Movies

Remember The Pentagon Papers Case? Because Steven Spielberg Doesn't.

'The Post' may be cruising to an Oscar, but there's an awfully big problem with its Supreme Court history.

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When I first saw a commercial for “The Post,” Steven Spielberg’s new film about the heroic efforts of Washington Post publisher Katharine Graham and editor Ben Bradlee to expose corruption and bring the Pentagon Papers to the American people, I had a warm, nostalgic flashback to all those Con Law lectures about the Post’s landmark Supreme Court fight to protect a free and open press from an abusive administration hellbent on exercising prior restraint to cover up its misdeeds. But something just seemed a little off about it that I couldn’t quite put my finger on.

Wait, wasn’t that case New York Times v. United States?

Yes. Amazingly, Spielberg’s latest prestige film is a movie about the wrong newspaper. Somehow from script to screen, no one pointed any of this out. This isn’t even ancient history… Daniel Ellsberg is still alive for f**k’s sake.

And so is James Goodale, the former general counsel of the New York Times who directed the Pentagon Papers litigation. He, understandably, has some problems with this movie:

While The Washington Post gets the lion’s share of the glory in the movie, it was the Times that did the vast majority of the hard work and took on far more risk in publishing the Pentagon Papers. The Times spent months painstakingly reading and verifying the documents with reporters working around the clock in a secret outpost at the Hilton Hotel. It aimed to determine whether pieces and parts of the study might have been previously published in order to ensure the documents were authentic and did not damage national security. It also spent months preparing its legal defense.

Times publisher Arthur O. Sulzberger was worried he and other Times executives might be arrested for publishing them—despite their clear newsworthiness. In fact, the Times’ outside counsel, the prestigious law firm Lord, Day & Lord, quit the night before the Times’ first appearance in court, claiming that the Times was breaking the law.

This movie is a lot like remaking All the President’s Men as a New York Times hagiography.

The Post was not entirely without a role in the Pentagon Papers story, but as Goodale describes, the Post’s contributions could hardly be labeled epic:

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After the Times was temporarily enjoined, Ellsberg gave part of the Papers to the Post, which began to publish them largely by relying on the authentication of the documents with the benefit of knowing the Times had legal advice that it was okay to publish.

The movie centers on the arguments about whether to publish that broke out between the lawyers, the reporters and the “suits” representing the business side. While these arguments were heated, they were in large part much ado about nothing. There was, with one exception, no risk for the Post that the Times had not already assumed. And the Post knew that. The Post effectively rode on the coattails of the Times.

Is it really that difficult to believe there’s more than one newspaper in America? Did Bezos fund this movie? So many questions!

Spielberg’s ‘The Post’: Good Movie, Bad History [Daily Beast]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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