Steven V. Roberts: Two endangered precedents

Published 12:00 am Friday, February 4, 2022

For 15 days in June of 1971, a federal court barred The New York Times from publishing the Pentagon Papers, a damning account of how the United States had blundered into the Vietnam War. That egregious edict was overturned by six Supreme Court justices, and today their ruling sets the legal standard regarding press freedom.

As Justice Hugo Black wrote, the lower court’s injunction amounted “to a flagrant, indefensible, and continuing violation of the First Amendment.” He added that “only a free and unrestrained press can effectively expose deception in government.”

Black’s words remain true more than 50 years later, but his admonition is under assault in two current cases, both involving the Times. And given today’s political climate, those threats have to be taken very seriously.

After years of unrelenting attacks on the media by Donald Trump and his right-wing allies — branding journalists as “the scum of the earth” and the “enemies of the people” — it’s not surprising that public confidence in the press has plummeted. A Gallup survey found that only 21% had “a great deal” or “quite a lot” of confidence in newspapers, while only 16% had the same view of television news.

Moreover, federal judges appointed by Republican presidents have expressed growing skepticism toward the media’s mission. As a result, political strategist Elizabeth Spiers told the Washington Post, “You can’t take it for granted these days that members of a jury, or even judges, believe that we need a robust free press.”

The first case involves a long-running feud between the Times and Project Veritas, a right-wing organization devoted to discrediting its perceived enemies on the left.

Veritas is suing the Times for libel, and the paper obtained communications between the organization and its lawyers that bore on the dispute. A New York state judge, Charles Wood, ruled that the Times could not publish the communications because they were protected by lawyer-client privilege. In fact, he ordered the Times to destroy the documents they had collected.

A higher court quickly overruled Wood, and said the Times could retain the documents, but the judges kept the restraining order in place. So today, for one of the few times in American history, a news organization is legally barred from publishing certain information.

Times publisher A.G. Sulzberger denounced Wood for ruling with “no apparent precedent.” But even if his decision is eventually reversed, the chilling effect is real. As Sulzberger put it, “This ruling should raise alarms not just for advocates of press freedoms, but for anyone concerned about the dangers of government overreach into what the public can and cannot know.”

The second case involves Sarah Palin, the former governor of Alaska and vice-presidential candidate. In 2010, her political action committee had targeted a list of Democratic House members for defeat, including Gabrielle Giffords of Arizona. In 2011, Giffords was shot and almost killed by a gunman, and in 2017, the Times published an editorial implying that Palin was responsible for the attack — saying “the link to political incitement was clear.”

Wrong. A link between Palin and the shooter has never been demonstrated. Palin sued for libel, and her complaint alleges that James Bennet, the Times editorial page editor who wrote the piece, “had a preconceived storyline for the defamatory article” and as a result, avoided “information that contradicted it.”

I teach media ethics, and I agree with Palin’s complaint. Bennet was apparently infected by a case of confirmation bias — a particularly dangerous ethical pitfall that causes writers to want a story to be true. But did the editorial qualify under the law as defamatory? Just because a story is unethical doesn’t make it illegal.

In the 1964 case, New York Times Company vs. Sullivan, the High Court unanimously set out a very high standard. To win a libel judgment, a public figure has to prove that a publication knew the story was false and printed it anyway.

Most legal experts believe that the Times’ behavior in the Palin case does not meet the Sullivan standard. For one thing, the paper corrected the mistake immediately. For another, it’s very hard to demonstrate that Bennet deliberately published an untruth. In fact, in an email early the next morning, he confessed to a colleague, “I don’t know what the truth is here,” and added, “I just moved too fast.”

Still, these two cases cast a dark shadow over the bright precedents that have protected press freedoms for more than half a century. Hugo Black’s fervent support for “a free and unrestrained press” is now in danger.

Steven Roberts teaches politics and journalism at George Washington University.  Email him at