Captions Copyright National cable satellite corp. 2008 they followed your lead, published the papers. At least were not alone. I have to tell the audience just a small eye roll here, because the New York Times was the first to publish the papers, but thats drama, after all. I wanted to ask both of you from a legal strategy standpoint, Daniel Ellsberg sending it out to so many papers, how does that change the governments ability to prosecute the case . Well, floyd should be the one to answer that first because he was directly involved. Right. Well, it did make it harder to prosecute the prior restraint case, the case that weve been talking about, against the times and then other papers. They did bring actions against the post, and the Christian Science monitor and other papers, you know, who got the papers from elsberg, to stop them as well. But one judge in the District Of Columbia board of appeals put it very well when lawyers were in front of him on this case. He said, youre asking us to try to stop a swarm of bees from publishing material. There were so many entities publishing them so quickly that the idea of wording this so that everyone could be enjoined was getting to be impossible. I think that had an impact, a real impact on the Supreme Court, because if they came cant effectively limit publication, whats the point of doing it . Daniel ellsberg understood the concept of going viral before we got to it today. Well, absolutely, and that is the situation, and floyd was there and knows, but once this genie was out of the bottle and it was showing up everywhere, and you went through the timeline for the court, the Supreme Court of the United States had very little time to know what they were doing. The justices repeatedly said we dont know what were dealing with. We dont know what the facts are. We havent had time. In fact, one or more of the justices in the dissenting opinion was critical of the New York Times saying, well, you had three months to look at this and to decide what you wanted to publish, and youre giving us no time and a couple of days, or less than that, to brief i think as floyd already said, some of the briefs were filed the same day as the oral argument in the United StatesSupreme Court. So the justices were frustrated because they didnt have time, but they were also realists, because they knew that all this stuff was happening, ellsberg had put it out everywhere, and what could they do with a judicial decree to stop something from happening that was already happening . They resorted to the fact that you maybe can prosecute these people, but we really cant stop them from these documents or this material from being out in the public because its already out there. In our next segment, well learn about the case at the Supreme Court, but its time for some of your phone calls. Lets hear from peter in elizabethtown, pennsylvania. Hi, peter. Caller hello, and thank you, ms. Lane. I have to say a quick congratulations. The landmark cases series is just so good. Pure gold. Thank you. Now, to your excellent guests. This case is so fascinating. I apologize if this is sort of a stupid question. While i have no doubt that the pentagon and other agencies abused their classification powers trying to keep secrets that would in no way have an impact on our National Security or our servicemen, and i think this ruling was very beneficial, a great thing for our nation, i had never quite understood, werent there copyright laws back in the early 70s . These documents were taken from the Rand Corporation. Didnt the Rand Corporation and possibly the pentagon have recourse to say this is our intellectual property . Weve been working on this report for years. Well decide to publish it, and you cant sell your newspapers by publishing our property. Sorry if thats a stupid question. No, its not stupid at all. Its a very interesting area, in fact. The papers belonged to the United States of america and there is a statute which says that United States does not have copyright rights over papers. So, fortunately for us, that was not an issue. I will add that the solicitor general of the United States in his arguments for the government against the times cited copyright law in just the way you just did. And he said, in effect, look, if we had a copyright on this, we could ban it. This is worse than that. These are National Security documents. Surely, we ought to have the power to limit those documents from coming out for that reason. Well, theres one more point to add to that. I think that is a very good question, because in the arguments in the Supreme Court, and one of the justices, or more of them, said about the New York Times, youve copyrighted your article. You intend to prevent other people from using the stuff that youve copyrighted, so you want to have a prior restraint on somebody else taking your material as under the copyright laws, and yet, you deny that same route to the United States. It was a very interesting point. Next to steven in washington, d. C. Caller oh, hello what an honor. Wow. So great to talk to you. I admire and respect all three of you very much. I was wondering whether you agree the sharing of intelligence information has sort of been institutionalized between the media and various administrations and intelligence communities. Do you want to do that, ted . Well, it certainly