July 27, 1933 |
|Alma mater||Yale University; University of Chicago Law School|
|Employer||Debevoise & Plimpton|
|Known for||Pentagon Papers; Reporters' Privilege|
James C. Goodale (born July 27, 1933) is a leading First Amendment lawyer currently at the law firm of Debevoise & Plimpton. He is the former General Counsel and Vice Chairman of The New York Times and has represented the Times in all four of its cases that have reached the United States Supreme Court. He has also been called “the father of the reporters' privilege.”
He was the leading force behind the Times’ decision to publish the Pentagon Papers in 1971. After the Times’ outside counsel, Lord Day & Lord, advised the Times against publishing classified information and quit when the United States Justice Department threatened to sue the paper to stop publication, Goodale led his own legal team and directed the strategy that resulted in winning the Supreme Court case of New York Times v. United States.
He has hosted and produced a half hour TV show Digital Age on WNYE-TV covering media and legal issues since 1996. He has written over 200 articles on media law and press freedom for many publications, including The New York Times, New York Review of Books and The Daily Beast.
Goodale has taught for over thirty years at Yale, New York University, and Fordham Law Schools.
His memoirs, entitled Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, will be published by CUNY Journalism Press on April 30, 2013.
Jim is editor and publisher of the MMMCS( Murray Murdoch Marching Chowder Society) a lively, informative, and digital newsletter with guest contributors recapping Yale Men's Hockey games. It is sent electronically to Society members after each game.
Education and Early Career
Goodale was born July 27, 1933 in Cambridge, Massachusetts. His mother, a college professor, was the daughter of the Shakespearean scholar Oscar James Campbell, Jr. who wrote The Readers Encyclopedia of Shakespeare. Goodale graduated from Yale University in 1955, which he attended on the William Brinckerhoff Jackson Scholarship. At Yale, he played on the baseball and hockey teams. He received his Juris Doctorate from the University of Chicago Law School in 1958, which he attended on a National Honor Scholarship.
From 1959 to 1963, he worked for the Wall Street law firm of Lord Day & Lord. That firm was also the long time outside counsel of the New York Times. During this time, he also served for six years in the Army Reserve as a strategic and intelligence research analyst, which influenced his views on overclassification and convinced him it was not a crime to publish classified information.
New York Times
At age 29, Goodale set up the legal department at the New York Times and subsequently became its first General Attorney in 1963. In 1964, the Supreme Court decided New York Times v. Sullivan 9-0 in favor of the New York Times, overturning a libel conviction and establishing the modern rules for libel for public figures.
In 1967, Goodale spearheaded the financial reorganization of the Times. He advised the Times' publisher Arthur Ochs Sulzberger to purchase Cowles Communications, a transaction that helped the Times regain profitability. He also conceived and implemented the stock structure which was used to bring the New York Times public, a structure that was later copied by the Washington Post and other media companies.
In March 1971, former Defense Department employee Daniel Ellsberg leaked the Pentagon Papers to New York Times reporter Neil Sheehan. Executives at the Times argued for three months about whether to publish them or not. Harding Bancroft, the Senior Vice President, Sidney Gruson, Assistant to the Publisher, and the Times outside counsel, Lord Day & Lord, advised the Times not to publish. Goodale successfully convinced publisher Arthur Ochs Sulzberger that the First Amendment protected the New York Times from prosecution for publishing classified information.
On June 13, 1971, the Times printed its first articles and documents of the Pentagon Papers. When Attorney General John Mitchell indicated the Justice Department would sue the New York Times to stop any further publication, Lord Day & Lord refused to represent it and quit the night before the first court hearing. Goodale, along with the law firm of Cahill Gordon & Reindel and Yale Law School professor Alexander Bickel, defended the Times in court.
Goodale was the first to develop the now widely accepted arguments that the Espionage Act should not apply to publishers or the press. These arguments were later adopted after the Pentagon Papers trial by District Court Judge Murray Gurfein. After his decision, the Justice Department dropped the Espionage Act argument from the case.
In a 6-3 decision, the Supreme Court ruled the US government could not stop the Times from publishing the Pentagon Papers, holding that prior restraints were barred by the First Amendment unless the publication “will surely result in direct, immediate, and irreparable damage to our Nation or its people.”
