The First Amendment: New York Times v. United States (Mock Trial/ moot court)

In 1971, Daniel Ellsberg, an employee of the State Department, “leaked” secret military documents to New York Times reporter Neil Sheehan. The documents were part of a study commissioned in 1967 by the Johnson administration to determine the process through which the United States became involved in the Vietnam War, and whether these decisions were flawed.

When the Nixon Administration learned from The Times that the “Pentagon Papers,” as they came to be called, had been leaked, they ordered the newspaper not to publish them, citing national security concerns and “executive privilege” in controlling government information.

Your task in this case is to determine whether the government has the power to prohibit a news outlet from publishing secret information it has already obtained. Note that the question does not involve punishment after the fact, but “prior restraint” – the prohibition of publishing at all.

It is expected that attorneys and witnesses will supplement these basic facts with research on typical conditions and circumstances of the case. All outside research must be properly cited, using footnote format. AT LEAST ONE SOURCE CITED HERE MUST BE A BOOK. Attorneys’ and witnesses’ papers missing this research will not be accepted.

Due on the day of the trial

For attorneys: A two-page essay arguing your case. You must argue for or against the constitutionality of the law. This paper may serve as the basis for your opening statements in class. Some outside research on the circumstances of the case will be necessary

For witnesses: A two-page homework response in the form of an “affidavit,” explaining your position. You need not argue over the constitutionality of the law, just describe and explain your behavior.

Due the class meeting after the trial

For Justices: A one-page homework response declaring your opinion in the matter. Present your decision and explain how you came to it.

Assignments

Attorneys for NYT: 

Attorneys for US:

Neil Sheehan: 

HR Haldeman:

Judges: 

 Procedures:

8:15-8:30    Meet with your group to review the case

8:30 – 8:40      Opening arguments. Attorneys must present a three-minute minimum argument before the ourt.

8:40 – 8:55 (maximum)  questioning of Sheehan (appellant first)

8:55 – 9:10 (maximum)  questioning of Haldeman (respondent first)

9:10 – 9:15      closing arguments

9:15 – 9:35      Justices deliberate

Each student will earn an essay (for the written work) and an oral presentation grade (for in-class work).

Negative and Positive Liberty in American Discourse

What do Americans mean when they talk about "liberty"  or "freedom"?

lecture (10 min) on Isaiah Berlin's definitions of liberty (from "Two Concepts of Liberty")

NEGATIVE LIBERTY: freedom from restriction

“What is the area within which the subject – a person or group of persons –  is or should be left to do or be what he is able to do or be, without interference by other persons?”

POSITIVE LIBERTY: freedom to do

"What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?” 

show (15 min) quotations; students write in notebooks whether quotations represents positive or negative liberty

THOMAS JEFFERSON: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

ABRAHAM LINCOLN: It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

FRANKLIN DELANO ROOSEVELT: The first is freedom of speech and expression -- everywhere in the world. The second is freedom of every person to worship God in his own way -- everywhere in the world. the third is freedom from want -- which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants -- everywhere in the world. The fourth is freedom from fear -- which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor-- anywhere in the world.

JOHN F. KENNEDY:  In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility—I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it—and the glow from that fire can truly light the world. And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country.

LYNDON BAINES JOHNSON: The “Great Society” rests on abundance and liberty for all. It demands an end to poverty and racial injustice, to which we are totally committed in out time. But that is just the beginning. The “Great Society” is a place where every child can find knowledge to enrich his mind and to enlarge his talents. It is a place where leisure is a welcome chance to build and reflect, not a feared cause of boredom and restlessness. It is a place where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. It is a place where man can renew contact with nature. It is a place which honors creation for its own sake and for what is adds to the understanding of the race. It is a place where men are more concerned with the quality of their goals than the quantity of their goods. But most of all, the “Great Society” is not a safe harbor, a resting place, a final objective, a finished work. It is a challenge constantly renewed, beckoning us toward a destiny where the meaning of our lives matches the marvelous products of our labor.

discuss (10 min) answers -- is there a trend? Are there changes over time?

converse (10 min)  do you prefer one or more of these forms or liberty? Can we have Johnson's and Jefferson's at the same time?