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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, January 31, 2018

A Law School Dean's Oscars Preview: The Post

The PostNicholas W. Allard (Dean Brooklyn), Reel Law: The Post:

Earlier this year I felt like an old fogey when I realized that none of my first-year law students had ever heard of Perry Mason.  No kidding.  Even after I explained and they googled the fictional iconic trial attorney, most still thought that Della Street was an address.  So, this week as we had our water cooler conversations about the Academy Award nominations, I was somewhat prepared for their disinterest in The Post, Steven Spielberg’s wonderfully crafted, compelling, painfully timely newsroom drama.  Sure enough, most of the students who have not yet seen the film mistakenly assumed that it was about the Washington Post’s role in covering the Watergate scandal and ultimately ending the Nixon presidency.  They were surprised but not piqued to hear that The Post actually deals with the epic first amendment legal battle over the publication by The New York Times in May, 1971, and soon after by the Washington Post, of the massive secret defense department study of the history of the Vietnam War, popularly known as the Pentagon Papers.  I suspect that in addition to only being vaguely aware of this legal history they also have had more than their fill of the constant cacophony of draining breaking news about lies, bad behavior and misconduct by public officials.  I bet that these students would rather study the dreaded “rule against perpetuities” than pay good money for more of the same in a movie with a Washington plot. 

Even so, there are many reasons why young, aspiring and recently minted lawyers — who can get away from their work and afford it — should see the film.  With 8 Academy Awards won prior to this year’s pending nominations between Director Steven Spielberg and the leading actors, Meryl Streep, who now has her record-breaking 21st Oscar nomination for The Post, and the incomparable Tom Hanks, the Oscar pedigree alone of The Post makes it worth seeing.  Incredibly, it is the first time that Streep and Hanks have appeared on screen together and their chemistry is magic.  Then there is the obvious attraction of a highly entertaining, fast-paced, seamlessly interwoven triple homage to journalistic independence, politics, and a powerful successful woman who does not fit any conventional mold.  The result is a film, co-written by Liz Hannah and the Academy Award winning Spotlight’s Josh Singer, that surely should be added to the list of the many great films that feature newspapers and reporters:  from Citizen Kane (1941) which marks the birth of modern cinema to Spotlight (2015) the investigative procedural set in Boston about the Catholic Church’s Sex ScandalThe Post certainly can hold its own with the varied genre of terrific news flicks such as It Happened One Night (1934), His Girl Friday (1940), Woman of the Year (1942), Call Northside 777 (1948), Sweet Smell of Success (1957), and Zodiac (2007).  My personal list also includes Michael Keaton in The Paper (1994), a film about an edgy upstart city newspaper trying to best its silk stocking tonier uptown rival.  The Post has more in common with The Paper than it does with Keaton’s more recent turn as an editor in Spotlight.  It is hard to compare the best films about electronic media when it comes to Spielberg’s nostalgic cinematic caress of the cluttered sights, clammy stinky smells, clickety-clack keyboards and swooshing vacuum delivery tube sounds, stale white bread sandwiches and cigarette stub flavored tastes, and the hot lead print, three day shirt feel of the old fashioned print newspaper.  With the possible exception of George Clooney’s Good Night and Good Luck (2005), a stylish treatment of Edward R. Murrow’s radio broadcasts, even terrific films about electronic media such as the satire Network (1974), the romcom Broadcast News (1987), and the wild comedy romp AnchormanThe Legend of Ron Burgundy lack the romanticism of Spielberg’s loving on screen portrait of a bygone era of print journalism.

Lawyers have as much, if not more cause than anyone to be drawn to a well told story centering on the simultaneously dependent and adversarial relationship between the press and political establishment in America.  And that is what you get in The Post.  As a matter of legal literacy they also hopefully should be familiar with the Pentagon Papers, one of the greatest landmark Supreme Court cases in first amendment jurisprudence which is at the core of The Post.

