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4.2.12
WC: 191694

Several years after the argument, Griswold expressed a rather different view:

“I have never seen any trace of a threat to national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. [He, of course, had suggested just that in his oral argument]…It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.”42

The First Amendment emerged victorious in the Pentagon Papers case, as it did in most of the anti-war cases of the 1970s. But this was before the age of the internet. Everything would soon be different as technology changed the sounds and sights of expression—as well as the stakes involved in the debate over disseminating massive amounts of classified material throughout the world in the blink of an eye.

Julian Assange and Wikileaks

Important as it was as a First Amendment precedent, the Pentagon Papers case was First Amendment “child play” compared with the Wikileaks case and other current threats to national security posed by modern computer technology. The Pentagon Papers, after all, were to be published by “mainstream,” “responsible”43 and “patriotic” media, such as The New York Times, The Washington Post and the Beacon Press, which would be “sensible” in what they exposed to public view. They would never publish the names of spies, informers or other people whose lives might be endangered by disclosure. (After all, they don’t even publish the names of alleged rape victims, though there are good arguments for doing so, at least in some cases.)44

Moreover, these “established” media have permanent “addresses.” They can be found and held legally accountable if they violate the law. Moreover, they are “businesses” that need public support, and are therefore unlikely to take any actions that would alienate their paying readership and advertisers. These constraints provide some assurance that such established members of “the Fourth Estate” will not pose the worst kind of dangers to our national security. They serve as an informal “check and balance” on the excesses of journalistic freedom.45

None of these assurances or checks are in place when it comes to the “hackers,” “cyber-thieves,” “anarchist” and other “outsiders”—many of whom are “anonymous”—who currently threaten to expose our deepest, most dangerous and most valuable “secrets.”

42 Washington Post, February 15, 1989. Page A.25
43 See Gabriel Shoenfeld, Necessary Secrets (______ 2010)
44 See Dershowitz [column]
45 The checks don’t always work, as evidenced by the Murdock scandals.

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