|
Appendix 2: Court
Records
Summary of
Court Proceedings
United States of
America v. New York Times Company
June 13,1971, The New York Times published the first article in
its series on the Pentagon study.
June 15, the Government obtained from the U.S. District Court
a temporary restraining order prohibiting The Times from publishing
further installments until a hearing on its motion for a preliminary
injunction against The Times could take place.
June 17-18, the hearings were held part in public and part in
camera (as were all hearings in both these cases) before the court.
June 19, the District Court released its decision to deny the motion
(pp. 665-672). The Government obtained a temporary stay of
the decision, continuing the prohibition, from the U.S. Court of
Appeals pending its appeal.
June 22, the appeal was argued before the full bench (eight
judges) of the Court of Appeals.
June 23, the Court of Appeals in a 5-3 decision ruled to continue
the stay and remanded the case to the District Court for further
hearings (p. 673).
The New York Times then petitioned the Supreme Court for certiorari
(to review the case). The petition was granted (No. 1873).
United States of America v. The Washington Post Company.
June 18, The Washington Post began its series on the Pentagon
study. The Government sought and was refused a temporary restraining
order from the U.S. District Court (pp. 674-675),
June 19, the Government petitioned the U.S. Court of Appeals,
who reversed the decision (in a 2-1 vote) and remanded the case to
the District Court for further hearings (pp. 675-680). The Post was
restrained from publishing.
June 21, after the hearings, the District Court ruled to deny the
Government's motion (pp. 680-683). The Government obtained a
temporary stay from the Court of Appeals pending its appeal.
June 23, the Court of Appeals, now in full bench (nine judges),
affirmed 7-2 the District Court's decision, but granted a stay pending
the Government's appeal to the Supreme Court (pp. 683-686).
The Government then petitioned for certiorari to the Supreme Court
which, after denying the Government's request for further in camera
proceedings, granted the petition (No. 1885). The case was then
merged with The New York Times case before the Supreme Court.
June 26, the Oral Arguments of the parties-The Times, the Government
and The Post-were heard before the Supreme Court (pp.
687-724).
June 30, the Supreme Court handed down its 6-3 decision to deny
any injunction against either newspaper (pp. 725-756).
664
UNITED STATES OF AMERICA, Plaintiff,
v.
NEW YORK TIMES COMPANY,
et ai, Defendants.
Decision of U.S. District Court,
Southern District of New York, 71 Civ. 2662
June 19,1971
On June 12, June 13 and June 14, 1971 the New York Times
published summaries and portions of the text of two documents certain
volumes from a 1968 Pentagon study relating to Vietnam
and a summary of a 1965 Defense Department study relating to
the Tonkin Gulf incident. The United States sues to enjoin the
Times from "further dissemination, disclosure or divulgence" of
materials contained in the 1968 study of the decision making process
with respect to Vietnam and the summary of the 1965 Tonkin Gulf
study. In its application for a temporary restraining order the
United States also asked the Court to order the Times to furnish
to the Court all the documents involved so that they could be impounded
pending a determination. On June 15 upon the argument
of the order to show cause the Court entered a temporary restraining
order against the New York Times in substance preventing the
further publication until a determination by the Court upon the
merits of the Government's application for a preliminary injunction.
The Court at that time, in the absence of any evidence, refused
to require the documents to be impounded.
The Government contends that the documents still unpublished
and the information in the possession of the Times involves a
serious breach of the security of the United States and that the further
publication will cause "irreparable injury to the national
defense."
The articles involved material that has been classified as Top
Secret and Secret, although the Government concedes that these
classifications are related to volumes rather than individual documents
and that included within the volumes may be documents
665
which should not be classified in such high categories. The documents
involved are a 47 volume study entitled "HISTORY OF
UNITED STATES DECISION MAKING PROCESS ON VIETNAM
POLICY" and a document entitled "THE COMMAND AND
CONTROL STUDY OF THE TONKIN GULF INCIDENT
DONE BY THE DEFENSE DEPARTMENT'S WEAPONS SYSTEM
EVALUATION GROUP IN 1965." There is no question
that the documents are in the possession of the Times.
The issue of fact with respect to national security was resolved
in the following manner. In view of the claim of the Government
that testimony in support of its claim that publication of the documents
would involve a serious security danger would in itself be
dangerous the Court determined that under the "Secrets of State"
doctrine an in camera proceeding should be held at which only the
attorneys for each side, witnesses for the Government and two
designated representatives of The New York Times would be present.
It was believed that this would enable the Government to
present its case forcefully and without restraint so that the
accommodation
of the national security interest with the rights of a free
press could be determined with no holds barred. It was with reluctance
that the Court granted a hearing from which the public
was excluded, but it seemed that there was no other way to serve
the needs of justice. My finding with respect to the testimony on
security will be adverted to below.
1. This case is one of first impression. In the researches of both
counsel and of the Court nobody has been able to find a case remotely
resembling this one-where a claim is made that national
security permits a prior restraint on the publication of a newspaper.
The Times in affidavits has indicated a number of situations in
which classified information has been "leaked" to the press without
adverse governmental or judicial action. It cites news stories and
the memoirs of public officials who have used (shortly after the
events) classified material in explaining their versions of the decision
making process. They point out that no action has ever been
taken against any such publication of "leaks." The Government on
the other hand points out that there has never been an attempt to
publish such a massive compilation of documents which is probably
unique in the history of "leaks." The Vietnam study had been
authorized by Secretary of Defense McNamara, continued under
Secretary Clifford and finally delivered to Secretary of Defense
Laird. The White House was not given a copy. The work was done
by a group of historians, including certain persons on contract with
the Government. It is actually called a "history." The documents
in the Vietnam study relate to the period from 1945 to early 1968.
There is no reference to any material subsequent to that date. The
Tonkin Gulf incident analysis was prepared in 1965, six years ago.
The Times contends that the material is historical and that the
circumstance that it involves the decision making procedures of the
Government is no different from the descriptions that have emerged
in the writings of diarists and memoirists. The Government on the
666
other hand contends that by reference to the totality of the studies
an enemy might learn something about United States methods
which he does not know, that references to past relationships with
foreign governments might affect the conduct of our relations in
the future and that the duty of public officials to advise their
superiors
frankly and freely in the decision making process would be
impeded if it was believed that newspapers could with impunity
publish such private information. These are indeed troublesome
questions.
This case, in the judgment of the Court, was brought by the
Government in absolute good faith to protect its security and not
as a means of suppressing dissident or contrary political opinion.
The issue is narrower-as to whether and to what degree the
alleged security of the United States may "chill" the right of
newspapers
to publish. That the attempt by the Government to restrain
the Times is not an act of attempted precensorship as such is also
made clear by the historic nature of the documents themselves. It
has been publicly stated that the present Administration had
adopted a new policy with respect to Vietnam. Prior policy must,
therefore, be considered as history rather than as an assertion of
present policy the implementation of which could be seriously
damaged by the publication of these documents.
2. The Times contends that the Government has no inherent
power to seek injunction against publication and that the power of
the Court to grant such an injunction can be derived only from a
statute. The Government has asserted a statutory authority for the
injunction, namely, the Act of June 25, 1948, c. 645, 62 Stat. 736;
Sept. 23, 1950, c. 1024, Tit. I, Sec. 18, 64 Stat. 1003 (18 U.S.C.
793). The Government contends moreover, that it has an inherent
right to protect itself in its vital functions and that hence an
injunction
will lie even in the absence of a specific statute.
There seems little doubt that the Government may ask a Federal
District Court for injunctive relief even in the absence of a specific
statute authorizing such relief.
The Supreme Court has held that "(o)ur decisions have established
the general rule that the United States may sue to protect its
interests . . . This rule is not necessarily inapplicable when the
particular governmental interest sought to be protected is expressed
in a statute carrying criminal penalties for its violation." Wyandotte
Co. v. U.S., 389 U.S. 191,201-2 (1967).
In recent times the United States has obtained an injunction
against the State of Alabama from enforcing the miscegenation
laws of that State. U.S. v. Brittain, 319 F. Supp. 1058, 1061. The
United States has been held entitled to restrain a collection of a tax
because "the interest of the national government in the proper
implementation
of its policies and programs involving the national
defense such as to vest in it the non-statutory right to maintain this
action." U.S. v. Arlington County, 326 F. 2d 929,232-33 (4th Cir.
1964). Recently in U.S. v. Brand Jewelers, Inc., 318 F. Supp. 1293,
1299, a decision by Judge Frankel of this Court collects the au-
667
thorities illustrating the various situations in which the classic case
of In re Debs, 158 U.S. 564 (1895) has been cited. Accordingly,
even in the absence of statute the Government's inherent right to
protect itself from breaches of security is clear.
