May 8, 1973
Page 14750
POLITICIANS AND THE PRESS – REMARKS BY CLIFTON DANIEL
Mr. MUSKIE. Mr. President, several weeks ago, one of our Nation's most distinguished news executives, Mr. Clifton Daniel of the New York Times, addressed a group of Washington editors and press spokesmen on "Politicians and the Press."
Mr. Daniel's remarks were structured around the Times' decision to publish the Pentagon papers.
Never in his 40-year career in journalism, Mr. Daniel tells us, has he felt the press "so persistently questioned and challenged as it has been lately." Never has he felt the challenge "to be so ominous."
Part of this challenge, Mr. Daniel points out, comes from a government which characterizes members of the press as "sensationalists who dispense elitist gossip," and one which over-classifies Government documents with little concern for the public's right to know.
In his address to the Public Relations Society of America, Mr. Daniel explains how the Times views its responsibilities under our constitutional system to "publish information of interest and importance to the people, in the performance of their rights and duties as citizens, voters, and taxpayers." I ask unanimous consent that Mr. Daniel's address be printed in the RECORD.
There being no objection, the address was ordered to be printed in the RECORD, as follows:
THE PRESS AND THE POLITICIANS
(By Clifton Daniel)
Most Americans don't believe in freedom of speech, freedom of the press, and freedom of assembly.
To be more precise, they don't believe that those rights, as defined in the First Amendment to the constitution, are absolute. Most Americans would be willing to see them restricted.
They claim the right of free speech for themselves, but not necessarily for other people.
What's my evidence?
Last year I received from Louis Harris and Associates – the Harris Poll – some unpublished data from a series of questions put to 1,609 persons – a national cross-section – in 1970.
They were asked, "Do you agree or disagree that every citizen in the United States should have the right to express any opinion he wants to" – freedom of speech. Ninety-one per cent agreed.
"Do you agree that every citizen should have the right to print any point of view he wants to" – freedom of the press. Seventy-three per cent agreed.
"Do you agree that every citizen should have the right to hold a meeting on any subject he pleases" – freedom of assembly. Sixty-six per cent agreed.
But in the same year, 1970, when the same questions were asked in a different context, when they were applied to the conduct of other people, the answers were conspicuously different. The C.B.S. News Poll, which interviewed 1,136 adults, found that 76 per cent of them believed that "extremist groups should not be permitted to organize demonstrations against the government, even if there appeared to be no clear danger of violence."
Fifty-four per cent "would not give everyone the right to criticize the government, if the criticism were thought to be damaging to the national interest."
Fifty-five per cent felt, that, even in peacetime, "newspapers, radio and television should not be permitted to report some stories considered by the government to be harmful to our national interests."
In brief, a majority would restrict the rights to demonstrate, criticize and report, even though these rights are clearly and unequivocally guaranteed in the First Amendment.
Let me recall the words of the amendment–
"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."
I call attention especially to these words, "Congress shall make no law ... abridging the freedom of the press", because that's what I'm here to talk about – freedom of the press.
Never in all my career in journalism, which is now in its 40th year, have I known freedom of the press to be so persistently questioned and challenged as it has been lately.
Never have I felt the challenge to be so ominous.
It seems especially menacing because, in part, it emanates directly from the White House.
It began, this official challenge, with Vice President's Agnew's famous speech of November 13, 1969, in Des Moines.
That was the speech in which Mr. Agnew charged that broadcasting was in the hands of a "small and unelected elite" whose views "do not ... represent the views of America."
Such attacks on the news media subsided during the 1972 Presidential campaign.
Supporters of the President observed that Senator McGovern was, if anything, getting a worse press than Mr. Nixon.
Actually, only 17 per cent of television viewers thought T. V., reporting of the 1972 election was biased against the administration. That was the finding of a poll taken for T. V. Guide.
After the election, however, the challenge to the press was renewed, this time by Clay T. Whitehead, director of the White House Office of Telecommunications Policy. He said station managers and network officials "should correct the so-called professionals who confuse sensationalism with sense and who dispense elitist gossip in the guise of news analysis."
But when I speak of the challenge to freedom of the press in America, I am not thinking only of the government, only of Clay Whitehead and Vice President Agnew. I am also thinking of that 55 per cent of the people polled by C.B.S. who favor government censorship of the press.
They don't use the word "censorship." They may not even be aware that they are advocating it.
