adams presidency but you know well you don't want to. go ahead but what happens in most of the countries in the world
is what happened as you describe it because. any time that you criticize the government there's been a long tradition throughout the world that you might be subject to a jail sentence because you know it's unpatriotic but we're way past that in this country so i think that if he did have a case where. let's take the snowden case for example or or the. new york times published snowden write. the government directly go in and punish the new york times for doing it after publication but you know i don't think it's going to happen and when it does happen. it's going to be a real constitutional battle but i think the press will probably win well and that's that's i'm curious how you think the the your case the new york times case pentagon papers case how that has changed american journalism over the last forty
years and is there a straight line or even a. this squiggly line between that and we can leaks and and what snowden did with you know working with glenn greenwald and the guardian in those releases. you know what all glenn greenwald we all know he's the former blogger to whom snowden leaked right i mean he's the sort of the modern day new york times in a way so what is there a straight line between the pentagon papers case and what happens today i think the straight line goes like this that if you're going to publish something like the snowden leaks. you'll probably go to the government beforehand and get a reaction to it before you publish and i think that's what greenwald did in fact in effect now. what's the straight line in pentagon papers case where you're not
going to go to the government i don't know what you're going to do if the government can go in there and stop you from doing so a major impact of the pentagon papers case is that people open has opened up publication because no one's going to be scared of being stopped the only thing they're worried about is whether they're after it will be a criminal process criminal prosecution so odd that means in the leak world that you're going to get a lot of leaks out there and by the way out there you go to get a lot more you argue and apropos of that if you know to bring this to the to the current moment in time you argue in your book that president obama's r. is arguably worse than richard nixon was when it comes to press freedoms is that first of all it's his we call have the first part of the question is am i accurately characterized in that or do you want to. change that or put no and so i
think that yeah i think that's generally generally accurate and we all remember this last summer. obama had a terrible. so my with up with the press he's in did more leakers than anybody in the history of the country and what i was worried about also. was that he was going to go after wiki leaks and a song for what i talked about earlier in the program this criminal action and do it on a legal theory that was going to be terribly troublesome now the nixon tried to do that that's to say criminally prosecute the new york times after publication after he lost the pentagon papers case he wanted to bites out of the apple and he had a grand jury going for eighteen months up in boston but it gave up and what is a palm a done he's convened a grand jury to indict a sourness is very much what and that's it and i say if obama goes forward with
that he'll be worse than nixon i think he's given a nixon a pretty good battle anyway but that was my major point now is since then in the last ten days the justice department is flawed or the state in which says it may not prosecute and i like to think my book had some influence on that decision but who knows i agree and i'm wondering if you think. obama being worse than nixon and to say it badly is a function of it being president obama. the man or the president or even the party or is it a function of the times is this is this how badly nine eleven has changed america we saw the bush administration reacted. you know you could say yes to a lot of your options but i think the last one is the most important we're in a nine eleven. post nine eleven syndrome still you know my goodness sometimes does
that happen but no one wants to take a stab that could be. construed later as giving some scope to terrorists who have their. act and do something like nine eleven because you then get blamed for being too generous with respect let's say the press with respect to eavesdropping. if you don't take a hard line and then there's another nine eleven you get blamed for not taking the hard line so the hard line. attitude is what's driving obama and so i believe yeah although that didn't happen to the bush administration i mean dick cheney was put in charge of the counterterrorism task force when they became when he became vice president they never met until a week before nine eleven and they had been warned loudly about bin ladin that he was coming to get us so you know some of the blame never materialized to it seems
like a like you know they're afraid of something has not happened anyhow i want to get into this. this whole issue of you know what how the times in ellsberg time and when you were when you were practicing law might be different from now beyond just the level of you know comparing presidents to presidents if we can get into that right after this break stick around for this more and more of tonight's conversations with great minds with jamesy good deals after the birth. but got a quote for you. that's pretty tough. stay where it's about story. let's give this guy a look let's be here about guns instead of working for the people both issues the beach were richer bridegrooms didn't. because. they did rather well.