That, however, is only the threshold question. Assuming the right
of the United States and, indeed, its duty in this case to attempt to
restrain the further publication of these documents, the Government
claims and the Times denies that there is any statute which
proscribes such publication. The argument requires an analysis of
the various sections (792-799) contained in Chapter 37 of Title 18
of the U.S. Criminal Code entitled "ESPIONAGE AND CENSORSHIP."
The statute seems to be divided into two parts. The first
which for lack of a better term may be considered simple espionage,
and the second, the publication of information. The Government
relies upon Section 793. There are two subsections concerning
which the question of interpretation has arisen. Subsection (d)
deals with persons with lawful possession-"whoever lawfully
having possession of any document, writing, code book, etc. . . .
relating to the national defense or information relating to the
national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the
advantage of any foreign nation ... " It seems clear that neither
the Times nor the Government now claim that subsection (d)
applies since it is fairly obvious that "lawful" possession means the
possession of Government officials or others who have authorized
possession of the documents. The Government, however, relies on
subsection (e) which reads as follows:
"(e) Whoever having unauthorized possession of, access
to, or control over any document, writing, code book, signal
book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to
the national defense, or information the possessor has reason
to believe could be used to the injury of the United States
or to the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver,
transmit or cause to be communicated, delivered, or
transmitted the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the
officer or employee of the United States entitled to receive
it; or"
It will be noted that the word "publication" does not appear in
this section. The Government contends that the word "communicates"
covers the publication by a newspaper of the material
interdicted by the subsection. A careful reading of the section would
indicate that this is truly an espionage section where what is
prohibited
is the secret or clandestine communication to a person not
entitled to receive it where the possessor has reason to believe that
it may be used to the injury of the United States or the advantage
668
of any foreign nation. This conclusion is fortified by the circumstance
that in other sections of Chapter 37 there is specific reference
to publication. The distinction is sharply made in Section 794
entitled "Gathering or Delivering Defense Information to Aid
Foreign Government." Subsection (a) deals with peace-time communication
of documents, writings, code books, etc. relating to
national defense. It does not use the word "publication." Subsection
(b) on the other hand which deals with "in time of war" does
punish anyone who "publishes" specific information "with respect
to the movement, numbers, description, condition or disposition
of any of the Armed Forces, ships, aircraft or war materials of the
United States or with respect to the plans or conduct, or supposed
plans or conduct of any naval or military operations, or with
respect to any works or measures undertaken for or connected with,
or intended for the fortification or defense of any place, or any
other information relating to the public defense, which might be
useful to the enemy ... "
Similarly, in Section 797 one who publishes photographs,
sketches, etc. of vital military and naval installations or equipment
is subject to punishment. And finally, in Section 798 which deals
with "Disclosure of Classified Information" there is a specific
prohibition
against one who "publishes" any classified information.
This classified information is limited to the nature, preparation, or
use of any code, cipher, or cryptographic system of the United
States or any foreign government; or the design, construction, use,
maintenance, or repair of any device, apparatus, or appliance used
or prepared or planned for use by the United States or any foreign
government for cryptographic or communication intelligence purposes;
or the communication intelligence activities of the United
States or any foreign government; or obtained by the processes of
communication intelligence from the communications of any foreign
government, knowing the same to have been obtained by such
processes.
The Government does not contend, nor do the facts indicate,
that the publication of the documents in question would disclose the
types of classified information specifically prohibited by the Congress.
Aside from the internal evidence of the language of the
various sections as indicating that newspapers were not intended by
Congress to come within the purview of Section 793, there is
Congressional
history to support the conclusion. Section 793 derives
from the original espionage act of 1917 (Act of June 15, 1917,
Chap. 30, Title I, Sections 1, 2, 4, 6, 40 Stat. 217, 218, 219). At
that time there was proposed in H.R. 291 a provision that "(d)uring
any national emergency resulting from a war to which the
United States is a party or from threat of such a war, the President
may, by proclamation, prohibit the publishing or communicating of, or
the attempting to publish or communicate any
information relating to the national defense, which in his judgment
is of such character that it is or might be useful to the enemy." This
provision for prior restraint on publication for security reasons
669
limited to war time or threat of war was voted down by the Congress.
In the debate Senator Ashhurst in a scholarly speech stated
the problem as follows:
"Freedom of the press means simply, solely, and only the
right to be free from a precensorship, the right to be free
from the restraints of a censor. In other words, under the
Constitution as amended by amendment No.1, 'freedom of
the press' means nothing except that the citizen is guaranteed
that he may publish whatever he sees fit and not be subjected
to pains and penalties because he did not consult the
censor before doing so." *
It would appear, therefore, that Congress recognizing the Constitutional
problems of the First Amendment with respect to free
press, refused to include a form of precensorship even in war time.
In 1957 the report of the United States Commission on Government
Security in urging further safeguards against publication
of matters affecting national security recognized that "any statute
designed to correct this difficulty must necessarily minimize
constitutional
objections by maintaining the proper balance between
the guarantee of the first amendment, on one hand, and required
measures to establish a needed safeguard against any real danger
to our national security." Report of the United States Commission
on Government Security 619-20 (1957).
Senator Cotton, a sponsor of the bill, recognized in debate that
"it should be made crystal clear that at the present time penalties
for disclosure of secret information can only be applied against
those employed by the Government. The recommendation extended
such control over those outside the Government." The bill proposed
was never passed. The significance lies, however, in the awareness
by the Congress of the problems of prior restraint and its determination
to reject them except in the limited cases involved in Section
794 and Section 798 involving codes, communication intelligence,
and the like.
The injunction sought by the Government must, therefore, rest
upon the premise that in the absence of statutory authority there
is inherent power in the Executive to protect the national security.
It was conceded at the argument that there is Constitutional power
to restrain serious security breaches vitally affecting the interests of
the Nation. This Court does not doubt the right of the Government
to injunctive relief against a newspaper that is about to publish
information or documents absolutely vital to current national
security. But it does not find that to be the case here. Nor does this
Court have to pass on the delicate question of the power of the
President in the absence of legislation to protect the functioning of
* The First Amendment reads: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the
people peacefully to assemble, and to petition the Government for a
redress of grievances."
670
his prerogatives-the conduct of foreign relations, the right to
impartial advice and military security, for the responsibility of
which the Executive is charged against private citizens who are not
Government officials. For I am constrained to find as a fact that the
in camera proceedings at which representatives of the Department
of State, Department of Defense and the Joint Chiefs of Staff
testified, did not convince this Court that the publication of these
historical documents would seriously breach the national security.
It is true, of course, that any breach of security will cause the
jitters
in the security agencies themselves and indeed in foreign governments
who deal with us. But to sustain a preliminary injunction the
Government would have to establish not only irreparable injury,
but also the probability of success in the litigation itself. It is true
that the Court has not been able to read through the many volumes
of documents in the history of Vietnam, but it did give the Government
an opportunity to pinpoint what it believed to be vital
breaches to our national security of sufficient impact to contravert
the right of a free press. Without revealing the content of the
testimony, suffice it to say that no cogent reasons were advanced
as to why these documents except in the general framework of
embarrassment previously mentioned, would vitally affect the security
of the Nation. In the light of such a finding the inquiry must
end. If the statute (18 U.S.c. 793) were applicable (which I must
assume as an alternative so that this decision may be reviewed by
an appellate court), it is doubtful that it could be applied to the
activities of the New York Times. For it would be necessary to
find as an element of the violation a willful belief that the
information
to be published "could be used to the injury of the United
States or to the advantage of any foreign nation." That this is an
essential element of the offense is clear. Gorin v. U.S., 312 U.S. 19
(1941).
I find that there is no reasonable likelihood of the Government
successfully proving that the actions of the Times were not in good
faith, nor is there irreparable injury to the Government. This has
been an effort on the part of the Times to vindicate the right of
the public to know. It is not a case involving an intent to communicate
vital secrets for the benefit of a foreign government or
to the detriment of the United States.
3. As a general matter we start with the proposition that prior
restraint on publication is unconstitutional. Near v. Minnesota, 283
U.S. 697 (1931). As the Supreme Court observed in Grosjean v.
