Be careful what you wish for

I have several comments on Lincoln Caplan’s article on whether the press can be held liable for publishing material obtained illegally (“The Pentagon Papers Case Today,” Summer issue).

True, as Caplan points out, under current law, the press cannot be punished for publishing information that comes into its possession even if that information was obtained illegally by the person who transferred it to the publisher. Yet, if publishers take partisan positions in general and let it be known that they stand prepared to publish such information, the line between merely receiving information passively and being an active participant in its theft could under certain circumstances become uncertain.

The First Amendment protects both speech generally and the press specifically. When anybody can disseminate information on social media (except to the extent that social media suppress certain information, which is a developing issue in its own right), there is no basis to distinguish between newspapers/television/radio and anything that anybody might put out on the internet. The number and percentage of the population whom the latter can reach far outstrip those whom a traditional publisher could reach at the time the Bill of Rights was ratified. And “the press” has no realistic claim that it and it alone puts out the truth, the whole truth, and nothing but the truth and therefore deserves special solicitude.

I expect that within the coming few years New York Times Co. v. Sullivan will be overturned or eviscerated, not so much because it was decided incorrectly in 1964 as because its test is no longer practical. A commercial publisher’s relevance and profitability now depend on reflecting the 24/7 news cycle to consumers, and in order to stay current with breaking events and to compete with other sources, it may feel pressure to publish quickly before it has had a chance to do a proper investigation into truth or falsity, especially when material appears to be consistent with whatever “narrative” it is trying to promote that appeals to its constituents. That behavior would often meet the definition of “actual malice” — reckless disregard of whether a statement is true or false — unless the Supreme Court were to redefine “reckless” to exclude ipso facto any action taken to scoop others, which would be intolerable both politically and doctrinally.

Finally, people should be careful about what they wish for. Anyone who wants to see Citizens United overturned, either by a constitutional amendment or by complaisant justices’ winking and nodding, should understand that if corporations are not allowed to express political views, that includes corporations that publish newspapers and broadcasters. There is no basis to distinguish a corporation that claims to be in the business of disseminating information and opinions from one that claims to be doing other things but also disseminating information or propounding its political viewpoints.

Robert Kantowitz ’79
Lawrence, New York