has, and weve seen that in the last two years in abundant detail. I mean, there are massive leaks of information, some of it we all know about the wikileaks and the 2016 president ial election, and there is this symbiotic relationship between the press and the people that get this snowden and so forth. But floyd and i were talking before we came on the show floyd came up with some very, very important affidavits that showed that it was happening and has happened for a long time, and he showed the court that there is this culture in washington that involves the leaking of classified information to suit the governments purposes in various different contexts. Floyd can explain this better than i can. But the same thing that were talking about today in much greater volume was happening then. Yeah. Yes, and that was more as a question, or quite rightly use the word, it was almost institutionalized in that sense. A small group of journalists trained in this area worked very closely with and received leaks from people in the government who wanted certain information out for some reason, some to promote National Security, some to make sure that the army got more money than the air force, some to make sure that so and so didnt get credit for something when they wanted someone else to get credit. That still exists. But at this time and there was a brilliant, brilliant affidavit by max frankel, formerly the executive editor of the New York Times, which i really recommend to you all, outlining how the system, almost, of Mutual Benefit by leakage existed at that time. Rick is up next, louisville, ohio. Caller yeah, hey, guys. In the last 20 years, ive had three books published, and i grew up in detroit back in the 60s and the 70s. We were the greatest country in the history of mankind. We had laws in place. We had trade laws, tax laws, banking laws, antitrust laws. But the most precious of all laws were the laws that were created by the generation, the greatest generation that basically regulated the media fairness doctrine and whatever. And you know, youre talking about vietnam. Vietnam was started by Lyndon Johnson. Lyndon johnson was a texan. The last five wars have been started by texans. Weve been at war for 20 years. Clear channel radio had 1,500 a. M. Radio stations during the bush administration. At t comes out of the state of texas. Georgia has cnn and time warner loaded with military bases. The east coast, connecticut and new york and california, thats your liberals, loaded with wall street, loaded with, you know, the treasury and the Federal Reserve and silicon valley. Rick, im going to jump in because youre really taking us in a much broader sense than the case, so thanks for your call. Our time is short, so with apologies, im going to move on to john in west lake village, california. Go ahead, please. Caller yeah, my question is the model thats being proposed is this american model, a rising of the american constitution. My question is, the british, they have a prior restraint law, they have a state secrets law, they have very strict libel laws. They seem to have a pretty rigorous, fair press, maybe even better than ours. Why is the model that mr. Abrams is proposing better than the other model . Thank you. Well, first, i really dont agree that they have a better press or have had for many years a better press than we do. Thats a judgment call. Second, when british editors want to publish something, they come here. Thats what happened with the snowden materials. They were released through an american subsidiary of the guardian. And british journalists are very envious, indeed, of the free press that we have. More broadly, yes, there are different ways for democratic societies to be organized, and in terms of striking balances between freedom and liberty and other important interests, we lean very heavily in the direction of more freedom of the press, more freedom of speech. I think thats a good idea, but there are other ways to run Legal Systems and other ways. Canada is more restrictive than we are. I prefer our system. And when you read our cases, i think theyre really very powerful. On to the court in 1971. As we said, chief Justice Warren burger, and were going to tell you about the other members of the court, the nixon appointees were chief burger and harry blackmun. Justice appointees, thurgood marshall, kennedy appointees byron white. Eisenhower is still on the court, John Marshall ii, William Brennan and Potter Stewart and hugo black and william o. Douglas roosevelt appointees made up the nine. The case was heard 13 days after the New York Times published that first article. There were two hours of oral arguments. And were going to listen to a little bit. Tell me how the legal team was assembled and what the decision was, or the argument. The chief counsel for the New York Times was professor Alexander Bickel from yale law school. Professor bickel under whom i studied at law school was viewed in the language of those days as a conservative academic. He had clerked for Jason Justice frankfurther. He was, as he once put it to me, not a First Amendment vo lup tu wary and he was not. And indeed, if there was any criticism of the times lawyers presentations to the court at every level made then and even now, it was that we didnt talk enough about the First Amendment. We talked about the