American Press Co. Inc., 297 U.S. 233:
"The predominant purpose of the ... (First Amendment)
was to preserve an untrammeled press as a vital source of
public information. The newspapers, magazines and other
journals of the country, it is safe to say, have shed and continue
to shed, more light on the public and business affairs
of the nation than any other instrumentality of publicity;
and since informed public opinion is the most potent of all
671
restraints upon misgovernment, the suppression or abridgement
of the publicity afforded by a free press cannot be
regarded otherwise than with grave concern." (297 U.S.
at 250)
Yet the free press provision of the First Amendment is not
absolute. Near v. Minnesota, supra. In the Near case the Court
said that "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 or location of
troops." The illustrations accent how limited is the field of security
protection in the context of the compelling force of First Amendment
right. The First Amendment concept of a "free press" must
be read in the light of the struggle of free men against prior
restraint of publication. From the time of Blackstone it was a tenet
of the founding fathers that precensorship was the primary evil to
be dealt with in the First Amendment. Fortunately upon the facts
adduced in this case there is no sharp clash such as might have
appeared between the vital security interest of the Nation and the
compelling Constitutional doctrine against prior restraint. If there
be some embarrassment to the Government in security aspects as
remote as the general embarrassment that flows from any security
breach, we must learn to live with it. The security of the Nation
is not at the ramparts alone. Security also lies in the value of our
free institutions. A cantankerous press, an obstinate press, a
ubiquitous
press must be suffered by those in authority in order to preserve
the even greater values of freedom of expression and the
right of the people to know. In this case there has been no attempt
by the Government at political suppression. There has been no
attempt to stifle criticism. Yet in the last analysis it is not merely
the opinion of the editorial writer or of the columnist which is
protected by the First Amendment. It is the free flow of information
so that the public will be informed about the Government and its
actions.
These are troubled times. There is no greater safety valve for
discontent
and cynicism about the affairs of Government than freedom
of expression in any form. This has been the genius of our institutions
throughout our history. It is one of the marked traits of our
national life that distinguish us from other nations under different
forms of government.
For the reasons given the Court will not continue the restraining
order which expires today and will deny the application of the
Government for a preliminary injunction. The temporary restraining
order will continue, however, until such time during the day
as the Government may seek a stay from a Judge of the Court of
Appeals for the Second Circuit.
The foregoing shall constitute the Court's findings of fact and
conclusions of law under Rule 52(a) of the Federal Rules of Civil
Procedure.
(Gurjein, V.S.D. J.) So ordered.
672
Decision of U.S. Court of Appeals,
Second Circuit, Docket No. 71·1617
June 23,1971
PER CURIAM:
Upon consideration by the court ill bane, it is ordered that the
case be remanded to the District Court for further in camera proceedings
to determine, on or before July 3, 1971, whether disclosure
of any of those items specified in the Special Appendix filed with
this Court on June 21, 1971, or any of such additional items as
may be specified by the plaintiff with particularity on or before
June 25, 1971, pose such grave and immediate danger to the
security of the United States as to warrant their publication being
enjoined, and to act accordingly, subject to the condition that the
stay heretofore issued by this court, shall continue in effect until
June 25, 1971, at which time it shall be vacated except as to those
items which have been specified in the Special Appendix as so
supplemented and shall continue in effect as to such items until
disposition by the District Court.
(Firendly, Ch.J., Lumbard, Smith, Hay, Mansfield, Circuit Judges)
DISSENTING: Kaufman, Feinberg, Oakes, Circuit1udges.
We dissent and would vacate the stay and affirm the judgment
of the Court below.
673
UNITED STATES OF AMERICA, Plaintiff,
v.
THE WASHINGTON POST COMPANY,
et ai, Defendants.
Decision of U.S. District Court,
District of Columbia, 71 Civ. 1235
June 18, 1971
This morning the Washington Post, a paper of general circulation
in this city with correspondents throughout the country, published
an article based upon matters contained in a 47-volume
"top secret" publication prepared under the auspices of the Department
of Defense, reviewing various developments relating to the
Vietnam war over a period of some sixteen years prior to 1968.
The United States, through the Attorney General, seeks a temporary
restraining order prohibiting the Post from further publications
based on this data, which the Post contemplates making
in serial fashion continuing with tomorrow's morning edition which
goes to press at 9: 00 p.m., and subsequent editions. In a related
case, the New York Times, which was also publishing excerpts
from this material, has been temporarily enjoined until 1:00 p.m.
on Saturday, June 19, and proceedings are now in progress in the
Southern District of New York, in camera, to determine whether
or not a preliminary injunction shall issue against the Times.
The United States contends that the material contained in these
47 volumes is highly sensitive, as its "top secret" designation
indicates,
and asserts that the United States will be irreparably injured
in its conduct of the war and in its diplomatic relations by disclosures
which it has reason to believe are contemplated in the
subsequent Post articles. 18 U.S.C. § 793 provides for possible
criminal sanctions in these circumstances but Congress in that
statute did not authorize any injunctive action. Indeed, Congress
appears to have condemned any pre-existing restraint or censorship
of the press by the language of the Internal Security Act of 1950
(Sec. 1 (b», of which this statute is a part, and the Supreme
674
Court speaking through Chief Justice Hughes in Near V. Minnesota,
283 U.S. 697 (1931), has outlined the historic reasons supporting
the total freedom of the press to publish as guaranteed by the First
Amendment of the Constitution.
A temporary restraining order is designed to preserve the status
quo for a brief period until all of the issues can be fully developed.
It is a matter of discretion with a court whether such an order shall
issue. The Court has before it no precise information suggesting in
what respects, if any, the publication of this information will injure
the United States and must take cognizance of the fact that there
are apparently private parties in possession of this data which they
will continue to leak to other sources.
What is presented is a raw question of preserving the freedom
of the press as it confronts the efforts of the Government to impose
a prior restraint on publication of essentially historical data. The
information unquestionably will be embarrassing to the United
States, but there is no possible way after the most full and careful
hearing that a court would be able to determine the implications of
publication on the conduct of Government affairs or to weigh these
implications against the effects of withholding information from
the public. It is to be strongly regretted that the Post has been
unwilling to allow the court to pursue this matter over the next
two or three days and voluntarily to withhold publication. Unfortunate
as this may be, the Post's position does not obviate the
necessity for the Court to determine the law, particularly since
the Attorney General has stated he will pursue this action regardless
of what result is reached in the Times case.
The Post stands in serious jeopardy of criminal prosecution.
This is the only remedy our Constitution or the Congress has provided.
The Post will be allowed to publish and the request for a
temporary restraining order is denied.
The application of the American Civil Liberties Union to participate
in these proceedings as amicus is denied.
(Gesell, V.S.D.!.) So ordered.
Decision of U.S. Court of Appeals,
District of Columbia Circuit, Docket No. 71·1478
June 19,1971
PER CURIAM:
Very early this morning, we entered an order in this case summarily
reversing an order of the District Court denying appellant,
the Government, a temporary restraining order. We now summarize
the reasons for the action we deemed necessary in the unusual
circumstances
with which we were confronted.
Appellees, the Wash.ington Post Company and certain of its
officers, are in possession of portions of a 47-volume "top secret"
document known as the "History of U.S. Decision-Making Process
675
on Vietnam Policy." Yesterday they published information derived
from that document, and admittedly intend to publish more. The
Government filed in the District Court a complaint and affidavits
of responsible officials claiming that publication of material from
the document has prejudiced and will prejudice the conduct of the
Nation's military efforts and diplomatic relations, and will result in
irreparable harm to the national defense. Appellees claim that the
material is historical in character, that its publication therefore
cannot reasonably be expected to prejudice defense interests though
it may embarrass both governments and individuals, and that the
First Amendment protects their right to publish it.
About 8: 00 p.m. yesterday, the District Court denied the Government's
request for a temporary restraining order to prevent further
publication of this material by appellees. In its memorandum
opinion, the Court expressed the views that the Supreme Court's
opinion in Near v. Minnesota, 283 U.S. 697 (1931), supported total
freedom of the press, and that criminal sanctions were the Government's
only remedy for publication of classified information. The
court also said that it had no precise indication of how publication
of the material would injure the United States; it felt that other
parties may also have copies of the document and may divulge its
contents to other sources, so that judicial intervention might ulti·
mately be futile. The court was also concerned that even after a
full hearing, it might not be able to weigh the conflicting private,
public and governmental interests in secrecy and freedom of the
information.
We have concluded that the District Court's action was improper.
In the first place, freedom of the press, as important as it is, is not
boundless. The Near case relied on so heavily by the District Court
involved a broad scheme for injunctions against "obscene, lewd
and lascivious" or "malicious, scandalous and defamatory" publications.
In the Supreme Court's opinion, that scheme was clearly a
prior restraint on the press prohibited by the First Amendment.
But Near recognized a narrow area, embracing prominently the
national security, in which a prior restraint on publication might
be appropriate. See 283 U.S. at 715-16. We think the instant case
may lie within that area.
Second, the District Court placed questionable reliance on the
traditional rule that equity will not enjoin conduct amounting to
crime. The principle is a corollary of the more general principle
that equitable relief is inappropriate where there is an adequate
remedy at law. The Supreme Court has recognized exceptions to
the rule against injunctions to prevent crimes in cases where an
important public interest was threatened with irreparable harm.
See, e.g., Hecht Co. v. Bowles, 321 U.S. 321 (1944); In re Debs,
158 U.S. 564 (1895). Section l(b) of the Internal Security Act of
1950 indicates that the criminal sanctions the Act provides for
dissemination of classified information are not to be construed as
establishing military or civilian censorship. 64 Stat. 987; see 18
U.S.C. § 793 (1964). But it is hardly clear that Congress thereby
676
meant to foreclose all possible resort to injunctive relief to protect
such information in such exceptional circumstances as would
justify prior restraints under Near.
