The Fourth Estate

The famous Pentagon Papers lawyer discusses why a free and open press was important then, and why it still needs defending now.

As general counsel to the New York Times, JAMES GOODALE challenged the US government’s 1971 injunction against the publication of the Pentagon Papers. Almost fifty years later, the legendary attorney is still at it, defending First Amendment freedoms as a lawyer, columnist, television producer, and law professor. This interview has been edited for length and clarity.



It’s the 50th anniversary of the Pentagon Papers. For those who need a refresher, can you talk a little bit about what that was.

The Pentagon Papers themselves were more than forty volumes of history that covered the relationship between the United States and Vietnam from 1945 to 1967. Each of the volumes was prepared by a separate historian, largely PhDs from Harvard, who were given access to government documents that covered the relationship between the two countries. The bottom line was that when you looked at the history all together, it revealed that the government had told whopping lies about the reasons it got involved in the Vietnam War, starting with the excuse for its entry into the war. 

And this information was made public?

Yes. Excerpts from these volumes were delivered to my office by New York Times Editor Neil Sheehan. The information had been leaked to Sheehan by Daniel Ellsberg, a strategic analyst at the RAND Corporation and the Department of Defense who had worked on the preparation of the 1967 study. After some debate over whether the information could legally be published, the Times began publishing a series of front-page articles based on the information, starting on June 13, 1971. After the third article, the US Department of Justice got a temporary restraining order against further publication of the material, arguing that it was detrimental to US national security. This was the beginning of the seventeen-day event, also known as the Pentagon Papers, during which the Supreme Court heard the now-famous case of New York Times Co. v. United States, in which I successfully defended the right of the Times to publish the information.


Goodale (second from right) with the rest of the Times legal team outside of the Supreme Court in 1971.


Why should the media be able to publish classified information that has been leaked?

To me, it was really a pretty simple issue, though it was not a simple issue for other people, namely, established lawyers who represented corporate interests. They’d sort of forgotten what they should have remembered from fifth grade: The First Amendment permits you to publish. We were talking about these volumes that had been prepared by PhDs and they had been stamped, “classified top secret.” The precise issue was: Does that make any difference? And it seemed so obvious to me that it didn’t make any difference. But I was up against the former Attorney General of the United States [Herbert Brownell], the former president of the New York City Bar Association [Louis Loeb], the former assistant ambassador of the United Nations, and Times executive vice president [Harding Bancroft] — I was up against everybody. 

I think that, however, when you’re someone who's attracted to writing journalism, you're always meeting with powerful people and you're writing down their stories, so you get used to that relationship. So the fact that the people who were opposing me were so important frankly didn't impress me at all. In fact, it was a reverse impression. That is to say, I think, because they were so important, they had forgotten where they started from. These people were a generation older than I was. I just figured they'd lost it and forgotten. I’m not an arrogant Phi Beta Kappa; I just never thought for one second that I was wrong.

Do you think there are cases in which it is not okay or shouldn’t be legal to publish classified information? 

We all have rules that we live by — a general framework within which we apply the rules to ordinary situations. And then you ask yourself, "If this was an extraordinary situation, would the rule be different?" With respect to classified documents, are there times when you wouldn’t want to publish? The answer is yes. You can make up your own examples. The atomic bomb during WWII, for instance. You wouldn’t publish that; the Nazis would get it and they would bomb us. But when I read the volumes I was given and I went to the footnotes, I found that great parts of what I was reading came directly from stories already published in the New York Times. So here we have a situation where I'm reading stuff from the New York Times. But I'm being told that if the government comes in, they can put me in jail for reading what I've already published in the New York Times. And that's crazy, that can't be right. 


James Goodale as a young lawyer in his New York Times office.


Over the last five years, we’ve seen news outlets across the political spectrum move further away from the middle — whether to the left or to the right. Do you agree?

I think we have definitely seen that shift. While the spectrum has always had extremes, I think we have a lot of extremism now driven in large part by social media. With social media, you end up with a lot more noise on the far left and the far right than would otherwise exist. I don’t think it’s a good thing. It makes for a very difficult atmosphere. 

You’ve had a long, distinguished, accomplished career as a First Amendment lawyer. Is there anything you still hope to accomplish?

There is an untold part of the Pentagon Papers case which I would like to be part of. The Pentagon Papers case decided that the government can't stop publication; it didn't decide that the government could go into criminal court and put everyone in jail. That is happening to Julian Assange of WikiLeaks right now. I would like to see Julian Assange get off because I don't think the law applies to him. I've been active in writing about that and talking about that and I would like the law to make clear that someone like Julian Assange — who's sort of a quasi-journalist, quasi-writer — gets the protection of the First Amendment. 


Goodale with other executives from the New York Times.


When you came to Pomfret in 1948, you’d planned to be a “star on the football field.” Can you tell me what happened when you tried out for the team? 

When I enrolled at Pomfret, I had my whole life planned out — I was going to be a football star. There was just one problem: I was only 5’ 6” and weighed 119 pounds soaking wet. I went to Pomfret because if I’d gone to a larger school I would have disappeared. I would have been bringing out the water to larger players. At the time I attended Pomfret, there was a tradition where every student was assigned to a particular master’s table and you would sit there for a week until assigned to another master’s table. My first day, I was assigned to the coach of the football team, Manny Mansfield. I was in seventh heaven and the only thing I wanted to do was impress him. I thought, "All he has to do is know me and we’ll be off to the races." The very next day was the first day of football practice. Since being fitted for equipment was so tedious, there was no time to actually practice. The next day I excitedly went to the gym to prepare for our first real practice. There was an announcement pinned to the gym door listing the students who had been cut from the varsity squad. The very first name on the list was mine. I remember thinking, “How can that be? I haven’t even thrown a pass. I haven’t even caught a ball!” 

How did your aspirations change as you grew from a boy to a young man on the Hilltop?

I had the good fortune of being in Dorm III in the room next to Ted Sizer. He invited me to try out for the Pontefract. I ended up becoming editor, which really changed my attitude towards studying. I did not have a good attitude towards studying, but when I had to write editorials for the Pontefract and engage in writing, I couldn't go into class and be a dunce, so it was really the Pontefract that sort of pushed me forward to be more literary. I think also, when you get a position — this is the great wonder of extracurricular life at any school, particularly Pomfret — if you do well in extracurricular life and the faculty begins to respect you a little bit, then you have to act as though you have some intelligence, so it’s a virtuous circle.


Goodale's bestselling book, published in 2013.


What do you consider your greatest accomplishment? 

I would have to say the Pentagon Papers, because I was the only one who had it right all along. I have three wonderful children who I’m incredibly proud of. I should mention that among the three, they captained nine prep school teams. I’m also really proud of my ability to get stuff in print, because I’m not a writer, really, I’m a lawyer. I’ve written for fifteen different publications, including the New York Times, New York Review of Books, and Harper's. I’m pretty proud of that. 

The Class of 2021 has just graduated and left the Hilltop. If you had spoken at their Commencement, what advice would you have given them? 

I think the idea of having a really independent view is absolutely essential. Do not simply accept anything you are told because, probably, what you’ve been told is subject to further examination, elucidation, and change. That is particularly relevant in today’s world, with social media, in which you have so much disinformation. Think for yourself, always, but particularly with respect to disinformation, and separate the wheat from the chaff.


Celebrating his birthday with three generations of Goodales on Martha's Vineyard.

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