Although I appreciate your ardor in preserving the freedom of the press, I will disagree with you that the Pentagon Papers case stands for the proposition that the press cannot be prosecuted for disseminating information harmful to the security of the nation. In that case, the administration sought to enjoin the Times from publishing the classified materials after the newspaper refused repeated requests to cease publication from the adminsitration. The Second Circuit COA granted the injunction. The Washington Post began publishing them, and the administration again asked the paper to cease doing so, and after it was refused sought another injunction. This time the D.C. Circuit C.O.A. refused, and the Supreme Court took the case on the fastest track ever seen.
New York Times Co. v. United States was far from a great victory for a "free press" immune from the law. The High Court 6-3 decision produced nine separate opinions that run the constitutional gamut, but its holding was simple: The U.S. failed to carry its burden to show that the danger to national security caused by the reporting of past incidents was sufficient to warrant the prior restraint of speech. That's a pretty far cry from what we've got here.
As Justice White (one of the two "swing votes" in this case) wrote:
I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints [p731] enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. [n1] Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these. [p732]
When the Espionage Act was under consideration in [p734] 1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense. [n3] Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to "filter out the news to the people through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper
should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.Id. at 2009. [n4] [p735]
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 [n5] makes it a crime to publish certain photographs or drawings of military installations. Section 798, [n6] also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems [p736] or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. [n7] If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they [p737] publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.
There is no issue of prior restraint present in the instant matter. The information on the admistration's warrantless surveilance program is already out in the world. What damage, if any, the publication of information has done to our national security I can only guess at.
However, there is still a lingering question as to whether the Times broke the law in publishing that material. The Times may hold themselves out as being above the law, but that has yet to be determined by any court. Perhaps it will be, soon. That's how we do things around here.
P.S. I haven't been able to locate any pictures of naked women worthy of Heigh-ho yet, but I'll continue to search.