Thus we think the law permits an injunction against publication
of material vitally affecting the national security. In this case, the
Government makes precisely that claim-that publication by
appellees will irreparably harm the national defense. The District
Court nevertheless found that the Government had not advanced
even a basis for a temporary restraint to determine whether there
is any merit to its claim. Under the circumstances, we think that
the District Court erred in that ruling.
We are aware that the Government has not set forth particular
elements of prejudice to the national defense, and that the document
in question covered a period which ended over four years
ago: But we also recognize that the Government may not have
been able to make specific allegations without knowing precisely
what parts of the document are held by appellees, and that there
is an interest in avoiding disclosure of classified information even
in court where such disclosure is not crucial to the court's decision.
See United States v. Reynolds, 345 U.S. 1,8-10 (1953). The document
is admittedly a review of the conduct of military and diplomatic
affairs with respect to a war which continues into the present.
And the Government did present affidavits of officials in a position
to know what sort of harm might result from publication of
material derived from the document. These circumstances do not
provide a sufficient basis for determining, one way or the other,
whether all of the document is essentially historical in character
or whether any of it has a present impact on vital matters affecting
national security. We do not understand how it can be
determined without a hearing and without even a cursory examination
of the material that it is nothing but "historical data" without
present vitality.
While we are advertent to the heavy burden the Government
bears to demonstrate ample justification for any restraint on
publication,
we are unable to escape the conclusion that the denial of a
temporary restraining order may possibly threaten national security.
Judicial responsibility, in our view, cannot properly be discharged
without some inquiry into the matter. The Government does not
ask us to accept its allegations, but only to afford it an opportunity
to prove them. While appellees will be delayed by a grant of relief,
and while courts should always hesitate to restrain free expression,
the injury to appellees from a brief pause in publication is clearly
outweighed by the grave potentiality of injury to the national security.
Under these circumstances, we felt compelled to reverse the
decision of the District Court, and to restrain publication for the
shortest possible period consistent with an opportunity for the
Government to substantiate its claims at a hearing on its request
for a preliminary injunction.
(Robinson and Robb, Circuit Judges) Reversed.
677
DISSENTING: Wright, Circuit Judge
This is a sad day for America. Today, for the first time in the two
hundred years of our history, the executive department has succeeded
in stopping the presses. It has enlisted the judiciary in the
suppression of our most precious freedom. As if the long and
sordid war in Southeast Asia had not already done enough harm to
our people, it now is used to cut out the heart of our free institutions
and system of government. I decline to follow my colleagues
down this road and I must forcefully state my dissent.
The executive department has sought to impose a prior restraint
on publication of a series of articles by the Washington Post. The
district court refused to cooperate. Very basic constitutional
principles
support the district court's decision.
In Near v. Minnesota, 283 U.S. 713 (1931), Mor. Chief Justice
Hughes spoke for the Supreme Court and stated that imposition of
prior restraints upon publishing is "the essence of censorship." Id.
at 713. He quoted Blackstone, the father of our common law liberties,
and Madison, the father of our Constitution, to the effect
that prior restraints on speech and press constitute the most heinous
encroachment on our freedom. In the early days, Americans such
as Madison had hoped that their country would not follow the
repressive course of England. "Here, as Madison said, 'the great
and essential rights of the people are secured against legislative
as well as executive ambition. They are secured, not by laws
paramount to prerogative, but by constitutions paramount to laws.
This security of the freedom of the press requires that it should be
exempt not only from previous restraint by the Executive, but from
legislative restraint also.' " Id. at 714.
Under the First Amendment of our Constitution, prior restraints
upon speech and press are even more serious than subsequent punishment.
There is no question as to the extent of the deterrent
effect. A restraining order, imposed by a court, applies directly
against a particular individual or newspaper and carries very specific
and very severe penalties for contempt. It is imposed before
the speech at issue has even seen the light of day. As in this case,
it is imposed even before the judges have read the offending material-
imposed quite literally in the dark. The weapon of the
prior injunction is a weapon long unused, but potentially deadly.
It is said that a temporary restraining order suppresses free speech
only for a few days, and what is the hurry? That argument, in my
opinion, cheapens the First Amendment. All of the presumptions
must run in favor of free speech, not against it. It is the government,
not the newspapers, which should be asked, "what is the
hurry?"
Thus we arrive at the key issue here. The burden is on the government.
Clearly, there are some situations in which a prior restraint
on speech or press might conceivably be allowable. But
those situations are very exceptional and must be very convincingly
established by the party seeking an injunction. The Near
Court recognized as much and said:
678
the protection even as to previous restraint is not unlimited.
But the limitation has been recognized only in exceptional
cases: ... 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. On similar grounds, the primary
requirements of decency may be enforced against obscene
publications. The securing of the community life may be
protected against incitements to acts of violence and the
overthrow by force of orderly government. The constitutional
guaranty of free speech does not 'protect a man from
an injunction against uttering words that may have all the
effect of force.'
ld. at 716.
In this case, the executive department has made no alIegations to
say nothing of convincing showings-that troop movements or
recruitment are threatened. Neither obscenity nor overthrow of the
government is at issue. All that is at issue is what the district court
termed "essentially historical data." It is at least three years old
and as much as twenty years old. It records the plans and policies
of bygone days; it does not reveal the current plans of the present
administration which, by its own account, is pursuing a different
policy.
Since we are dealing with "essentially historical data," the executive
department has an even greater burden to suggest what
specific sort of harm may result from its publication. Yet it seeks
to suppress history solely on the basis of two very vague allegations:
(1) the data has been classified as "top secret," because (2)
the data is said to adversely affect our national security.
With the sweep of a rubber stamp labeled "top secret," the
executive department seeks to abridge the freedom of the press. It
has offered no more. We are asked to turn our backs on the First
Amendment simply because certain officials have labeled material
as unfit for the American people and the people of the world.
Surely, we must demand more. To allow a government to suppress
free speech simply through a system of bureaucratic classification
would selI our heritage far, far too cheaply.
It is said that it is better to rely on the judgment of our government
officials than upon the judgment of private citizens such as the
publishers of the Washington Post. Again, that misses the point.
The First Amendment is directed against one evil: suppression of
the speech of private citizens by government officials. It embodies
a healthy distrust of governmental censorship. More importantly,
it embodies a fundamental trust of individual Americans. Any
free system of government involves risks. But we in the United
States have chosen to rely in the end upon the judgment and true
patriotism of all the people, not only of the officials.
This case would seem to be a good illustration. As the district
court said, a detailed account of our initiation and prosecution of
the war in Vietnam "unquestionably will be embarrassing to the
679
United States." But that is due to the nature of the history, not to
the nature of the account. Surely, mere "embarrassment" is not
enough to defeat First Amendment rights. Indeed, it may be a
necessary part of democratic self-government. At a time when the
American people and their Congress are in the midst of a pitched
debate over the war, the history of the war, however disillusioning,
is crucial. The executive department, which brought us into the
war and which would be primarily "embarrassed" by publication
of the material in question, must not be allowed to bury that history
at such a time. Democracy works only when the people are informed.
Whatever temporary damage may come to the image of this
country at home and abroad from the historical revelations in
these Pentagon Papers is miniscule compared to the lack of faith
in our government engendered in our people from their suppression.
Suppression breeds suspicion and speculation. I suggest the
truth is not nearly so devastating as the speculation following
suppression. We are a mature people. We can stand the truth.
Thus, in my view, the government faces a very great burden of
justification in this case. It has sought to meet that burden with
general allegations about national security and "top secret"
classifications.
It suggests that it may have more specific allegations, but
refuses even to hint at them until we bend to its will and grant a
temporary restraining order. I refuse to act on such a basis. I believe
that the government has not met its burden-it has not even come
close. In that circumstance, I feel duty and honor bound to vote to
affirm the decision of the district court.
I respectfully dissent.
Decision of U.S. District Court,
District of Columbia, 71 Civ. 1235
June 21, 1911
THE COURT: The Washington Post has certain papers from
The History of United States Decision-Making Process on Vietnam
Policy, a forty-seven-volume document, which was given an
over-all Top Secret classification.
The United States Court of Appeals granted a temporary restraining
order against publication by the Post and directed that
this Court hold a hearing today and make a determination by
5 :00 p.m. with respect to the prayer of the United States for a
preliminary injunction against further publication. This Court
was directed by the Court of Appeals to determine whether publication
of material from this document would so prejudice the
defense interests of the United States or result in such irreparable
injury to the United States as would justify restraining the publication
thereof.
The role of quasi-censor thus imposed is not one that any District Judge
will welcome to have placed on him by an appellate
decision. It has been a doubly difficult role because the material
to be censored is unavailable for there is absolutely no indication
of what the Post actually will print and no standards have been
enunciated by the Court of Appeals to be applied in a situation
such as this, which is one of first impression.
