On the June 26 edition of Fox News' Special Report with Brit Hume, attorney David B. Rivkin Jr. made the baseless claim that The New York Times' justification for publishing an article on a Bush administration program designed to monitor international financial transactions would also justify a decision to print details of a hypothetical upcoming attack on Osama bin Laden. Responding to Times executive editor Bill Keller's assertion that disclosing the program was a “matter of public interest,” Rivkin declared: “Under this standard, nothing is safe. I can see a headline which says, 'Tomorrow, United States Closing on [Osama] bin Laden.' You know, he is two hours away, in a cave.” But Rivkin's analogy has no basis in law: Supreme Court precedent suggests that, in contrast with the information published by The New York Times, the publication of such information about bin Laden not only could likely be punishable after the fact, but also might be blocked by a court in the first place.

The Supreme Court has previously indicated the government could legally prevent a media outlet from revealing the upcoming movement of military troops, which is what the media might be doing in the hypothetical scenario Rivkin offered. In the 1931 case Near v. Minnesota, the Supreme Court struck down a state law that allowed Minnesota state courts to issue orders preventing the publication of “malicious, scandalous and defamatory” newspapers or magazines. But the majority opinion in Near also stated that the government could prevent some matters from being published, including upcoming troop movements in a time of war: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

In the 1971 Pentagon Papers case (New York Times v. United States), in which the federal government sought a court order preventing The New York Times and The Washington Post from publishing parts of a secret government history of the war in Vietnam, the example of upcoming movements of ships cited in Near figured prominently. Justice William Brennan, in his concurrence allowing publication to proceed, cited the passage from Near to describe the “single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden.” Justice Potter Stewart (joined by Justice Byron White) wrote that publication should be prevented only if “disclosure of any of them [the documents at issue] will surely result in direct, immediate, and irreparable damage to our Nation or its people.” The New York Times relied on the Near standard in its brief in the Pentagon Papers case, and its lawyer, Alexander M. Bickel, cited this standard during his oral argument before the Supreme Court.

A May 24, 2005, Congressional Research Service report, “Freedom of Speech and Press: Exceptions to the First Amendment,” cited the passage from Near as an example of the Supreme Court's articulation of its “compelling government interest” standard that must be met to permit a prior restraint on publication.

Rivkin, as Media Matters for America has noted, formerly served as a Justice Department official in the administrations of presidents Ronald Reagan and George H.W. Bush. He has previously defended the legality of the National Security Agency's warrantless domestic wiretapping program.

From the June 26 edition of Fox News' Special Report with Brit Hume:

JIM ANGLE (Fox News chief Washington correspondent): The Times defended the story based on the public's right to know, but that does not satisfy the critics.

RIVKIN: Under that standard, nothing is safe. I can see a headline which says, “Tomorrow, United States Closing on bin Laden.” You know, he is two hours away, in a cave. Well, does the public have a right to know? This is insane. It is not the way to win this war.