Q: LET'S TALK ABOUT THE PENTAGON PAPERS FIRST...WHAT WAS YOUR INSTINCT WHEN SUDDENLY YOU'RE FACED WITH THIS DILEMMA THAT
THE NEWSPAPER ASKS YOU ABOUT?
Goodale: With respect to the Pentagon Papers, you have to look at the
law. That is to say the law that you can read in the case books. Then you
have to ask about the law that you don't read about in the case books, the
First Amendment. Because the First Amendment isn't attached to the Pentagon
Papers espionage statute. You have to look at the statutes and then ask
yourself constitutionally can you nonetheless print, at least in this
Goodale was General Counsel for The New York Times during the Pentagon Papers case.
Q: WHAT CAUSED TO SORT OF GIVE SUCH WEIGHT TO THE BIBLE OF HUMAN RIGHTS
OVER THE OTHER LAW?
Goodale: I was lucky because I had been at The New York Times for
a period of 8 years before the Pentagon Papers came along and being in the
bowels of The New York Times and in their newsroom, I learned about the First
Amendment in real life and then I began to teach myself the constitutional
law as applied to the newsroom. So I was lucky. I thought about the First
Q: YOU WENT TO OUTSIDE COUNSEL FOR ADVICE.
Goodale: We went, yes.
Q: WHAT HAPPENED?
Goodale: Well they put out this statute upon which I just told you and
the statute didn't say anything about the First Amendment and they said there's
an Espionage Act, it applies to you, you can't publish. You're going to go to
Q: AND DIDN'T THAT SCARE YOU?
Goodale: I don't get easily scared. I'm a former hockey player by the
Q: SO YOU WOULD GO BACK TO YOUR CLIENT AND SAY, THIS IS WHAT THEY SAY
BUT---WHAT DID YOU SAY THEN?
Goodale: Well I said look, here's the statute. It says in black and
white what you can't do. You can't be a spy. First of all I don't think
that applies to you. We're not spies. We're providing information to the
public and that process is protected by the First Amendment. So you have to
read the Constitution with the statute and then make a judgment whether the
statute is constitutional or not or whether it applies. And I said look, I
just don't think this statute applies, first of all and if it does, I don't
think it's constitutional. It can't be.
Q: AND GIVE ME THE SUMMARY.....
Goodale: Well what happened was that my advice was listened to. The
advice of this eminent old law firm, which unfortunately no longer is with us,
was not followed. And by the way that eminent firm had as it's principle
partner the former Attorney General of the United States. He told me I was
wrong. I told him--I was only 37 and he was 62--I told him he was wrong. He
said, I resign. I'm not going to defend this case, I'm not going to have this
firm defend, you didn't follow my advice. And for a period of time about
midnight of this event, I was the only lawyer to defend that New York
Times. But I got some others and the next day, we went to court and in
8, 9 days later I was proven right.
Q: AND YOU PUBLISHED THE PENTAGON PAPERS.
Goodale: We published 2 or 3 times and then we got stopped. And that
9-day period about which I've just told you was a period where we didn't
Q: THE MORAL IS THAT IF A LAWYER HAS HIS EYE ON THE FIRST AMENDMENT YOU CAN
DO A LOT IN TERMS OF INFORMING THE PEOPLE.
Goodale: Absolutely. Absolutely.
Q: WHAT HAPPENED AT CBS?
Goodale: Well I think that CBS is very much like the Pentagon Papers
case. They looked at a law, it's called `inducing breach of contract.' You
and I have a contract and Mike Wallace comes along he tries to make you the
employee tell him something about our relationship and the lawyers at CBS were
worried that that three partied event would cause something that's known as
inducing breach of contract. And they thought that applying that law, which
does exist but it doesn't apply to the press in my view, could be applied to
the press. And I think that's where they made the mistake.
Q: IT DOESN'T APPLY TO THE PRESS. HOW DO YOU COME TO THAT VIEW.
Goodale: Well you ask yourself does the First Amendment protect the
publication of the information that's the subject of our contract. And you
then ask yourself well suppose that information that's subject to our contract
is in the public interest. If it's in the public interest then the
Constitution of the United States says effectively that type of information
ought to be published. Now if the information is not in the public interest,
suppose it's a trade secret about how I make Coca Cola and you're an employee,
well that's a different matter. But if it's information that informs the
public, the First Amendment protects the publication of that type of
Q: WHAT LEADS A DISTINGUISHED CBS LAWYER, A DISTINGUISHED OUTSIDE CONSULTING
LAWYER TO COME TO THE DIAMETRICALLY OPPOSITE CONCLUSION?
Goodale: Well I think that we have tremendous corporate conglomeration
going on in the United States of media companies. They're all combining with
each other and that activity requires the concentration of really skilled
corporate people, it takes all their time. They really don't have the time to
focus on the First Amendment aspects of what they're doing. And so there's a
tilt in corporate media American now on the business aspects and the aspects
of the First Amendment are I'm afraid are not getting the same type of
attention. So I think that's what happened.
Q: HOW DANGEROUS IS THIS?
Goodale: Well I think it's extreme extremely dangerous because we're in
an information revolution, we need these large corporations and if they do not
take into consideration their principle mission in my view, which is to inform
the public, we're going to end up with the public not being informed.