Venturing onto this unfamiliar and uncongenial ground, the
Court has in public hearings and in the secret hearings that the
Court's directive necessarily required sought to carry out its
responsibilities.
Voluminous material was submitted in affidavit form, testimony
was taken from several witnesses at the session starting at 8: 00
a.m. today, and the parties were heard in brief oral argument at
conclusion.
The Court finds that the documents in question include material
in the public domain and other material that was Top Secret when
written long ago but not clearly shown to be such at the present
time. The Court further finds that publication of the documents
in the large may interfere with the ability of the Department of
State in the conduct of delicate negotiations now in process or
contemplated for the future, whether these negotiations involve
Southeast Asia or other areas of the world. This is not so much
because of anything in the documents, themselves, but rather results
from the fact that it will appear to foreign governments that
this Government is unable to prevent publication of actual Government
communications when a leak such as the present one occurs.
Many of these governments have different systems than our own
and can do this; and they censor.
The problem raised in this instance is particularly acute because
two major papers are involved and the volume of the material leaked
is great.
There has been some adverse reaction in certain foreign countries,
the degree and significance of which cannot now be measured
even by opinion testimony. No contemporary troop movements
are involved, nor is there any compromising of our intelligence.
On the other hand, it is apparent from detailed affidavits that
officials make use of classified data on frequent occasions in dealing
with the press and that this situation is not unusual except as
to the volume of papers involved.
The Court of Appeals apparently felt that the question of irreparable
injury should be considered; that is, that the Court
should weigh the equities of the situation in the traditional manner;
and this Court has attempted to do so. This requires a word
with respect to the classification process.
There is no showing that in this instance there was any effort
made by the Government to distinguish Top Secret and other
material, to separate the two, or, indeed, to make any effort once
the publication was completed, to determine the degree, the nature
or extent of the sensitivity which still existed in 1968 or for that
matter exists at the present time.
681
At the close of the argument today, the Government stated it
was engaged in declassifying some of the material and requested
time to complete this process with the thought that permission
would then perhaps be given to the Post to publish what is ultimately
declassified out of the whole.
The volumes stretch back over a period ,well into the early
forties. The criteria of Top Secret are clear; and the Government
has not presented, as it must on its burden, any showing that the
documents at the present time and in the present context are Top
Secret.
There is no proof that there will be a definite break in diplomatic
relations, that there will be an armed attack on the United
States, that there will be an armed attack on an ally, that there
will be a war, that there will be a compromise of military or
defense plans, a compromise of intelligence operations, or a compromise
of scientific and technological materials.
The Government has made a responsible and earnest appeal
demonstrating the many ways in which its efforts particularly in
diplomacy will not only be embarrassed but compromised or perhaps
thwarted. In considering irreparable injury to the United
States, however, it should be obvious that the interests of the
Government are inseparable from the public interest. These are
one and the same and the public interest makes an insistent plea
for publication. This was represented not only in the eloquent
statements of Congressman Eckhart, which the Court found persuasive,
speaking on behalf of amicus curiae, but it also is apparent
from the context in which this situation presents itself.
Equity deals with realities and not solely with abstract principles.
A wide-ranging, long-standing and often vitriolic debate has been
taking place in this country over the Vietnam conflict. The controversy
transcends party lines and there are many shades and
differences of opinion. Thus the publications enjoined by the
Court of Appeals concern an issue of paramount public importance,
affecting many aspects of Governmental action and existing
and future policy.
There has, moreover, been a growing antagonism between the
Executive branch and certain elements of the press. This has
serious implications for the stability of our democracy. Censorship
at this stage raises doubts and rumors that feed the fires of
distrust.
Our democracy depends for its future on the informed will of
the majority, and it is the purpose and effect of the First Amendment
to expose to the public the maximum amount of information
on which sound judgment can be made by the electorate. The
equities favor disclosure, not suppression. No one can measure
the effects of even a momentary delay.
Given these circumstances, the Court finds it is still in the same
position that it was in when it denied the request for a temporary
restraining order. There is presented the raw question of a conflict
between the First Amendment and the genuine deep concern of
682
responsible officials in our Government as to implications both
immediate and long-range of this breach of confidentiality.
In interpreting the First Amendment, there is no basis upon
which the Court may adjust it to accommodate the desires of
foreign governments dealing with our diplomats, nor does the
First Amendment guarantee our diplomats that they can be protected
against either responsible or irresponsible reporting.
The First Amendment in this case prohibits a prior restraint on
publication. Accordingly, on the issue of likely success on the
merits which is presented in any preliminary injunction application,
the Court has concluded there is no likelihood of success.
There is not here a showing of an immediate grave threat to
the national security which in close and narrowly-defined circumstances
would justify prior restraint on publication.
The Government has failed to meet its burden and without
that burden being met, the First Amendment remains supreme.
Any effort to preserve the status quo under these circumstances
would be contrary to the public interest. Accordingly, the Government's
prayer for a preliminary injunction is denied.
I have signed an order to that effect in order to facilitate appeal
by the United States. I will state now on the record that the Court
will not under any circumstances grant a stay.
You may file this.
I wish to again thank couns6l in the case.
MR. MARONEY: Would Your Honor grant us a stay of the
order dissolving the restraining order to permit us time to go to
the Court of Appeals?
THE COURT: I will not grant any stay. You have twenty
minutes. I am sure they are waiting for you upstairs.
(Gesell, V.S.D.J.)
Decision of U.S. Court of Appeals,
District of Columbia Circuit, Docket No. 71-1478
June 23, 197/
PER CURIAM:
This is an appeal by the United States from an order of the district
court denying a preliminary injunction against the publication of
material derived from a document entitled "History of U.S. Decision-
Making Process on Vietnam Policy." We affirm the district
court.
The district court denied the preliminary injunction after a
hearing. By affidavits and the testimony of witnesses at the hearing
the government attempted to demonstrate that the publication of
the material in question should be restrained because it would
gravely prejudice the defense interests of the United States or result
in irreparable injury to the United States. The district court found
that the government failed to sustain its burden. Specifically, the
683
district court directed the government to present any document
from the "History" the disclosure of which in the government's
judgment would irreparably harm the United States. The government's
affidavits and testimony, presented largely in camera, discussed
several of the documents. The district court found either
that disclosure of those specific documents would not be harmful
or that any harm resulting from disclosure would be insufficient
to over-ride First Amendment interests. Having examined the
record made before the district court we agree with its conclusion.
In our opinion the government's proof, judged by the standard
suggested in Near v. Minnesota, 283 U.S. 697, 716 (1931), does
not justify an injunction.
The vitality of the principle, that any prior restraint on publication
comes into court under a heavy presumption against its constitutional
validity, was recognized by the Supreme Court of the
United States as recently as May 17, 1971. Organization for a
Better Austin v. Keefe, No. 135, October Term 1970, 39 L.W.
4577.
Our conclusion to affirm the denial of injunctive relief is fortified
by the consideration that the massive character of the "leak" which
has occurred, and the disclosures already made by several newspapers,
raise substantial doubt that effective relief of the kind
sought by the government can be provided by the judiciary.
The government has requested a stay in order that it may
present this matter to the Supreme Court of the United States.
Accordingly, the stay previously entered is continued until 6:00
P.M., Friday, June 25,1971.
(Bazelon, Ch.J., Wright, McGowan, Tamm, Leventhal, Robinson,
Robb, Circuit Judges) A !firmed.
DISSENTING: MacKinnon and Wilkey, Circuit Judges.
MacKinnon, Circuit Judge: It is unfortunate that this case comes
to us on a blind record in which the actual documents in the
possession of the newspaper are not before us. Our ability to deal
effectively with the problem is also currently complicated today by
the release of the entire 47 volumes to Congress where the problem
of disclosure may be compounded. This and the widespread disclosure
heretofore made, would minimize the value of any restraining
order. However, by agreement of the parties some of the documents
will be protected, and an examination of some of the other
documents convinces me that we should not entirely abdicate our
responsibility to protect the security of our nation's military and
diplomatic activities even though the ability of any court to act
effectively is greatly impaired by the present climate of disclosure.
Since we must pass on some phases of the matter, at the very
least I would remand to the District Court for a more precise
ruling by the trial court as to several specific documents. I would
not reward the theft of these documents by a complete declassification.
There is a regular method by which access to classified
information can be accomplished and in my view the prescribed
684
method should be followed in this as in other instances. As this
case well illustrates, courts are not designed to deal adequately
with national defense and foreign policy. Epstein v. Resor, 421
F.2d 930,933 (9th Cir.), cert[iorari] denied, 398 U.S. 965 (1970).