They simply ask questions such as this one about the publication of the Pentagon Papers, the secret history of our involvement in the Vietnam War: "Who gives you the right," they ask, "to decide which government documents should be made public? Who elected The New York Times?"
That is a hard question. It deserves an honest answer. I shall try to answer it here and now.
The New York Times was elected, so to speak – the press in general was elected – by the Congress that recommended and the states that ratified the first ten amendments to the Constitution in 1971.
The press was not elected to classify and declassify public documents. It was elected to seek out and publish information of interest and importance to the people, in the performance of their rights and duties as citizens, voters and taxpayers – especially information that the authorities might improperly withhold from the people.
The press was elected to scrutinize, publicize and criticize the acts of public officials.
Freedom to publish was guaranteed without restriction.
Freedom of the press, as defined by the First Amendment, means freedom of the press. It does not mean freedom if, or freedom but. It means freedom period.
It is because I interpret the First Amendment in that absolutist sense that I tend to be dubious about so-called shield laws – laws to protect newsmen in their refusal to disclose confidential sources and confidential information.
Defining freedom of the press, as these laws would do, could result in limiting freedom of the press – that is, abridging freedom of the press, which the Constitution forbids. That is my personal view. Most of my colleagues, through their professional associations, seems to be in favor of shield laws, state and Federal. Freedom of the press, in their view, and in mine, means freedom to gather news as well as publish it. That aspect of freedom was seriously eroded by the Supreme Court decision last June in the case of Earl Caldwell of The New York Times.
The court held that newsmen have no Constitutional right to withhold confidential information from grand juries, although lawyers, doctors and priests do have such a right.
Four newsmen have already gone to jail to protect their sources. Many more are prepared to go.
While news-gatherers and news sources must be protected from official harassment and intimidation – whether by statute or the Constitution, they must act within the law.
The First Amendment is not a license to rob or steal.
The New York Times did not steal the Pentagon Papers. I do not know, in fact, exactly how The Times obtained those documents.
They came into the possession of Neil Sheehan, a reporter with long experience in the problems of Vietnam. Daniel Ellsberg says he gave the Pentagon Papers to the press.
Whether Dr. Ellsberg misappropriated the papers and violated the law in making them public – those are issues to be decided in the case now proceeding against him in Federal Court in California. I cannot anticipate the verdict.
In actual fact, government secrets can be had for the asking – or even without asking.
When the Department of Justice tried to prevent the publication of the Pentagon Papers, The New York Times was prepared to go into court and demonstrate that public officials routinely give out classified informatiom for their own purposes, and that secret documents are habitually used in the writing of books by former Presidents and lesser officials.
It is not generally known, I believe, that there is no law providing for the classification of government documents, and there is no law against disclosing government secrets – except in espionage cases.
Documents are classified by Executive Order – that is, on the authority of the President, and the system of classification is notoriously capricious. Parts of the Pentagon study, for example, were based on articles from The New York Times. Indeed, several of the volumes contained page after page of footnotes citing The Times, all classified "Secret."
Equally capricious is the system of declassifying documents – as the government has acknowledged. After the Pentagon Papers case a review of the procedures was ordered. and they were supposedly liberalized by a Presidential order last June 1st.
When he issued Executive Order 11652, President Nixon said it was designed – and I am quoting – "to lift the veil of secrecy which now enshrouds altogether too many papers written by employees of the Federal establishment."
"The full force of my office," the President said. "has been committed to this endeavor."
The full force of the President's office has not been conspicuously effective. Since June 1972, The New York Times has formally requested declassification of 51 sets of documents, all at least 10 years old, and many going back 25 years or more.
In four cases, The Times succeeded without appeal, although one declassification took ten months. Another case succeeded only after an appeal and a re-appeal. Two more cases are pending.
"That gives us a batting average so far of 5 for 49, or .102 – not good enough even for the minor leagues," as Harding Bancroft, executive vice president of The New York Times, told a group of three Senate subcommittees last week.
The Pentagon Papers manifestly would never have been made available under such a procedure.
The issue that confronted The New York Times in the Pentagon Papers case was not how the documents were obtained, but whether to publish them once their existence was known.
The issue really was whether the press was justified in suppressing the Pentagon Papers, knowing that they contained information that the public was reasonably entitled to have – the story of how successive administrations were led deeper and deeper into the Vietnam war, while Congress and the people were deliberately deceived.