separation of powers, we talked about statutes, we talked about a lot of things which we thought might be easier to attract the votes of conservative jurists on the court. Were going to listen to a portion of alexander bickles argument before the Supreme Court. Let me give you a hypothetical case. Let us assume that when the members of the court go back and open up this sealed record, we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers. What should we do . Mr. Justice, i wish there were a statute that covered youre posing the case, of course, mr. Justice, in which that element of my attempted definition which refers to the chain of causation being i suppose in the great, big, global picture, this is not a national threat. There are at least 25 americans killed in vietnam every week these days. No, sir, but i meant its a case in which the chain of causation between the act of publication and the feared event, the death of these hundred young men, is obvious, direct, immediate thats what im assuming in my hypothetical case. I would only say to that that it is a case in which in the absence of a statute, i suppose most of us would say you would say the constitution requires that it be published and that these men died, is that it . No. No. Im afraid that the inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort. So, help us understand this hypothetical. What was the justice getting at there . Well, the justice was saying, i want you to assume that as a direct result of publication of the pentagon papers, 100 young men are going to get killed. Are you telling me that the First Amendment requires that we allow that to be published . And now, this was professor bickels first argument anywhere. This was his first case and his first argument in the Supreme Court. The first thing he did was what great advocates like ted will do sometimes, which is not quite to answer the question, try to bring the justice a little bit away from it. Justice stewart would have none of that, insisted on a direct answer to the question, and professor bickel gave what he considered, and i considered, the most essential, critical, and needed answer, which was, yes, in that situation, a prior restraint would be consistent with the First Amendment. That was a controversial answer. The American Civil Liberties union the next day filed a brief in the court denouncing that answer, a very rare thing in Supreme Court practice. But it was one that he thought was essential to win over or keep the votes of the two members of the court, Justice Stewart and Justice White, that we thought we needed the most. One of our viewers, joe paulson, writes this bit sounds like a got you but not sure where to draw that line. What the article saved the lives of thousands of people but in the process a limited number would tie. Hes right. It is the kind of hypothetical questions that justices ask not to embarrass the advocates, but to probe where the limits are. Those are these kind of questions that advocates have to deal with in the Supreme Court and theres usually no perfect answer. You are talking to nine different Supreme Courts, its not one Supreme Court, and as floyd said, what he had to do was to be mindful of the fact that he had a certain number of votes that he was probably not going to lose, he had a certain number of votes that he was not going to win, and Justice Stewart and Justice White were the two that he needed. He needed one of the two or both of the two if he could to win the case. What he was doing, for someone who had not argued in the Supreme Court before, i agree with floyd, this was a very adrite and careful answer because he gave a reasonable answer, he preserved his position, he didnt lose a vote that he might otherwise have lost if he had taken a categorical position that yes, this is an absolute thing under the First Amendment. I am going to have to jump in because of time. I want to get earwin griswold, a position that ted olson held, president nixon kept him on, lets listen to some of his argument. But i also think the heart of our case is that publication of the material specified in my closed brief will, as i have tried to argue there, materially affect the Supreme Court of the United States. It will affect lives, it will affect the process of the determination of the war, it will affect the process of recovering prisoners of war. I cannot say that determination of the war or recovering prisoners of war is something which has an immediate effect on the security of the United States. I say that it has such an effect on the security of the United States that it out to be the basis of an injunction in this case. Ted olson, what was he saying . What he was saying is, i am speaking on behalf of the United States, i am telling you, based upon the material that we have in the possession of the United States, that the publication of this material will damage the United States in various different intangible ways. I cant say that it will have this specific result immediately, but this is dangerous material. We have a responsibility to protect the United States and protect the citizens of the United States and im telling you, to the Supreme Court, dont let this happen because it will cause great harm. Hes really putting it to them at that point. And thats a very strong argument to make, even if it isnt much supporte