Wilkey, Circuit Judge: I would affirm the action of the trial court
in not restraining the publication of the vast majority of these
documents,
but I must dissent from the blanket, total affirmance of the
trial court's action, without a remand for a particularized finding
as to the likelihood of harm resulting from the publication of certain
specific papers.
We all take pride in freedom of speech and the press as one of
the true glories of our form of government, perhaps most eloquently
apotheosized by Judge Learned Hand, "To many this is,
and always will be, folly; but we have staked upon it our all." 1
This sets an ideal reference point, but Judge Hand, when he
uttered those words, was not adjudicating this particular case. Of
more relevance to the case at bar are the words of Justice Holmes:
"The character of every act depends upon the circumstances in
which it is done .... The question in every case is whether the
words used are used in such circumstances and of such a nature
as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree." 2 To which Justice Frankfurter
added: "Free speech is not so absolute or irrational a conception
as to imply paralysis of the means for effective protection of all the
freedoms secured by the Bill of Rights." 3
In the desire to minimize the prior restraint of publication required
in the stay Orders, the compression of time severely handicapped
the parties, the trial court and this court in focusing on the
few specific documents whose publication presently constitute a
clear danger. The Government did not know which documents out
of the 47 volumes the Post had in its possession until a partial list
was furnished the night before the second hearing before the trial
court, a supplemental list was furnished in the middle of the hearing,
and not until the Government had time to check the Post
description of each document against the 47 volumes was the
Government in a position to say whether in its opinion publication
would be dangerous or not. The obvious clarifying solution of the
Post physically producing the documents in its possession was
barred by the Post's objection, sustained by the trial court, that its
source would be revealed.
In this state of affairs the Government necessarily relied on affidavits
couched in general terms, two dated before and one on the
day of the hearing. These and the cross-examination of two
affiants on the material in the affidavits did not satisfy the trial
court with the requisite specificity as to the clear danger that
1 United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.
1943) .
2 Schenck v. United States, 249 U.S. 47, 52 (1919).
3 Bridges v. California, 314 U.S. 252,282 (1941).
685
publication of any single document presently represented. On this
state of the record the court here sustains the trial court, saying
that the Government did not sustain its admittedly heavy burden
of proof to justify a prior restraint on publication.
We have not been furnished any of the original documents. But
on careful detailed study of the affidavits in evidence, I find a
number of examples of documents which, if in the possession of
the Post and if published, could clearly result in great harm to
the nation. When I say "harm," I mean the death of soldiers, the
destruction of alliances, the greatly increased difficulty of
negotiation
with our enemies, the inability of our diplomats to negotiate
as honest brokers between would-be belligerents.
The court's opinion relies upon the standard of Near v. Minnesota
in regard to prior restraint. So do I. Near cites "the publication
of sailing dates of transports or the number and location of
troops" 4 as obvious examples where prior restraint of publication
would be justified. In the affidavit evidence before the trial court
and this court there are examples cited which meet this standard.
There appears to be a clear and present danger of military casualties
enhanced. There are numerous examples of the likely destruction
of our diplomatic efforts, and this should not be put on a
lower scale than immediate prospective military losses. Only those
who think of the settlement of international disputes by sheer
military power would derogate the importance of diplomatic
negotiations as our first line of defense. It is literally true that
when diplomacy fails lives are lost.
Of course the great bulk of these documents probably may be
characterized as only embarrassing, some not even that, and are
ready for study by journalists, historians and the public: the
public should have them. Yet the small percentage which appear
dangerous could be grievously harmful to this country.
Since neither we nor the trial court had before it the individual
documents, and the trial court dealt only in generalities, because
that was necessarily the Government's case, I would remand this
case to the trial court for the Government, first, now that it has
the Post complete list and has had the time to check the list against
the 47 volumes, to say which documents it objects to having
published. This, in my judgment, will immediately release the great
bulk of these for publication. (If it doesn't, the Government is
relying on the wrong standard.) Next, the Government can pinpoint
its objections to each of the remaining documents. On the
basis of what we heard in oral argument, the Post might agree
that some would not be published, leaving a remainder on which it
differs with the Government. On the remainder the trial court can
then rule, applying the Near standard, but this time knowing to
which specific document the standard is to be applied.
4 Near v. Minnesota, 283 U.S. 697, 716 (1930).
686
SUPREME COURT OF THE UNITED STATES
No. 1873-New York Times Company, Petitioner,
v.
United States.
No. 1885-United States, Petitioner,
v.
The Washington Post Company, et al.
Oral Argument
June 26, 1971
Proceedings
Mr. Chief Justice Burger: We will hear arguments in Nos. 1873
and 1885, The New York Times against the United States, and
United States against Washington Post Company.
Mr. Solicitor General, the Government's motion to conduct part
of the oral arguments involving security matters in camera, as has
been done in the District Courts in New York and Washington, and
in the Courts of Appeals in the Second Circuit and the District of
Columbia Circuit is denied by the court. Mr. Justice Harlan, Mr.
Justice Blackmun and I would grant a limited in camera argument,
as has been done in all of the hearings in these cases until now.
Under the order granting the writ yesterday, counsel may, if
they wish, submit arguments in writing under seal in lieu of the in
camera oral argument.
Mr. Solicitor General, you may proceed.
Oral Argument by the Solicitor General
on Behalf of Petitioner
(The United States Government)
The Solicitor General: Mr. Chief Justice, may 1 say in respect
of the announcement just made that all three parties have filed a
closed brief as well as the open brief, and in addition, I have filed
just within minutes two statements, one prepared by the State Department
and one prepared by the Department of Defense, giving
more detail about some of the items which are discussed in my
closed brief. I believe that those will all be before the Court.
Chief Justice Burger:
Q. Are you suggesting that these matters last filed are security
matters, or they merely supplement?
A. The only ones that are security matters that I have filed are
all marked "Top Secret."
687
Q. Thank you very much. I just wanted to be sure as to these last
documents.
A. The items filed by The Post and The Times I do not believe
are marked "Top Secret," but they are marked "In Camera" in
the caption of the items. I repeat, all three have also filed regular
briefs, except not printed. Only the American Civil Liberties Union
seemed to have the resources to produce the printed brief for this
occasion.
I am told that the law students of today are indignantly opposed
to final examinations because they say that no lawyer ever has to
work under such pressure that he has to get things out in three or
four hours. I can only say that I think it is perhaps fortunate that
Mr. Glendon and Mr. Bickel and I went to law school under an
earlier dispensation.
It is important, I think, to get this case in perspective. The case
of course raises important and difficult problems about the
Constitutional
right of free speech and of the free press. We have heard
much about that from the press in the last two weeks. But it also
raises important questions of the equally fundamental and important
right of the Government to function. Great emphasis has
been put on the First Amendment, and rightly so, but there is also
involved here a fundamental question of separation of powers in
the sense of the power and authority which the Constitution allocates
to the President as chief executive and as Commander-in-Chief of the
Army and Navy.
Involved in that there is also the question of the integrity of the
institution of the Presidency, whether that institution, one of the
three great powers under the separation of powers, can function
effectively.
The problem lies on a wide spectrum, and like all questions of
Constitutional law involves the resolution of competing principles.
In the first place, it seems to me that it will be helpful to make
some preliminary observations. If we start out with the assumption
that never under any circumstances can the press be subjected to
prior restraint, never under any circumstances can the press be
enjoined from publication, of course we come out with the conclusion
that there can be no injunction here. But I suggest, not as
necessarily conclusive in this case, but I suggest that there is no
such Constitutional rule, and never has been such a Constitutional
rule.
We have, for example, the copyright laws. My son was in Toronto
earlier this week and he sent me copies of The Globe and
Mail of Toronto, ten series of the story the Pentagon is trying to
kill, each one headed "Copyright New York Times Service." I have
no objection to that, but these stories which have been published
have been copyrighted by The New York Times and I believe by
The Washington Post, and I have no doubt that perhaps in other
cases, because these have already attracted much attention, The
New York Times and The Washington Post would seek to enforce
their copyright. I suppose it is very likely that in one form or another
they have obtained royalties because of their copyright on
this matter.
But let us also consider other fields of the law. There is a well
known branch of the law that goes under the heading of literary
property. In the Court of Appeals I gave the example of a manuscript
written by Ernest Hemingway, let us assume while he was still
living, unpublished, perhaps incomplete, subject to revision. In some
way the press gets hold of it. Perhaps it is stolen. Perhaps it is
bought
from a secretary through breach of fiduciary responsibility, or
perhaps it is found on the sidewalk. If The New York Times
sought to print that, I have no doubt that Mr. Hemingway or now
his heirs, next of kin, could obtain from the courts an injunction
against the press printing it. Only this morning I see in the paper
that a New York publisher is bringing a suit against Newsday, a
New York newspaper, because Newsday has violated what the
New York publisher considers to be its copyright in the forthcoming
memoirs of President Johnson.
