frontlinesmoke in the eye

interview: james goodale

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 was General Counsel for The New York Times during the Pentagon Papers case.
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 country.

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 Amendment.

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 jail.

Q: AND DIDN'T THAT SCARE YOU?

Goodale: I don't get easily scared. I'm a former hockey player by the way.

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 publish.

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 information.

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 TORTIOUS INTERFERENCE?

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 almost did.

Q: ...IT SORT OF DID.

Goodale: Well it did, but you know CBS finally did publish the information.

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 PRECEDENT?

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 work.

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 about.


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