The public and certainly lawyers should know that the Pentagon papers were a study commissioned in 1967 by Robert McNamara, the Secretary of Defense in the Lyndon Johnson administration.  He assigned a group of military and civilian experts to write a definitive history of U.S. involvement in Vietnam from 1945 up to the present.  Completed in 1969, just days before Richard Nixon’s inauguration as the 37th U.S. President, the report spanned 7000 pages of original documents and historical analysis.  It was designated “Top Secret — Sensitive” status, in no small part because it revealed that from the end of World War II to 1968 four presidents lied to Congress and the public about U.S. activities in Southeast Asia, as well as covert bombing operations in neighboring Cambodia and Laos during President Johnson’s expansion of the war.

Daniel Ellsberg was an ex-marine aide to McNamara who worked on the report.  He became an opponent to the war by the time of its escalation at the end of the 1960’s.  In late 1969 Ellsberg photocopied the study and in 1971, he gave all 47 volumes of it to Neil Sheehan, a reporter at The New York Times.  Aware of the legal, political, and business ramifications, The New York Times began running stories about the Pentagon Papers as a matter of journalistic responsibility for the public interest.  President Nixon’s Attorney General John Mitchell and the U.S. Department of Justice sought and obtained an injunction on national security grounds and as a violation of the Espionage Act.  At that point, the Washington Post which had obtained its own copies of the documents began to publish articles on the subject.  An epic legal battle ensued between the Nixon administration and the two papers that rapidly made its way to the Supreme Court.

Two of the key players in this real life drama were Ben Bradlee and Katherine Graham.  As the Washington Post’s executive editor, Bradlee’s place in cinema history is already assured thanks to Jason Robards’ unforgettable Academy Award winning performance in All The President’s Men (1976), which dramatized the newspaper’s later investigation into the Watergate burglary and the Nixon cover up.  In The Post, Tom Hanks is less the French collared and cuffed, virile ubermale portrayed by Robards and more the tough, gruff, noisy oil burning exhaust spewing clunker driving, everyman editor possessing a sharp nose for a good story.

One of Bradlee’s biggest challenges in publishing the story was with the Washington Post’s owner, Katherine Graham, played with complex depth and subtlety by Meryl Streep.  Streep’s Graham understands and feels responsible for the grave consequences of the decision to publish the Pentagon Papers in contrast to Hank’s Bradlee, who shouldered less responsibility than she for the continuity of the business enterprise at a time of great financial jeopardy for the paper.  He cared more for the principle of freedom of the press and frankly could afford to in that ultimately he could find another job if need be.  Not so for Graham whose entire life, family legacy, and her business career centered on the Washington Post.

Graham had been a journalist when there were few women journalists much less editors and managers.  She was also an excellent writer (her memoir Personal History won the Pulitzer Prize in 1998), yet throughout her career she necessarily operated in an environment where she was more tolerated, and patronized than accepted, in what was regarded as a “man’s world”.  By the time Graham became known in households throughout America, her reputation was legendary and deserved. But, that attainment was not obvious nor expected when she took control of the paper following the death of its owner, her husband Philip, in 1963.  Early on there were harbingers of her independence and strength that would serve her and the paper well and she remained chair of The Washington Post Company until 1991.  For example, in a telling, decisive controversial stroke she was responsible for hiring Bradlee away from Newsweek to run the newsroom.  But when The Post picks up the thread of her life, Graham the icon is not yet fully formed.  Watching Streep convey the complexities of the transformation is alone worth the price of admission.  Katherine Graham never was all society hostess nor completely subservient to her colleagues, and she never was all made of steel.  By revealing the different dimensions of her character, Streep highlights how incredible it was for Graham to risk destruction of the her family paper, as well as long term imprisonment for herself, because of her belief in the role of newspapers and in order to expose government wrong doing.

Streep and Hanks are supported by a large, brilliant ensemble cast.  Two absolutely sparkling performances stand out above all the stars.  Odenkirk, playing Assistant Managing Editor Ben Bagdikian, who in his Larry David meets Detective Colombo way, amazingly, poignantly and ultimately successfully becomes the unsung Pentagon Papers hero.  Sarah Paulson deftly humanizes Bradlee while offering up yet another version of a wise empathetic woman worth listening to in the brief scenes she appears in as Bradlee’s wife, Tony — Spoiler alert, in a movie about the press, not surprisingly, it is the journalists who are front and center as the heroes.  If anything, the Washington Post’s lawyers, though it is proudly noted here that they won the case, are presented in a stereotypical unflattering light as over cautious naysayers.  This writer’s personal disappointment is that there is not more of the remarkable Meg Greenfield in The Post, a newsroom soulmate if not ally of Katherine Graham and a legend in her own right who many of us Washington boomers were privileged to know and admire.