Next, we have a whole series of law, a traditional branch of
equity, involving participation in a breach of trust. There cannot
be the slightest doubt, it seems to me, no matter what the motive,
no matter what the justification, that both The New York Times
and The Washingon Post are here consciously and intentionally
participating in a breach of trust. They know that this material is
not theirs. They do not own it. I am not talking about the pieces
of paper which they may have acquired. I am talking about the
literary property, the concatenation of words, which is protected
by the law of literary property. Again I say I don't regard this as
controlling or conclusive in this case. I am simply trying to advance
the proposition that there are many factors and many facets
here, and that there is no Constitutional rule that there can never
be prior restraint on the press or on free speech.
Now, in our main brief in this case which I may say was largely
prepared by my associate, Mr. Friedman, last evening and last
night, we have cited one case which comes very close to being an
injunction by this Court against publications in the press. That is
The Associated Press case in I believe 215 United States. The Associated
Press is a cooperative of newspapers, and there The Associated
Press sought and obtained an injunction against the
'dissemination of news by its competitor International Press, and
that was granted on copyright and related grounds.
But we have other areas in the law where this court has approved
against specific First Amendment claims injunctions in
advance forbidding speech. One area of this is the labor law field,
where as recently as 395 U.S. in Sinclair against the National Labor
Relations Board, the Court unanimously affirmed the judgment of
ttte Court of Appeals enforcing the board's order, which included
a provision requiring Sinclair to cease and desist from threatening
the employees with the possible closing of the plant or the transfer
of the weaving production with the attendant loss of employment,
689
or with any other economic reprisals if they were to select the
above named or any other labor organization.
In 393 U.S., a case involving the Federal Trade Commission,
the Federal Trade Commission against the Texaco, Inc., involving
orders with respect to TBC, tires, batteries and accessories, the
Court approved the order of the Federal Trade Commission which
restrained Texaco from using or attempting to use any device such
as, but not limited to, dealer discussions. They were ordered not
to speak to dealers about this subject, and the First Amendment
was specifically referred to in the brief for the respondent, and was
not mentioned in this Court's opinion.
Justice Stewart:
Q. Mr. Solicitor General, of course, The Times in this case, and
there are no doubt others, I did not understand your brother counsel
on the other side really questioned any of this. I thought at least for
purposes of this case they conceded that an injunction would be
not violative of the First Amendment, or put it this way, that
despite the First Amendment, an injunction would be permissible
in this case if the disclosure of this material would in fact pose a
grave and immediate danger to the security of the United States,
that is, for purposes of this case they conceded that, but they
have said that in fact disclosure of this material would not pose
any such grave and immediate danger.
A. Mr. Justice, if they have conceded it, I am glad to proceed
on that basis.
Q. I am not conceding it for them, but that has been my understanding
of what the issue is.
A. I may say that their briefs were served on me within the last
hour, which was entirely in accordance with this Court's order,
but I have not seen their briefs. I do not know what is in their
briefs.
Q. In other words, I had thought in my analysis and I have not
had the benefit of much more time than you have had, that this
basically came down to a fact case, that the issues here are factual
issues.
A. And that, Mr. Justice, is extremely difficult to--
Q. To argue here in this Court, I understand.
A. In open court.
Justice Harlan:
Q. I was going to say, qualifying that, except as to the scope of
the judicial review of the executive determination, which I thought
you presented.
A. Mr. Justice, it was the latter point for which I was seeking
to get this, because our contention, particularly with respect to
The Washington Post case is that the wrong standard has been
used.
Now, with respect to the actual factual situations, the only thing
I can do is point to the close brief, which I have filed, in which
there are 10 specific items referred to. When I say specific items, I
must make myself very clear. Some of those are collective. I have
690
brought here, and perhaps you cannot see them, the 47 volumes
that are supposed to be the background of this. They are included
in the record of the Second Circuit Court of Appeals which has
been filed with the Court. Let me say when we move onto this
next item that it was inevitable that I delegate the question of
preparing the supplemental statement which was covered by this
Court's order yesterday. This Court, as did the Second Circuit,
referred to the materials specified in the special appendix in the
Second Circuit, and to such additional items as might be included
on a supplemental statement filed at 5 P.M. yesterday. I had nothing
to do with preparing that supplemental statement. I had able and
conscientious associates who did work on it. However, when I
had a chance to see it last evening, particularly after the State
Department called me at 8 or 9 o'clock at night and said they had
four additional items, I said that the Court's deadline was 5 P.M.
and that I could not add any additional items, then I examined it.
Here is a copy of it. I find it much too broad. In particular it has
at the end a statement in view of the uncertainties as to the precise
documents in defendants' custody, and I say that has been an extreme
difficulty in this matter-we do not know now, and never
have known what the papers are.
Chief Justice Burger:
Q. I thought The New York Times was required to and did
give you a list of what they had.
A. They prepared an inventory, but from it, it is not possible to
tell whether they are the same papers that we have. Part of the
problem here is that a great mass of this material is not included
in the 47 volumes. It is background material, earlier drafts of some
papers which are materially different from what is included in the
47 volumes, and as a result we cannot tell from the inventory what
is included. For example, one of the items already published,
which has caused a certain amount of controversy publicly and
internationally, is a telegram to the Canadian Government. That is
not in the 47 volumes and is not referred to in the 47 volumes.
Where they got it, how they got it, what it is, I do not know. But
in this supplemental memorandum, it is stated under my signature
that the petitioner specifies in addition to the foregoing any
information
relating to the following, and then there are listed 13
items. Frankly I regard that as much too broad.
Therefore, I am saying here that we rely with respect to his
factual question only on the items specified in the supplemental
appendix filed in the Second Circuit and on such additional items
as are covered in my closed brief in this case.
Justice White:
Q. Mr. Solicitor General, does your closed brief cover all of the
items on the special appendix and any that you think should be
added to it?
A. No, Mr. Justice, it does not refer to all of them. What I
tried to do in my closed brief, I spent all of yesterday afternoon
in constant successive conversations with the individuals from the
691
State Department, the Defense Department, the National Security
Agency, and I said, "Look, tell me what are the worst, tell me
what are the things that really make trouble." They told me and
I made longhand notes of what they told me. From that I prepared
the closed brief.
Q. Well, Mr. Solicitor General, if we disagreed with you on
those that you have covered, the remainder of the items need not
be looked at?
A. Mr. Justice, I think that the odds are strong that that is an
accurate statement. I must say that I have not examined everyone
of the remainder of the items.
Q. Are you making an argument that even if those 10 that you
have covered do not move us very far that nevertheless the cumulative
impact of all of the others might tip the scale?
A. And that there ought to be an opportunity for a full and
free judicial consideration of each of the items covered in the
supplemental appendix. It is perfectly true that there was a trial
before Judge Gesell in the District Court of the United States. I
referred to it in my closed brief as "hastily conducted" and have
said that there was no trace of criticism in that. Judge Gesell
started the trial at 8 o'clock last Monday morning, and was under
orders from the Court of Appeals to have his decision made by
5 P.M., and there are 47 volumes of material, and millions of
words. There are people in various agencies of the Government
who have to be consulted, and Mr. Glendon quite appropriately
conducted cross examination which took time. Much of the material
had to be presented by affidavits, and there simply has not
been a full careful consideration of this material. To the best of
my knowledge, based on what was told me yesterday afternoon
by the concerned persons, the 10 items in my closed brief are the
ones on which we most rely, but I have not seen a great many of
the other items in the special appendix simply for sheer lack of
time.
Whitney North Seymour, United States Attorney:
Q. What was the length of the trial before Judge Gurfein in
New York?
A. Mr. Seymour?
A. The in camera proceedings, your honor, were approximately
four hours, including cross examination and argument.
Justice Harlan:
Q. What was the length of the hearing in the Court of Appeals
for the Second Circuit?
A. The total argument there, public and in camera, was just
over three hours. The in camera portion I would guess was about
an hour.
Q. Decisions were rendered in the New York case by the District
Court within two days afterwards.
A. Within less than 24 hours after, your honor. The hearing
finally finished at 10:45 P.M., on Friday night. Decision was
rendered at 2:25 P.M., Saturday afternoon.
692
Q. What was the time interval in the decision by the Court of
Appeals?
A. I believe it went one full day, that is, the decision was rendered
late on the day of the 23d. The argument was finished shortly
after five on the 22d.
Q. And in the District of Columbia proceedings, of course you
do not know, but perhaps the Solicitor General does.
A. The trial in the District of Columbia occurred between 8 A.M.
and 5 P.M., including the decision last Monday. I participated in
the oral argument in the Court of Appeals, and it occupied two
hours and a half, two hours and 45 minutes. It started at about
2: 15 and was over I think just before 5.
That is the entire amount of judicial time which has been devoted
to millions of words.
Justice White:
Q. Mr. Solicitor General, I don't want to bring in a red herring
in this case, or what might be, but do you also say that the 10
items you have talked about fully justify the classification that has
been given them and which still remains on them?