welcome back to conversations of great minds i'm speaking with james c. goodale former general counsel for the new york times and author of the new book fighting for the press inside story of the pentagon papers and other battles and we mention is it as we will hit the break there that i want to get into how the times
may have changed beyond just nine eleven this is what jay daniel as ellsberg had to say on this program oh about six eight months ago areas. do you see a qualitative difference between what you did and what edward snowden did or yes regrettably it's a different country it was a different country i had a reason to expect that eventually i'd be out on bail as i was actually the judge put me out on personal recognizance but with a fifty thousand dollars bond if i didn't show up for trial and that's for the next two years including the end of my trial which led to the ultimate three four and a half months in court i was free to comment on the chase and say why i had done what i had done and what the paper night with. the today so assuming that what ellsberg was describing was at least a reasonable environment in which to be practicing journalism how do we recapture that if we've become so unreasonable. well i think that you recapture with courage
. you know this nine eleven post syndrome at some point is going to go away but it won't be tomorrow won't be next year and the only way that you're going to recapture the spirit is to be highly courageous now with respect to the times. in my to arm i thought it was courageous that's what i say in in the book and of course sometimes i had a lot more money than say the new york times today has the new york times is getting its courage back but it did hold a story that is similar to snowden's for a year. for which james rise and finally got the pulitzer prize it was all about the wiretapping done by the n.s.a. and one doesn't like to see those things happen because you're but you by out of the pressure of the times and you have to think about press freedom as something
that's goes on a straight line and that doesn't when we get in bad times for the nation name we now you know goes down and it should be it should be the same all the all the time . where do you were do we draw the line in terms of. what can be released i mean chelsea manning did a huge data dump the most famous part was that video clip and one could argue maybe the video clip of the u.s. chopper pilots killing the the reuters journalists and the other locals would have been enough you know but it was a huge data dump snowden has released large amounts to wiki leaks release reason releasing large amounts you talked about sort of the the atomic bomb the world war two threshold as it were but the the germans were working on a bomb the idea that if you had two pieces of highly enriched uranium and you threw them together with some conventional explosives was not
a secret at that point in time it was to do was enriching uranium. enough to be able to do it they were they were just behind us i mean at what point do we say here's the tripwire where this is something that really shouldn't be revealed and has anything like that come out in our lifetimes. well let me answer the second question first same thing come out like that in our lifetime. well and i do think you tar bomb is an is an example you know it may be for example the c. could with respect to the raid on bin laden that killed him. you wouldn't want that that released so there are some examples but i think that. in our time when we look at the. allegations of breaches of national security when you look at
them closely they never turn out to be anything now we talk about chelsea manning. she did breached asked security without huge data dump i mean it was millions and millions of of this and that you know i went through maybe the only person in america or his trial and tried to the best i could see whether he in fact it damaged nasa security so i think that he had so i think that in real terms. there aren't going to be many cases that come up against this exception but i think we always have to admit there is an exception because we don't want to be arrogant about the first amendment and say that it can never be beaten down but in the real world it's very hard to prove that national security trumps the first amendment i'm curious your thoughts on shield laws that would protect the first amendment or protect acts of journalism there's yeah well.