In January 1970, as part of a wave of subpoenas issued to national reporters, New York Times reporter Earl Caldwell was subpoenaed by the US Justice Department. Media organizations such as Newsweek, Time, and Life magazines complied with their subpoenas, but Goodale caused the New York Times and Caldwell to challenge Caldwell’s subpoena. Caldwell and the Times argued in court he did not have to answer questions from a grand jury about the identity of his sources because, as a member of the press, he was protected by the First Amendment. Caldwell and the New York Times won in the 9th Circuit Court of Appeals, thereby establishing reporters' privilege for the first time in any court.
In 1972, Caldwell v. United States was merged with two other similar cases at the Supreme Court and became known as Branzburg v. Hayes. Goodale crafted the media’s strategy at the Supreme Court level. In a 5-4 decision, the Supreme Court overurned Caldwell's case and held reporters, in the circumstances of the case, do not have a First Amendment right to protect their sources and defy a subpoena. Justice Powell’s concurrence with the majority was the swing vote.
Goodale subsequently wrote an article for the Hastings Law Journal in which he argued that Justice Powell’s concurrence with the majority actually argued for a qualified reporter’s privilege, “though, on its face, their ruling said just the opposite.” He argued the Court’s ruling was narrow and so the reporter’s privilege should be judged on a case-by-case basis.
Using his article as a basis for protecting reporters’ sources, he persuaded other media companies, such as Time, NBC, CBS, and the Washington Post to refuse to comply with government subpoenas. He argued using the power of contempt to resist requests for sources would cause state and federal courts, as well as state legislatures, to recognize a qualified reporters’ privilege. This strategy succeeded, as over 1000 reporters privilege cases have been brought before state and federal court since his Hastings Law Review article, while only two or three were brought before. Thirty nine states now have some form of a reporter’s shield law, ten other states have a common law privilege, and most federal circuits recognize a reporter’s privilege as well—many using the language proposed in Goodale’s law review article.
Goodale’s interpretation of Powell’s concurrence was confirmed in 2007, when notes of Powell’s were discovered saying reporter’s privilege cases should be decided on a case-by-case basis.
In October 1973, Vice President Spiro Agnew subpoenaed reporters for the New York Times and Washington Post for its sources on a story detailing the confidential criminal investigation into Agnew’s dealings when he was Governor of Maryland. Instead of complying with the subpoenas, Goodale devised a strategy whereby the reporters’ notes would be given to New York Times publisher A.O. Sulzberger and Washington Post owner Katharine Graham and they would refuse to hand them over to the court. If Agnew wanted the reporters’ notes, the judge would have to send the owners of the two biggest newspapers in the country to jail. Agnew’s subpoenas were dropped after he resigned the Vice Presidency the following month.
In 1978, New York Times reporter Myron Farber was subpoenaed by a New Jersey state court in the murder trial of Dr. Mario Jascalevich and refused to testify on the advice of Goodale. He subsequently caused Farber and the Times to go into contempt of court. Farber spent 40 days in jail and the New York Times was fined a total of $101,000 dollars. The Governor later returned the fines and New Jersey passed a state law providing reporters a qualified privilege in response to the case.
Post-New York Times Career
Goodale joined Debevoise & Plimpton in 1980, bringing the New York Times as a client with him. He established two practice groups, one for the representation of media companies, particularly new media companies such as cable television, the other for First Amendment and intellectual property litigation.
At Debevoise, he or his groups have represented The New York Times, the Hearst Corporation, NBC, Cablevision, the New York Observer, Paris Review, Infinity Broadcasting, the NFL, NHL, and NBA. He has personally represented George Plimpton, Harry Evans, Tina Brown, Margaret Truman, and former New York City Mayor John Lindsay.
In 2001, Debevoise & Plimpton represented the New York Times in the Supreme Court case of New York Times Co. v. Tasini. This was the fourth case Goodale represented the New York Times at the Supreme Court.
As counsel to George Plimpton, Goodale convinced Plimpton to turn The Paris Review into a foundation. Over the initial rejections of Plimpton, Goodale’s decision to make the literary magazine a non-profit foundation ensured The Paris Review would survive beyond Plimpton’s 2003 death. Plimpton had been the magazine’s editor since 1953.
