Election 2016

A Truly Free Press Will Always Be an Inconvenience To The Government

Publishing Donald Trump's tax returns and Hillary Clinton's emails is in the public interest.

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Not in the public interest
Ron Sachs/CNP/AdMedia/SIPA/Newscom

It seems that at every turn during this crazy presidential election campaign — with its deeply flawed principal candidates (whom do you hate less?) — someone's personal or professional computer records are being hacked. First it was Hillary Clinton's emails that she had failed to surrender to the State Department. Then it was a portion of Donald Trump's 1995 tax returns, showing a $916 million loss he claimed during boom times. Then it was those Clinton emails again, this time showing her unacted-upon doubts about two of our Middle Eastern allies' involvement in 9/11 and her revelation of some secrets about the killing of Osama bin Laden.

The reason we know about these leaks is the common thread among them — the willingness of the media to publish what was apparently stolen. Hence the question: Can the government hold the press liable — criminally or civilly — for the publication of known stolen materials that the public wants to know about? In a word: No.

Here is the back story.

When Daniel Ellsberg, an outside contractor working in the Pentagon, stole a secret study of U.S. military involvement in Vietnam in 1971, which revealed that President Lyndon Johnson had lied repeatedly to the public about what his military advisers had told him, the Department of Justice secured an injunction from U.S. District Judge Murray Gurfein, sitting in Manhattan, barring The New York Times from publishing what Ellsberg had turned over to Times reporters. Such an injunction, known as a "prior restraint," is exceedingly rare in American legal history.

This is so largely because of the sweeping language of the First Amendment — "Congress shall make no law…abridging the freedom of speech, or of the press" — as well as the values that underlie this language. Those values are the government's legal obligation to be accountable to the public and the benefits to freedom of open, wide, robust debate about the government — debate that is informed by truthful knowledge of what the government has been doing.

Those underlying values spring from the Framers' recognition of the natural right to speak freely. The freedom of speech and of the press had been assaulted by the king during the Colonial era, and the Framers wrote a clear, direct prohibition of such assaults in the initial amendment of the new Constitution.

Notwithstanding the First Amendment, Judge Gurfein accepted the government's argument and found that palpable, grave, and immediate danger would come to national security if the Times were permitted to publish what Ellsberg had delivered.

The Times appealed Judge Gurfein's injunction, and that appeal made its way to the Supreme Court. In a case that has come to be known as the Pentagon Papers case, the high court ruled that when the media obtains truthful documents that are of material interest to the public, the media is free to publish those documents, as well as commentary about them, without fear of criminal or civil liability.

The government had argued to the Supreme Court — seriously — that "'no law' does not mean 'no law'" when national security is at stake. Fortunately for human freedom and for the concept that the Constitution is the supreme law of the land and means what it says, the court rejected that argument. It also rejected the government's suggested methodology.

The government argued that because Congress and the president had agreed to void a constitutional mandate — the First Amendment's "no law" language — in deference to national security, the judiciary should follow. That methodology would have rejected 180 years of constitutional jurisprudence that taught that the whole purpose of an independent judiciary is to say what the Constitution and the laws mean, notwithstanding what Congress and the president want. Were that not so, the courts would be rubber stamps.

Moreover, the high court ruled, it matters not how the documents came into the possession of the media. The thief can always be prosecuted, as Ellsberg was, but not the media to which the thief delivers what he has stolen. In Ellsberg's case, the charges against him were eventually dismissed because of FBI misconduct in pursuit of him — misconduct that infamously involved breaking in to his psychiatrist's office looking for dirt on him.

Since that case, the federal courts have uniformly followed the Pentagon Papers rule. Hence, much to the chagrin of the Obama administration, the media was free to publish Edward Snowden's revelations about the ubiquitous and unconstitutional nature of government spying on Americans by the National Security Agency. The same is true for Trump's tax returns and Clinton's emails.

Are these matters material to the public interest?

Of course they are. In a free society — one in which we do not need a government permission slip to exercise our natural rights — all people enjoy a right to know if the government is spying on us in violation of the constitutionally protected and natural right to privacy. We also have a right to know about the financial shenanigans or uprightness and the honesty or dishonesty of those who seek the highest office in the land. That is particularly so in the 2016 campaign, in which Trump has argued that his business acumen makes him uniquely qualified to be president and Clinton has offered that her experiences as secretary of state would bring a unique asset to the Oval Office.

Efforts to silence the press or to punish it when it publishes inconvenient truths about the government or those who seek to lead it are not new, and the vigilance of the courts has been unabated. Thomas Jefferson — himself the victim of painful press publications — argued that in a free society, he'd prefer newspapers without a government to a government without newspapers. Would Clinton or Trump say that today?

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. Can the govt hold the press liable? No. Can that same govt withhold access to personnel, suddenly stop leaking, ban photo ops, or revoke invites to the WHCD? Absolutely. And the WH press core fears that a hell of a lot more.

    1. The WH press corps has been pathetic for quite some time.

      1. My co-worker’s step-sister makes $97 hourly on the laptop . She has been out of work for six months but last month her paycheck was $14100 just working on the laptop for a few hours. Go this website and click to tech tab to start your work… http://tinyurl.com/hhwe4zl

    2. If you think the government can suddenly stop leaking, you must believe in unicorns and Santa Claus too. Seriously, I get your point, but stopping leakers is nigh on impossible. You can have some effect, no doubt. But stopping it? Not gonna happen. Some people get pissed enough to risk jail. In every administration.