yeah well what is a shield. we had one of the best ones in here and i'm talking from new york city here in new york state and what did that what does it do it means when there is a source for a story a reporter doesn't want to disclose the reporter doesn't have to do disclose it and that's pretty much the rule in the states but in the federal courts you know we have state courts we have federal courts. in the federal courts there is no such statute i think there should be one. there was a pretty good pie the way hang around before obama came in and he messed it up by putting in national security exception in it and i think we will have some point on that it may not be tomorrow. i've. created a distinction perhaps only in my own mind to get your take on it between
journalists and acts of journalism it seems that if you're trying to craft a shield law or anything that has to do with journalism and you end up trying to define who is a journalist and this is what dianne feinstein has been trying to do in my view you you are dancing all over and around to maybe right through the first amendment saying well this person has the principal work for an organization or principally you know these kind of thing whereas if you instead say what what the first about her tax is not journalists but acts of journalism so it could be anybody who could be something as simple as a twitter you know or as sophisticated as a book or you know publication in a newspaper if it's an act of journalism it's protected your thoughts on that distinction. well i think that's a pretty good argument i think you have to put you down in washington you may be there already but in the senate. and in the senate and the argue it out i like
your thinking about it are you. talk about dianne feinstein and she. is a little conservative on these issues and she's. messing shall i say with a bill that would protect reporters a shield law a federal shield law and she's got an interesting provision in that where you know you have to work for a standard paper and you sort of have to be a regular a journalist which leaves a lot of people out today because you have bloggers you have grand greenwald so for them so on and then she has a provision in there but the court is free to decide whether a particular person is a journalist who doesn't fit that first category you know and she's almost done in a way thinking about it with you in a sense what you've done. your language would be a little better but she's got this interesting idea if the judge feels as you do he
can protect an act of journalism and i think that's the best part of the work she's done in this area all year because she's a real bear on this sort of stuff well unfortunately though leaving it up to a judge you know this is almost that prior restraint thing you know i mean it's like you're going to the judge to find out if this person is going to be determined innocent or guilty and and well i think you know by by defining them as you are referring. now he would prefer not to go to a judge. but i'd have some sympathy for the point of view that technology has changed the world so much this is a very difficult question to deal with and so well that would accept journalism but i buy your i buy your argument ok thank you i mean i in fact i could even extend that and say you know is this for example when you look at what chelsea manning did was that an act of journalism or was it an act of treason you know it's you know what kind of kind of behavior was it and i and all the way i would assert that it
was an act of journalism. because. there was no demonstration of an attempt to destroy your country in fact she was doing it for the most noble reasons it seems. but while it's important to distinguish distinguish between asked. and a communication and what she did she did not commit espionage whereas the espionage she would have had to take everything that she had and zipped it over to the russians you know by e-mail. but she didn't do that right she gave it to assign who i think it's a journalist. so you've got to separate the two out and then you go back and say but she was charged with filing the espionage act and you say you know our laws are really screwed up in this area and we really ought to think of leaking in some respects as a responsible. that doesn't get caught as being espionage it doesn't make any sense
and i would think with respect to. chelsea manning that case may be a little more difficult to make than maybe snowden's you know stones becoming euro if you believe that yeah well i do and that and i think maybe one of the reasons is for example recently seymour hersh presented a story of the washington post showing proving demonstrating that the obama administration was cherry picking intelligence with regard to chemical weapons in syria and the post decided not to publish it they said no thanks and so seymour hersh's went to the world and said look at this that i want to publish. is the is the a traditional media still serving that role of holding the government you know the fourth the state holding the government in charge. they are being challenged severely by the glenn greenwald's of the world glenn greenwald has got twenty or thirty millions or a million dollars to start his own. online newspaper if you will or whatever you
want to call it and. the online types are going to win this battle say it's an intramural one will who's better the sabs and papers or the new guys because establishment papers as i said a few minutes ago. you know would no necessarily have the same courage. that they had x. years ago i can imagine the washington post doing that in the era of ben bradley. passing on that story and they certainly didn't pass on water. pass on water and they certainly did not pass on the pentagon papers i mean and washington post. you know reputation and histories is very good with respect to these type of stories because you don't want to get blown away by someone who comes in and says you publish that you're going to damage nasa security because you know
it never turns out she did there you go and see goodell to think carefully that the book is fighting for the press the inside story of the pentagon papers and other battles thanks so much for being with us tonight so. here tara welcome to see this and other conversations the great minds go to conversations start. i would rather as questions to people in positions of power instead of speaking on their behalf and that's why you can find my show larry king now right here on our t.v. question. i
know c.n.n. m s n b c. news have taken some not slightly but the fact is i admire their commitment to cover all sides of the story just in case one of them happens to be accurate. that was funny but it's closer to the truth and i think. it's because one call attention and the mainstream media works side by side the joke is actually on you look. at our team we have a different approach. because the news of the world just is not this funny i'm not like damnit i'm not how. you guys stick to the jokes will handle the serious stuff that i got to.
welcome to nice conversations with great minds with on a porker on is known for her powerful no nonsense approach to problem solving and strategy development and says diverse fields as business education health and human services on it is the president and c.e.o. of prosperity works an organization that creates statewide initiatives in new mexico to develop and test high impact strategies to build the opportunities knowledge and relationship.