Goodale also assisted in the creation of the New York Observer, which was founded by Arthur L. Carter. Goodale also arranged for Carter to purchase The Nation magazine from Victor Navasky, which was, in turn, re-purchased by Navasky.
Television and Print
From 1995 to 2010, he hosted and produced Digital Age, a television program on WNYE-TV, initially a PBS station, which reaches 10 million homes in the New York metropolitan area. His guests have included Ben Bradlee, Arthur O. Sulzberger, Jr., Walter Cronkite, Tom Brokaw, Arthur Schlesinger, Henry Kissinger, Dan Rather, Chuck Schumer, and Michael Bloomberg. He is presently the co-producer of the program.
Since 1977 he has written a column in the New York Law Journal on “Communications and Media Law.” His articles on the First Amendment have been published in The Stanford and Hastings Law Reviews, The New York Times, The New York Review of Books (cover piece), The Nation, The Nieman Report, The New York Observer, The National Law Journal and The Daily Beast.
He has appeared on News Wars, the award winning PBS series Frontline, and the documentary The Most Dangerous Man in the America – Daniel Ellsberg and the Pentagon Papers, which was nominated for an Academy Award in 2009.
Goodale’s book All About Cable has been cited twice by the U.S. Supreme Court.
He founded the Communications Law Seminar at the Practising Law Institute for media lawyers, which effectively formed the first media and First Amendment bar association for lawyers representing media companies. He chaired the Seminar from 1972 until its 35th anniversary in 2007. It is one of the largest legal seminars in the U.S.
With Yale and the Ford Foundation, he started the Master of Studies in Law and Journalism Program for journalists specializing in law who wish to study one year at Yale Law School. The program was inaugurated in 1976.
From 1989 to the present, Goodale has been a board member of the Committee to Protect Journalists. He served as the board’s Chairman from 1989 to 1994, where he raised CPJ’s profile internationally and significantly increased its budget. His first year as chairman, CPJ had a budget of $300,000 and no endowment. Today, it has a budget of more than $4 million with a $10 million endowment. Goodale has also served on the boards of The New York Times, New York Times Foundation, National Law Journal, New York Observer, Human Rights Watch, Media Law Reporter, Paris Review Foundation, and the International Center for Journalists.
In 2005, Goodale criticized Time Magazine editor Norman Pearlstine’s decision to turn over reporter Matthew Cooper’s notes to the grand jury investigating the leak of CIA operative Valerie Plame’s name to the press. "A public company must protect its assets even if that means going into contempt," Goodale said. "It has an obligation under the First Amendment to protect those assets, and it's in the interest of shareholders to protect those assets.
Goodale called Pearlstine’s decision “disgraceful” and attempted to have him removed from the board of the Committee to Protect Journalists. Pearlstine published his account of the controversy in a 2007 book Off the Record: The Press, the Government, and the War over Anonymous Sources.
Mr. Goodale is married to the former Toni Krissel of New York City who is President of an international fund-raising firm, T.K. Goodale Associates. They are the parents of Tim (Co-Founder of Teragon Capital Partners, London) and Ashley (formerly of the NYC Office of Legal Counsel), and the foster parents of Clayton Akiwenzie, a Native-American (Director of Multifamily Capital, Wells Fargo, San Francisco).
- Goodale, James C. "Only Nixon Harmed a Free Press More." The New York Times. May 21, 2013. Retrieved on June 23, 2013.
- Most Dangerous Man in America, documentary, (2009)
- Harrison Salisbury, Without Fear or Favor: An Uncompromising Look at the New York Times, (1980)
- John Prados & Margaret Pratt Porter, Inside the Pentagon Papers, (2004)
- David Rudenstine, The Day the Presses Stopped, (1996)
- Sanford Ungar, The Papers and the Papers, (1972)
- Henry Raymont, "Magazines' Files Under Subpoena, New York Times, February 1, 1970
- Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).
- “Branzburg v. Hayes and the Developing Qualified Privilege for Newsmen,” 26 Hastings Law Journal 709, 1975
- Martin Arnold, “Resignation Ends a Court Test on Disclosure of News Sources,” New York Times, October 12, 1973.
- George, Being George: George Plimpton’s Life, Nelson W. Alrich, (2008)
- Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996); Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994)