For students of the law and government, a story about these giants of journalism pursuing the truth and dedicated to holding government accountable these days should be an especially riveting, refreshing change of pace.  They will also find The Post to be a primer about how the first amendment protection of the press can in turn shield people from abuse of power; an encouraging reminder about the Constitution to say the least given our current tense political predicaments.  This explains why as The Post’s credits role in theaters, audiences are cheering, tearing up and clapping, many all at once.  It is the conceit of every generation to believe that its own contemporary experience is one the world has never seen before.  For Millennials including current law students who do not yet know, it would be prudent to learn both how our brilliantly designed, complex, cantilevered, limited system of self-government dealt with political dysfunction and abuse of power in the past, and to comprehend what it takes to sustain democracy in times of existential threat.  Walter Schaub, the amiable former Director of the United States Office of Government Ethics, who early on butted heads with the Trump administration put it simply a recent international conference of government ethics lawyers when he said:  “What democracy requires is a free press”.  Above all else The Post is a timely, powerful education about what is at stake when the government attempts to prevent the press from doing its constitutionally protected job.

The poignant timeliness of Spielberg’s cinematic mirror reflecting upon the ongoing struggles between the Trump White House and the media is not completely coincidental.  Production of the movie was well advanced at a time when it was assumed that Hilary Clinton would be the first woman president. The storyline no doubt was to be based on the challenges and inspirational success of a remarkable woman who was the owner of a major newspaper in a male dominated world.  And it is.  In fact, this initial storyline might explain why the movie’s focus is on the Washington Post rather than The New York Times when, after all, the Times initially broke the Pentagon Papers story.  Katherine Graham the original protagonist was based in Washington, D.C.

By all accounts, after the election of President Trump, Spielberg pivoted.  The Post suddenly became an opportunity to sound an alarm by dramatizing the role of the press and real news in preserving liberty and justice.  Production of the movie began in May of last year and the movie made it to theaters before the yearend holidays, in time for the current award season.  No matter that the screenplay now divides its attention between a particularly grand great lady and the entire fourth estate as co-heroes, or that the focus is a paper in Washington, D.C instead of the Gray Lady in Manhattan.  Movie goers discover that a lot more is going on in the movie than originally was intended, all to good effect.  For starters, the delicious way Spielberg handled the cultural differences and polite antagonisms between the two papers is one of the most delicious aspects of the film.  The main course is a powerful feast girding us to survive a daily unnourishing diet of alternative facts, the endless mantra of “fake news”, and fascist- communist era epithets like “enemy of the people” intended to discredit and disparage the press. 

What truly could not have been foreseen as The Post sped to production was the explosion of the “Me Too” and “Times Up” movements in the wake of the cascading events precipitated by the Weinstein scandal.  Consequently, The Post is, after all, utterly on point as a major work about the role and rights of women in society.  As so often happens, this is a year when the film industry offers us several provocative works about the same hot topic.  In 2017 it outdoes itself by throwing out the cookie-cutter, and crafting an unprecedented number of must-see films about unique, remarkable women such as Three Billboard’s Outside Ebbing, Missouri, Lady Bird and I Tonya to mention a few.  The Post holds its own in this historic cinematic cohort.

About the worst that can be and has been said about this fine film is that it is too good.  There are the vaguely snobbish snipes that The Post is predictably, Stephen Spielberg manufacturing a reliably entertaining mass-market, widely appealing and accessible film vehicle.  As if he ran a movie assembly plant in Detroit.  Sorry, it is difficult for some of us to grasp the problem.  Certainly those were the kind of comments often directed at other great filmmakers like Billy Wilder and John Ford.  Not bad company to be in.  Besides, any past rap on Spielberg for avoiding the dark places is baseless in The Post.  His use of actual White House recordings and long shot images of a vengeful, lonely Nixon, phoning mean-spirited orders to his staff is down-right creepy.  Of course, the climactic scene where the chief printer on deadline gets the call to publish, hits the green button starting the presses to roll and the whole clichéd scene right up to loading the delivery truck is in Spielberg’s and countless other remembered newspaper flicks.  Why?  Because it works!

