From Lew Rockwell
"Congress shall make no law" abridging the freedom of speech." -- First Amendment to the U.S. Constitution
In the oral argument of the famous U.S. Supreme Court cases known collectively as the Pentagon Papers Case, the late Justice William O. Douglas asked a government lawyer if the Department of Justice views the "no law" language in the First Amendment to mean literally no law. The setting was an appeal of the Nixon administration's temporarily successful efforts to bar The New York Times and The Washington Post from publishing documents stolen from the Department of Defense by a civilian employee, Daniel Ellsberg.
The documents were a government-written history of the Vietnam War, which revealed that President Lyndon B. Johnson and his secretaries of defense and state and the military's top brass materially misrepresented the status of the war to the American people. Stated differently, they regularly, consistently and systematically lied to the public and the news media.
Though LBJ was retired, Nixon did not want this unvarnished version of the war he was still fighting to make its way into the public arena. The Nixon DOJ persuaded a federal district court judge to enjoin the publication of the documents because they contained classified materials and they had been stolen.
In a landmark decision, the court ruled that all truthful matters material to the public interest that come into the hands of journalists no matter how they get there may lawfully be disseminated. That does not absolve the thief though the case against Ellsberg was dismissed because the FBI committed crimes against him during his prosecution but it does insulate the publisher absolutely against civil and criminal liability.
The Pentagon Papers Case is a profound explication of one of the great values underlying the freedom of speech; namely, the government cannot lawfully punish those who publish truths it hates and fears.
After his administration lost the case and the Times and the Post published the documents, Nixon attempted to distinguish his presidency and administration of the War from LBJ's, but he did not challenge the truthfulness of the publications.
Regrettably, the Trump administration is pretending the Pentagon Papers Case does not exist. It is manifesting that pretense in its criminal pursuit of international gadfly and journalist Julian Assange, the founder of WikiLeaks.
Sometime in 2010, Assange and his colleagues began receiving classified U.S. Department of Defense materials from an Army intelligence officer now known as Chelsea Manning.
Manning committed numerous crimes, for which she pleaded guilty, and was sentenced to 45 years in prison. Her sentence was commuted by President Barack Obama, whose Department of Justice publicly declined to prosecute Assange in deference to the once universal acceptance of the Pentagon Papers Case and the numerous court rulings that have followed it.
The Trump DOJ, however, sought and obtained two indictments of Assange, who is now charged with 17 counts of espionage and faces 175 years in prison. Assange is currently being held in a maximum-security prison outside of London. The U.S. has sought his extradition at a proceeding that began in a London courtroom this week.
When lawyers blatantly reject well-accepted law for some political gain, they violate their oaths to uphold the law. When government lawyers do this, they also violate their oaths to uphold the Constitution. For them, there is no escaping the Pentagon Papers Case. While the case turned on the concept of prior restraint of speech, it clearly reflects the views of the court that it matters not how the publisher obtained the secrets that he published.
WikiLeaks revealed in partnership with major international publications, including the two involved in the Pentagon Papers Case videos of American troops murdering civilians and celebrating the murders (a war crime) as well as documentary proof of American complicity in torture (also a war crime).
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