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I just went to see The Post, the “2017 American political thriller” featuring Meryl Streep as Katharine Graham and Tom Hanks as Ben Bradlee. (The publisher and executive editor of the Washington Post – respectively – at the time in question.)
It brought back a lot of memories.
The film – set in June 1971 – covered the month when both the Washington Post and the New York Times ran afoul of the Nixon Administration. Specifically, both newspapers ended up in the U.S. Supreme Court, charged – essentially – with treason. At stake – also essentially – was the future of freedom of the press in the United States. (You know, that pain-in-the-ass part of the First Amendment of the Constitution?)
[From 1972 to 1974], in the best-known episode in the newspaper’s history, reporters Bob Woodward and Carl Bernstein led the American press’ investigation into what became known as the Watergate scandal; reporting in the newspaper greatly contributed to the resignation of President Richard Nixon.
However, The Post (film) covers an earlier time: June, 1971.
That was when first the New York Times, then the Washington Post began running a series of articles based on the Pentagon Papers. (The 47-volume, 7,000-page assessment of the history of the Vietnam War. It was ordered in 1967 by Secretary of Defense Robert S. McNamara, and ultimately concluded that the war was “unwinnable.” The papers were “turned over (without authorization) to The New York Times by Daniel Ellsberg, a senior research associate at the Massachusetts Institute of Technology’s Center for International Studies.”)
The Nixon Administration charged Ellsberg with conspiracy, espionage, and theft of government property – i.e., the Pentagon Papers – for which he faced a possible 115 years in prison. And the substance of The Post (film) is that “Kate” Graham herself faced criminal prosecution, not to mention personal bankruptcy and the loss of the “family paper.” (The Post (newspaper)
An aside: The paper had been “in the family” since 1933. That’s when Katharine’s father – Eugene Meyer – bought the paper in a bankruptcy action. “In 1946, Meyer was succeeded as publisher by his son-in-law, Philip Graham” – Katharine‘s husband – who died in 1963. (Which itself offers some interesting drama…)
The point being that Katharine Graham had a lot to lose…
I could write a lot about The Post as both film art and a commentary on how history tends to repeat. (My original title for this “article” – to avoid a redundant “Post post” – was “Movie review: ‘The Post’ – and history repeating itself…”) And I will do more “posts on ‘The Post'” in the future.
But for today I’ll focus on journalism and its place in American law.
For one thing, I majored in journalism because of “Woodstein” and the film All the President’s Men. For another, after graduation in 1976 I went to work for the St. Petersburg Times – now the Tampa Bay Times – for five years. Then I went to law school intending to become a reporter specializing in the law and legal proceedings.
Which could explain my focus for today’s review.
Near the end of the film, the staff of the Washington Post got a telephone call – on a rotary phone, no less – announcing the Supreme Court’s decision. At stake was not only freedom of the press, but also the personal and financial future of Katharine Graham and Ben Bradlee. (U.S. Attorney General John Mitchell was quoted as saying, “Katie Graham’s gonna get her tit caught in a big fat wringer if that’s published.”)
The announcement? “We won, 6-3!” (Or words to that effect…)
My first reaction? That the scariest part of the movie was that – back in 1971 – three Supreme Court Justices seemed to agree with the Nixon Administration.
And if that was true back then, what would happen today if the Trump Administration took a similar stand, from its own Enemies List? Or worse, if Trump goes on to pack the Court? But – after further review – it turned out that Chief Justice Warren Burger – together with Justices John Harlan and Harry Blackmun – dissented only because of the “haste of the proceedings:”
[Burger] argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather enough information to make a decision… The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily.
Which doesn’t mean the dissenters favored the government. It only meant they thought the decision should not have been made so quickly. (See New York Times v. United States.)
To give some perspective, the Times published its first article on June 13, 1971, while the Washington Post began publishing its own articles on June 18. The Supreme Court heard oral arguments from the various parties on June 25 and 26, and rendered its decision on June 30, 1971.
Which means the whole process – from the first publishing to the government’s law suit to the final decision by the Supreme Court – took less than three weeks. But in normal certiorari proceedings, “cases take approximately 12 to 24 months from the day they are petitioned until the Supreme Court issues a decision.”
On the other hand, the average schmuck trying to fix a decision in a state court must first “exhaust all state remedies” – which can take years – and such cases are rarely granted review.
At any rate, the fact that the three dissenting justices only felt the decision was rendered too quickly made me feel a bit better, and not so panicky.
At least for now… In the meantime, consider this from one Thomas Jefferson:
…were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.
I’ll be writing more reviews of The Post in the future.
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Re: The Pentagon Papers saying the Vietnam war was “unwinnable.” The study also indicated that presidential administrations beginning with Harry Truman and Dwight Eisenhower also routinely lied to the American people as to why the war was necessary in the first place.
The photo to the right of the paragraph “To give some perspective,” is captioned “The Monday, July 21, 1969, edition, with the headline ‘The Eagle Has Landed’ – Two Men Walk on the Moon.”
Re: The “normal” length of time for Supreme Court proceedings. See How long does a US Supreme Court case take – Answers.com: “More commonly, cases take approximately 12 to 24 months from the day they are petitioned until the Supreme Court issues a decision.” Re: “Average schmuck” and “exhausting state remedies.” See SUPREME COURT OF THE UNITED STATES, (courtesy of “law.cornell”), and U.S. Supreme Court: Failure to Exhaust Remedies Is an Affirmative Defense.
And as another aside, Chief Justice Warren Burger also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material.
The lower image is courtesy of Thomas Jefferson – Wikipedia. As to the quote, see also Jefferson’s preference for “newspapers without government, Jefferson on Politics & Government: Freedom of the Press, and/or Jefferson’s Warning to the White House | Time.com.