Q: HOW MUCH, IN YOUR LEGAL EXPERIENCE, HAVE YOU HEARD ABOUT THIS NOTION OF
Goodale: Well the only time I ever heard it before was from the famed
editor Harry Evans who was the editor of the Sunday Times before it was
bought by Murdoch and an absolute kingpin in the media business. And he told
me that in England, this was long ago, that they had this law and he was
prevented from publishing information about thalidomide which you remember
caused terrible damage to women and children, because the English courts
recognized that this relationship between a corporation distillers and its
employees was so sacrosanct that he couldn't publish information that he
wanted to publish about thalidomide. And I said to him, this was many years
ago, gosh aren't we lucky. In the United States that will never happen, but it
Q: ...IT SORT OF DID.
Goodale: Well it did, but you know CBS finally did publish the
Q: BUT THE PRECEDENT STANDS.....THEY BLINKED WHEN CONFRONTED WITH THIS
ARCANE NOTION.... WHAT DOES THAT DO TO THE REST OF THE MEDIA...WITH THAT AS A
Goodale: Well I think the blink is a very serious thing because it sends
a signal to lawyers who are defending those companies, those entities who don't
want information about those entities published. And that signal is that, if
you find yourself in a situation where you can claim against the media inducing
breach of contract, the media is going to take the claim seriously. So I think
that's a bad signal to send to those entities.
Q: WHAT'S TO BE DONE ABOUT THAT NOW?
Goodale: Well I'm here talking. That's not going to be enough. I think
probably what's going to have to happen is that someone is going to bring a
test case based on this theory and the test case will have to go to the Supreme
Court and the Supreme Court will have to tell us, as I'm sure they will, we
have a First Amendment in this country and that kind of claim just doesn't
Q: WHEN CBS BLINKED, WAS THAT A KIND OF REFLEXIVE REACTION ON THEIR PART OR
WAS THERE A REAL EXTERNAL DANGER FACING THEM?
Goodale: I think it was the former. I think that the lawyers looked at
this particular situation where they had a contract, they knew they [had] a contract
between the employer and employee and they were worried in sort of a
conventional terms that when a corporation gets in the middle of that
relationship, a corporation might have some legal liability. I think what they
forgot about in making that analysis is that CBS isn't any old corporation.
It's in the business of broadcasting news in some part and because they forgot
the distinction they fell into this traditional legal analysis.
Q: HOW PARANOID WOULD A REPORTER BE IN FEELING THAT THIS IS A NEW FRONT
OPENING UP....THERE WAS DEFAMATION, THERE WAS LIABLE, THERE WAS ESPIONAGE, NOW
WE HAVE A NEW FRONT OPENING THAT'S GOING TO BE FAR MORE INSIDIOUS FROM OUR
POINT OF VIEW.
Goodale: I think because CBS took so much time to worry about this new
legal threat that it's created a sense of paranoia in the reporting groups.
But in reality I don't think the threat is real and that the reporters ought to
forget their paranoia. But let's face it, it's a huge corporation that was in
the news business that was held up for a long period of time so.
Q: AND BEFORE THEM ABC, ANOTHER HUGE CORPORATION, WAS FOUGHT TO A STANDSTILL
ON A STORY.
Goodale: Well I think some of the fight's gone out of the old press dog
here or tiger. I like to think that the press should fight like tigers for
their freedoms but in this world of mega corporations, huge business deals, I
think the dollar is controlling a lot of what's going on in these huge
corporations and some of the fight's gone.
Q: FROM A LAWYER'S INTERPRETATION, WHAT EFFECT WOULD IT HAVE ON THE OVERALL
CLAIM OF TORTIOUS INTERFERENCE OR INDUCING BREACH OF CONTRACT, THE FACT THAT
CBS MADE A DEAL WITH MR. WIGAND? IN EFFECT A CONTRACT WITH HIM WHICH WAS THAT
THEY WOULD NOT BROADCAST UNTIL HE WAS SATISFIED THAT HIS INTERESTS WERE
PROTECTED. WOULD THAT HAVE ADDED TO OR WOULD IT HAVE HAD ANY EFFECT ON THE
REALITY OF A CLAIM OF TORTIOUS INTERFERENCE?
Goodale: Well I don't think it'd have any effect on the claim of
tortious interference but let's face it if there was such an agreement and CBS
went ahead and published, the source would be very unhappy and perhaps could
sue CBS. So that could have been a problem for CBS. I am fairly well
satisfied that there was no such agreement that lasted for a long period of
time. But had that been in place, it could have been a problem for CBS.
Q: IN TERMS OF THEIR RELATIONSHIP WITH WIGAND.
Goodale: With the source, yeah.
Q: WITH THE SOURCE. BUT THE HYPOTHESIS IS THAT SOMEHOW THE EXISTENCE OF
THIS CONTRACTUAL ARRANGEMENT BETWEEN CBS AND THE SOURCE GAVE SUBSTANCE TO THE
CLAIM OR THE ANTICIPATED CLAIM BY THE TOBACCO COMPANY THAT THIS ACTUAL
INTERFERENCE HAD HAPPENED.
Goodale: I don't think that legally works. I think what happened is
the Wall Street Journal did a big story on what happened and it seemed to have
had a lot of documents leaked to it by CBS to justify what CBS did. And I
think what is effectively being said here, well here's another justification
for CBS in not moving ahead with the story. But I think it operates on a
different plane than the technical legal thing that you and I have been talking