  2. The government argued that because Congress and the president had agreed to void a constitutional mandate ? the First Amendment’s “no law” language ? in deference to national security, the judiciary should follow.

    The government should try to revisit this, as today’s court is exceptionally more conciliatory.

    1. “If it is a constitutional right, then it ? like every other constitutional right ? is subject to reasonable regulations.”
      – Hillary Clinton

      1. What part of “congress shall make no law” does that bitch not understand.

        1. Clearly that is only a limit on congress, not unaccountable regulatory agencies controlled by the presidency.

          1. Of course only congress is empowered by the constitution to actually make laws, but that fucking train left the station a long time ago.

          2. Oh, my bad. No problem then…

        2. What part of “congress shall make no law” does that bitch not understand? Every damn word.

        3. All of it. A government that has any limitations is beynd her comprehension.

      2. One Hillbot whom I know agrees with her. The rest refuse to talk about it.

  3. “The reason we know about these leaks is the common thread among them ? the willingness of the media to publish what was apparently stolen. ”

    I am just reaching here, but I am going to posit that HC’s emails that are public record under the law cannot be ‘stolen’.

    1. Hell, the reason she set up her private server was so that she could hide her dealings while SOS from the public record.

  4. Publishing Donald Trump’s tax returns and Hillary Clinton’s emails is in the public interest.

    I understand the latter, can somebody explain the former? The article repeatedly links the two things as if they were comparable without ever delving into why. If Trump’s returns showed that he was violating the tax code, committing a crime as it were, then I could see the comparison.

    1. Exactly. Had he violated the tax code, he would have been prosecuted, And in this case, his return showing a loss of a billion dollars would have been audited.

      1. Well the reality is that if he becomes President, he will then be in charge of auditing/prosecuting himself re his own taxes – which is more than a little bit of a conflict of interest. It is entirely reasonable that voters have enough information to know what such possible conflicts of interest are before they put him in office. It is unfortunately just as unreasonable to expect the actual press to provide that beyond being just a tool for emotional manipulation – but – https://youtu.be/gqdNe8u-Jsg

    2. It doesn’t make any sense with a purely income-based tax. But to the degree that Trump relies on the govt to protect his continuing ownership of property via the rule of law – and relies on the govt to provide the infrastructure that keeps the property valuable to others; then it is completely reasonable and in the public interest to determine whether the govt is actually being paid to provide that service or whether Trump is freeloading. The same applies to Buffet and Koch and Gates etc.

      The reality is that NONE of them have the slightest interest in going anarcho to protect that property on their own because they know that can’t possibly work as well. Adam Smith is still the best philosophical explanation (BookV) for why a LIMITED govt needs to gather its revenues from the beneficiaries of the functions it provides. And that means a light marginal tax rate on all four of wealth, income, consumption, and direct usage. Today, only Switzerland seems to understand that. We seem to think that an outrageous marginal tax on wealth – applied only at death and thus avoided by everyone with serious wealth – is the same thing.

  5. Wait, is this article praising our current media? Like they aren’t just media wings of the state department at this point? All corporate media in this country are clearly hacks…

    How were HRC emails a good job by the media? They were release as part of investigation in one incidence and by wikileaks in another.. And most media is calling for the head of assange..

    Maybe this article is just writing about the press idea but it seems to fall flat given our current environment..

    1. The media responded to the revelations in the Wikileaks email release by publishing an unconfirmable hit piece on Trump based on unprovable allegations about something that may or may not have actually happened 30 years ago.

  6. I get the emails part – Herself hid from FOIA, so we will show you what she was hiding (that which was/should have been) public.That was a “public servant” evading record keeping and disclosure laws, all on our nickle.

    … Someone’s tax returns? That is information forcibly compelled from people by the state. Supposedly to be kept private. What is “the public interest” in someone’s tax returns? Can we see the returns of Andrew P. Napolitano?

  7. In a free society ? one in which we do not need a government permission slip to exercise our natural rights

    Where would we find such a society? I’d move there.

  8. Is “free press” what they call these waterboys now?

    Call me back when Robby is broadcasting from Aden, Yemen.

  9. Of course the free press is important, that’s why the Progressives captured most of it….

  10. OT: is Trump preparing for a free kick in that picture?

  11. Very good written article. It will be supportive to anyone who utilizes it. including me. Keep doing what you are doing ? can’r wait to read more posts.
    Kisah Inspiratif
    Inspirasi

  12. Given that large swathes of the media are active proponents of, and engaged in a merry go round of self interest with, if not directly in bed with more government is it safe to conclude that what we have is not a free press?

    1. Eisenhower’s farewell address apparently taken as a how-to guide rather than a dire warning.

  13. An excellent article. One of Napolitano’s best.

  14. Judge Napolitano is not a bad writer when he doesn’t start every sentence with “what if…”.

  15. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    …….. http://www.jobprofit9.com

  16. Peyton . even though Billy `s report is cool… on monday I got a gorgeous Maserati after I been earnin $8985 thiss month and even more than ten k lass month . it’s certainly the easiest work Ive ever had . I started this 9-months ago and practically straight away started bringin home at least $78 per-hr . look at this now

    ……………. http://www.jobhub44.com

  17. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    ……………… http://www.jobprofit9.com

  18. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    …….. http://www.jobprofit9.com

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