Truth be told, there are many problems with the press and journalists are not exclusively the good guys.  Many of the great movies about journalism and reporters, in fact, are about the dark side of journalism.  The Post is not one of them.  We can forgive Spielberg for avoiding telling this story, even though some are still sore about how the press contributed to the outcome of the last election.  While journalists did not elect President Trump, they certainly gave him the oxygen of free coverage to get his candidacy airborne.  Their dangerous passivity may be explained perhaps by the business decision that covering Trump was attracting attention to media coverage.  Journalists, as with most observers, thought there could be little harm in covering the carnival show because they wrongly thought Trump had no real prospect of winning the election.  Now it may seem to some as if they are over compensating, but, in reality, they are only doing their jobs.  So has Stephen Spielberg and everyone involved in delivering to theaters near you, an award worthy film about major issues that shape our lives.

Correction:  In my previous commentary about Darkest Hour I joined most observers who assumed that the scene of Churchill talking with ordinary people during a short ride on the London underground never happened.  I now have it on excellent authority from a source close to both the Royal and Churchill families that it sort of did happen.  Churchill button-holed citizens in the streets about whether to surrender or fight.  The Churchill family papers contain the names of those he spoke to.  At least in this case I am delighted to be corrected.

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Comments

1) Even in this age of greatly diminished law school admissions standards, I refuse to believe that none of your students, who are of the same generation as I am, have heard of Perry Mason or know the basic outline of Watergate.

2) The movie is fine, but it's hardly stands favorably when comparison to Spielberg's heights as a filmmaker or to the great newspaper movie of our age, Spotlight. I found the script to be ploddingly expository, reductive, perfunctory, and aimed at people who have never actually read a newspaper or a history book. It felt like the whole thing was pasted together from script to release in about nine months - which it was. In contrast, the writers of Spotlight actually uncovered new aspects of the Catholic Church scandal in Boston during their research for the movie. (and to underscore how news, like law, is a relatively small profession fairly rife with favoritism of all sorts, the assistant editor at the Globe during the events of Spotlight was... Ben Bradlee Jr. And to underscore the power of social capital, take a gander at Bradlee's family history, which is a tale of colonial-era old money, lineages traced back to at least three European royal families, the founders of Vanity Fair and Conde Nast, and of course many generations of attendance at Harvard. Such things make it rather easier to get one's foot in the door at a Washington Post (or GS, S&C, Bain, or literally any selective employer on the planet)).

And while we're on the subject of speaking truth to power, what to make of WaPo's extraordinarily laggard higher ed reporting during the time the Washington Post Company also owned Kaplan and counted on it to underwrite the paper's losses? While the NYT, WSJ, USA Today, and other major papers were writing story after story on for-profit horrorshows, the law school crisis, the student loan bubble, etc. et. al., the Post was very conspicuously not. Hmmm. And lest one think this just another one of my pet peeves, one can find several articles in the Chronicle of Higher Education, New York Times, and even the WaPo itself about this very thing: when Kaplan was making ~60% of the Washington Post Company's revenues, the WaPo was ignoring every issue with for-profit higher education and higher ed in general. In fact, on at least one occasion the paper's editorial page excoriated the proposed Gainful Employment regulations. Truth to power indeed.

Posted by: Unemployed Northeastern | Jan 31, 2018 10:27:42 AM

It needs to be stressed the Pentagon Papers did not reveal any secrets. It was a look backwards at what had just happened.The drama came when the press disobeyed the Pentagon for the first time. Up until then, the "media" knew the Pentagon was lying out its ass, going all the way back to WWII. The media, however, had an unwritten rule not to expose the lies.

The situation today is dramatically different. Snowden still faces many years in prison if he comes in from the cold. What he did took real guts. I'm glad he did. I hope we have many more Snowdens in the future. Imagine a world with no secrets. Imagine every government clerk's fantasies being exposed on the web. Maybe then we would have shot at taking back our government.


Posted by: Dale Spradling | Feb 1, 2018 7:25:09 AM