The decision of The New York Times to publish was not taken lightly. It was agonizingly and endlessly debated among the paper's highest executives and editors. The verdict was not instantaneous, obvious or automatic. The newspaper's own counsel, Lord, Day and Lord, advised against publication, and, when the Federal government filed suit to halt publication, three days after it had begun, Lord, Day and Lord declined to defend The Times.
There were several factors in favor of publication:
The Pentagon Papers dealt with a public issue of the greatest importance – the conduct of the war in Vietnam.
They contained information that the public was entitled to have, but which, in many instances, had been deliberately withheld or misrepresented.
The Pentagon Papers were history. They did not touch on current operations. They did not disclose future military plans or policies.
In its suit to stop publication of the Pentagon Papers, the government contended that "grave and irreparable" injury would be done to the national interest.
If irreparable harm did result, there has so far been no evidence of it.
None of our operations in Vietnam, Laos and Cambodia was compromised. Nobody – not even the suspicious Chinese, Russians and North Vietnamese – has refused to deal with us because we allegedly cannot assure the secrecy of diplomatic negotiations and communications.
Nevertheless, for 15 days in the last two weeks of June, 1971, The New York Times and The Washington Post were enjoined by the Federal courts from publishing anything further about the Pentagon Papers.
It was the first time in American history that the Federal government, in peacetime, had exercised prior restraint on the publication of news – in other words, had imposed censorship on the press.
It took 15 days for the case to work its way through the courts to ultimate resolution by the Supreme Court itself.
On June 30, 1971, the Supreme Court announced its decision – a 6-to-3 vote in favor of freedom of the press, as defined by the First Amendment.
As Justice Brennan remarked, "the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result."
Why should that be so? Why did the authors of the First Amendment grant such an absolute right of publication?
Because, as Justice Black said in his opinion in the Pentagon Papers case, "only a free and unrestrained press can effectively expose deception in government."
It is common knowledge, Justice Douglas said, that the First Amendment was adopted to stop the practice of punishing people for publishing things that were "embarrassing to the powers-that -be."
"The present case (against The New York Times and Washington Post) will, I think, go down in history as the most dramatic illustration of that principle," Justice Douglas added.
I myself would say that the decision in the Pentagon Papers case was the greatest victory for freedom of the press in America since John Peter Zenger was acquitted in 1735 of libeling the British royal Governor of New York.
A victory – and yet ...
While a majority of six members of the Supreme Court voted against preventing the publication of the Pentagon Papers by injunction, three of those six indicated that they might vote differently if the issue were presented to them in another form and under other circumstances.
Indeed, the initial verdict might have been different if there had been four conservative Nixon appointees on the court instead of just two.
Then there is that majority of 55 per cent in the C.B.S. News Poll who felt that, even in peacetime, "newspapers, radio and television should not be permitted to report some stories considered by the government to be harmful to our national interests."
How can they – how can you – be convinced that freedom of the press – absolute freedom of the press – is worth preserving, that it belongs not merely to newspaper publishers, but to all the people, and that those four newsmen who were imprisoned in 1972 went to jail to defend your liberties as well as their own?
Let me seek some simple and homely words.
Freedom of speech, freedom of the press and freedom of assembly are parts of the same whole.
The loss of one diminishes the others. The loss of them all is the loss of liberty itself.
Show me a country where a citizen is not free to speak out against the government – whether in a newspaper, on the airways, or in a public square – and I will show you a nation in chains.
Why do you suppose that the first two people arrested in the effort to suppress the Hungarian uprising in 1956 were journalists? And why do you suppose that the first demand of the students who were in the vanguard of the uprising was for freedom of the press?
Why do you suppose that the first action of Alexander Dubcek, who tried to establish a more liberal regime in Czechoslovakia in 1968, was to grant more freedom of speech and assembly?
And why do you suppose that the first demand of the other Communist countries, which invaded Czechoslovakia and deposed Dubcek, was that the press and radio be controlled and public dissent forbidden?
Why do you suppose that, when President Marcos imposed a military regime on the Philippines last September, he closed down all but one newspaper and all but one radio station, and had 16 newspapermen arrested?
Why do you suppose that the heavy hand of tyranny always falls first on the ears of communication?
Those who would deliver the press into the hands of the government – those 55 per cent – they may not realize it, but they are handing over their own freedom with freedom of the press.
I agree with the man who said last June, "Fundamental to our way of life is the belief that when information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and – eventually – incapable of determining their own destinies."'
That man was Richard M. Nixon.