opinion

Swing and a Miss

Spielberg’s ‘The Post’: Good Movie, Bad History

It has Spielberg, Streep, Hanks, and a rollicking great story, but the lawyer at the heart of the Pentagon Papers release says it just doesn’t have the facts on its side.

opinion

Niko Tavernise

The Post, which opens tonight, is a good movie but bad history. It exaggerates the role of The Washington Post in the success of the publication of the Pentagon Papers and the subsequent Supreme Court case. It downplays the role of the true catalyst in the real life drama: The New York Times. Kay Graham and Ben Bradlee, who were good friends of mine, must be rolling over in their graves laughing at the roles Hollywood has given them.

The movie is about Katherine Graham’s decision to publish the Pentagon Papers. It creates a false impression that the Post was a major player in such publication. It’s as though Hollywood had made a movie about the Times’ triumphant role in Watergate.

In fact the Post had as much to do with the Pentagon Papers as the Times did with Watergate. But then again, we don’t look to Hollywood for history but entertainment, and The Post is good entertainment at the Academy Award level. It’s hard to get much more Oscar-baity than Steven Spielberg (director), Meryl Streep (Graham), and Tom Hanks (Bradlee).

The Pentagon Papers were originally leaked to New York Times reporter Neil Sheehan by Daniel Ellsberg, who copied the 7,000-page study while an employee at the Rand Corporation, where his copy was stored. It was the classified history of the Vietnam War from 1945 to 1968 prepared at the Defense Department at the suggestion of Secretary of Defense Robert McNamara.

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.

Thanks to the courageous stand the Times’ editors and reporters took, and with the advice of the internal legal team I led, on June 13, 1971, the Times made history by publishing the first excerpts of the Pentagon Papers on its front page.

Three days later, Richard Nixon’s Justice Department stopped publication with an injunction claiming publication violated national security. It was the first time the federal government had censored a newspaper in federal court in the country’s history.

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.

The risk assumed by the Times was not insubstantial. If the documents turned out to be fake, the Times would have great difficulty recovering institutionally. If the Times’ legal advice was wrong and the paper was convicted of a crime, its loss of reputation would be irretrievable.

The principal risk the Post had that the Times did not was that the Post was in the middle of a public offering, which could be withdrawn because of the publication of the Pentagon Papers. This is the major premise of the movie because Mrs. Graham, as publisher, had to assume this risk. And it suggests it transformed her from a wobbly-kneed ingénue publisher to one who could withstand Watergate. This angle is a perfectly legitimate one on which to hang a drama.

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It gets scant attention, however, in her autobiography Personal History. The whole Pentagon Papers incident only takes up 15 pages of her 600-page plus book, and her decision to publish much less.

Further, the movie misleadingly indicates the offering was totally for the benefit of the Post, without which the paper would be unable to hire new reporters and make other investments to insure its future. In fact a majority of the offering was to fund estate taxes for Post stockholders including Mrs. Graham.

After publishing for two days, the Post too was stopped in its tracks by Nixon. It then had to make its legal defense without lawyers who had any First Amendment expertise.

The Post’s lead lawyer in fact never once mentioned the First Amendment in his argument before the courts including the Supreme Court. Its Supreme Court brief essentially had to ignore factual assertions by the government that publication damaged national security because it did not have the research the Times had collected during a three-month period before publication.

The briefs submitted to the courts by the Times, authored by Alex Bickel, a constitutional scholar, were voluminous, scholarly and knowledgeable about the First Amendment. The Supreme Court, in deciding 6-3 for the Times, relied exclusively on the Times brief.

Bickel’s articulation of the Times’ First Amendment defense was quoted almost verbatim by the Supreme Court and became the law of the case, i.e., what the case stands for. It would become one the of the most important First Amendment victories of the 20th century, under its name: New York Times v. United States.  

The Times eventually won the Pulitzer Prize. It did not share this prize with the Post any more than the Post shared its prize for its Watergate coverage with the Times. For Hollywood now to create the impression that The Washington Post was the key driver responsible for the publication of the Pentagon Papers or the case is—well, it’s Hollywood: good drama but bad history.