Why the Biden administration must protect the press — even when it exposes government secrets 

Fifty years ago, on June 13, 1971, the New York Times published the first in a nine-part series of excerpts from what became known as the Pentagon Papers. That publication exposed to public view the pattern of secrecy and deception that led to American involvement in the Vietnam War, the same pattern that kept citizens in the dark as the war dragged on. It was “the greatest journalistic catch of a generation,” and one of the most consequential exercises of press freedom in American history.

In an ironic twist of history, the anniversary of the Pentagon Papers’ publication comes in the wake of last month’s revelation that Donald Trump’s concerted assault on press freedom and effort to criminalize the publication of leaked material included spying on reporters by secretly seizing their phone and email data.

Responding to that revelation, the Biden administration and Attorney General Merrick Garland are now trying to figure out what their posture toward leakers and journalists who publish leaked material will be.

As part of this process, Garland met on Monday with representatives of media organizations, including The New York Times, The Washington Post and CNN, to hear their views. Such a meeting would have been unthinkable during the Trump administration.

It is not enough, however, for Garland to say that the Justice Department will not spy on reporters or for the president to denounce such spying as “simply wrong.”  

They must change the law to help ensure that it never happens again.

Garland started that process by promising to change Justice Department policy and repeal the regulations that permitted Trump’s spying on reporters. These are important steps, but they can be reversed by a subsequent AG. The executive branch can’t be left to police itself.

Preventing the abuses perpetrated by the Trump Justice Department requires that Biden and Garland seek congressional legislation protecting reporters and permanently banning covert surveillance of journalists for the work they do.

Battles between journalists and the government over the publication of leaked material were nothing new in 1971 when the Times published the fruits of Daniel Ellsberg’s leak. They have continued unabated since then.

Every administration in Washington bemoans leaks. Each decides for itself how to respond when journalists expose government secrets. Each has to fight the tendency to blame leakers and journalists when information it wants to hide sees the light of day.

It will be no different as the Biden administration unfolds. The president will have to work hard not to allow hostility to the press to become part of his administration’s DNA and to make sure it supports freedom of the press even when the press makes trouble for it.

As they consider what to do about leaks and the journalists who publish them, the administration would be well advised to revisit the opinion written by Supreme Court Justice Hugo Black rejecting the Nixon administration’s effort to stop further publication of The Pentagon Papers after the first excerpt appeared in the Times.

Black offered an eloquent defense of the press and a powerful argument that democracy can thrive only if it can keep citizens informed about what the government most wants to hide from them. He warned of the tendency of government officials to see danger everywhere, to fear the political ramifications of transparency, and to misuse classification and secrecy.

Black argued that the “Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.” The job of the press was, as Black saw it, “to bare the secrets of government and inform the people.”

He concluded that even when military and diplomatic secrets are involved, guarding them “at the expense of an informed representative government, provides no real security for our Republic.”

In the 50 years since Black wrote, the press that he venerated has gotten weaker, not stronger. Even as outlets for disseminating information have proliferated, the institutional media have lost both financial strength and public confidence.

At the time The New Times published the Pentagon Papers, three quarters of Americans said that they trusted the news media. Today, that same number of people say that media bias is a major problem and only 40 percent of the population now has confidence in the media.

While readership of some newspapers grew during the Trump years, all over the country newspapers have been going out of business. Today, even the largest and best known publications are devoting fewer resources to do the costly and expensive work of high quality investigative journalism. And there are fewer people in their newsrooms.

And, in recent years, the courts have not shown themselves to be bulwarks of press freedom. The Supreme Court itself has not decided a major press freedom case in more than a decade and is much less likely to support press freedom than it was when Black wrote his opinion in the Pentagon Papers case.

Ultimately, of course, the Biden administration cannot undo those troubling facts or ensure the health of the press. But it can and should adapt its policies to the new realities that have so weakened the American press and make supporting the press part of its agenda to protect democracy.

Last month, marking World Press Freedom Day, President Biden celebrated “the courage of truth-tellers who refuse to be intimidated, often at great personal risk, and we reaffirm the timeless and essential role journalism and a free media play in societies everywhere.” It is now time to turn those noble words into action.

The president should call on Congress to enact new legal protections so that reporters can, as Justice Black said, expose the government’s secrets without ever again having to worry that the government is spying on them.

Austin Sarat is associate provost and associate dean of faculty and the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books including on topics of secrecy and press freedom: “The Secrets of Law” and “Law and Lies.”