A. Mr. Justice, I am not sure whether this case turns on classification.
Justice White:
Q. I agree it probably does not.
A. No judicial proceeding has been brought under the Freedom
of Information Act by either newspaper. There is provision there
for starting a proceeding in court in case materials are wrongly
determined. No judicial determination has been made that any
classification was arbitrary or capricious. There is a complication
here which people who live with become familiar with, which is
that any compilation takes the classification of the highest classified
item.
Justice White:
Q. I understand that, but on those 10 documents I won't press
you any more. You think it perhaps need not be answered in this
case, and is perhaps irrelevant, is that correct?
A. I think it need not be answered, but my position would be
that as to those 10 items, it is more than 10 documents, as to those
10 items, that they are properly classified "Top Secret." One of
the items, I should make plain, is four volumes of the 47 volumes,
four related volumes, all dealing with one specific subject, the
broaching of which to the entire world at this time would be of
extraordinary seriousness to the security of the United States. As
I say, that is covered in my closed brief, and I am not free to say
more about it.
Justice Stewart:
Q. As I understand it, Mr. Solicitor General, and you tell me,
please, if I misunderstand it, your case does not really depend
upon the classification of this material, whether it is .classified or
how it is classified. In other words, if The New York Times and
The Washington Post had this material as a result of the indiscretion or
irresponsibility of an Under Secretary of Defense who
took it upon himself to declassify all of this material and give it
to the paper, you would still be here.
A. I would still be here. It will be one string off my bow.
Q. I did not understand it was a real string on your bow. That
is why I am asking you the question.
A. Maybe it is not, but there are those who think it is, and I
must be careful not to concede away in this court grounds which
some responsible officers of the Government think are important.
Q. Secondly, I understand, and tell me if I am wrong again,
that your case really does not depend upon any assertion of property
rights, by analogy to the copyright law. Your case would be
the same if The New York Times had acquired this information by
sending one of its employees to steal it, as it would if it had been
presented to The New York Times on a silver platter by an agent
of the Government. Am I correct?
A. Yes, Mr. Justice, but I don't think that literary property is
wholly irrelevant here. But my case does not depend upon it.
Q. Your case depends upon the claim, as I understand it, that
the disclosure of this information would result in an immediate
grave threat to the security of the United States of America.
A. Yes, Mr. Justice.
Q. However it was acquired, and however it was classified.
A. Yes, Mr. Justice, but I think the fact that it was obviously
acquired improperly is not irrelevant in the consideration of that
question. I repeat, obviously acquired improperly.
Justice Brennan:
Q. May I ask, Mr. Solicitor General, am I correct that the injunction
so far granted against The Times and The Post have not
stopped other newspapers from publishing materials based on this
study or kindred paper?
A. It is my understanding, Mr. Justice, though I have not had an
opportunity to read everything that has been published in other
newspapers, it my understanding that except with respect to the
items in The New York Times, The Washington Post and The
Boston Globe, there has not been published anything else which
is not covered by material already published either in this series,
or elsewhere. It would appear to us that other papers sought to
get into the act, and they have assigned their writers to write what
they can, but we have not been able to find new disclosures of
previously unpublished material in these other articles.
Q. Then are you suggesting that these other newspapers do not
in fact have either this study or access to the study or parts of it?
A. Mr. Justice, I do not know. I have no information whatever.
Q. But you are not telling us that they do not.
A. No.
Q. There is the possibility that they do have either the study, the
same thing The Post and Times have.
A. There is the possibility that anybody has it.
Q. But if that were the fact, I have always thought the rule
694
was that equity has to be rather careful not to issue ineffective
injunctions.
Isn't that a factor to be considered in these cases?
A. No, I appreciate that. I am trying to say that on the basis of
the information now known, this is not that situation. I repeat, I
have not read these other articles. I am advised by people who have
that they do not contain new disclosures, that they are-it has now
become fashionable and popular, and you are not a good newspaper
unless you have got some of this stuff, and they have put
out articles with all kinds of window-dressing, probably very well
written, but not containing new disclosures. I am not able to
testify to that, and I cannot point to anything in the record which
supports that. Certainly we are concerned about the problem of
the effectiveness of any order which might be issued here.
Q. I gather you do agree that the ordinary equitable principle
is not to issue useless injunctions, is it not?
A. Not to issue a useless injunction, and it is our position that
there is nothing in this record or known outside the record which
would indicate that this injunction would be useless.
Justice Blackmun:
Q. Mr. Solicitor General, one detail in that connection. Is there
anything in the record, or any intimation anywhere, that the possession
by the other newspapers is attributable to The New York
Times or to The Washington Post?
A. No, Mr. Justice. We do not know what they have or how
they got it. That is equally true with The New York Times and
The Washington Post.
Justice Blackmun:
Q. Have either of these newspapers denied it?
A. Denied that-
Q. That the possession on the part of the other newspapers is
not attributable to them?
A. I don't know. I don't believe that has been an issue in The
Washington Post case. Mr. Seymour advises me there was nothing
like that in The New York Times case.
Q. Mr. Solicitor General, in terms of equity on an injunction,
however, to the extent anything has been published and has already
been revealed, the United States is not seeking an injunction
against further publication of that particular item.
A. No, Mr. Justice, I think at that point we would agree that it
becomes futile. It is useless.
Q. Would that mean, Mr. Solicitor General, that if the Government
were to prevail here, and that at some time some document
within the scope of the injunction that the Government got was
published in some other newspaper, that then either The Times or
The Post could run it and to that extent then get the injunction
modified?
A. I would think so, Mr. Justice.
Q. But that is the only thing they could do, is that it?
A. I would think so, yes. I may say that it was stated in both
lower courts, in New York by Mr. Seymour and here by me, that
695
the President last January directed a complete review of classification
of all materials. Several Secretaries of State, Defense, and the
Chairman of the Joint Chiefs of Staff authorized us then to say
that they are prepared to appoint immediately a joint task force to
conduct an exhaustive declassification study of the 47 volumes,
that they will conduct the study on an expedited basis, and will
complete it within any reasonable time that the court may choose.
They suggest a minimum of 15 days. Upon completion of the
study, the Government will withdraw its objection to the publication
of any documents which it has found no longer are relevant
to the national security.
Justice Brennan:
Q. Mr. Solicitor General, is the United States pressing separately
your request of your cause of action for the return of the materials,
wholly aside from injunction against publication?
A. It is not involved in this case in this court at this time.
Q. It is not?
A. No.
Q. But is the Government trying to get these materials back
from The Times or The Post?
A. I can certainly say the Government would like to get them
back.
Q. That was not my question. My question is is the Government
attempting to?
A. The Government is not at this time seeking an order for
their return.
Q. I thought that was part of your lawsuit, part of your request
for relief.
A. I believe it was, but we did not appeal with respect to that,
nor is it covered in our petition for certiorari. Is that not right?
Q. That is correct.
Justice Marshall:
Q. Mr. Solicitor General, on this 45-day study, does that depend
on how we rule in this case, or is the Government going to do it
anyhow?
A. Mr. Justice, I will urge the Government to do it anyhow.
Q. Well, are they?
A. First, if this Court does not allow any injunction, it will be
futile, because the material will be published, and there will not
be any particular advantage to have a post mortem to say, "Oh,
well, it was all right anyhow."
Q. Suppose the Court decides the other way. Will the study be
made?
A. The study is going to be made. I will do my best to see that
the study is made, and I believe I have the full support of the
entire Administration with respect to that.
Q. Would it not be important without this case that the Government
has a right to find out what is available to be published?
Is that not part of their job?
A. It is a massive operation. There is not the slightest doubt
696
in my mind that there has been as long as I can remember, which
is quite a while, massive overclassification of materials, and there
has been much too slow review to provide declassification. The
Government is in the process of taking steps to try to find a way
to work that problem out.
Q. But if this Court would by chance rule against you, then the
Government would surely do it, wouldn't they?
A. If the Court should rule against us here, then it seems to me
that it becomes moot with respect to these items. They can be
published, and whether we classify them or declassify them is an
academic question.
Chief Justice Burger:
Q. The Court would then have done the job for you, is that not
correct?
A Yes, the Court will in effect have declassified the materials.
Justice White:
Q. I had thought the standard that you were operating under
here in terms of a prior restraint was not necessarily equivalent
to the standard that might be operative in a criminal proceeding.
Whether or not a newspaper may be enjoined from publishing
classified information does not necessarily determine some criminal
proceeding.
A You are certainly right, Mr. Justice, if I may say so, in terms
of an examination question. I find it exceedingly difficult to think
that any jury would convict or that an appellate court would
affirm a conviction of a criminal offense for the publication of
materials which this Court has said could be published. Simply as
a practical matter whether it was a crime or not, these are the
same materials that were involved in The New York Times case.
All we did was publish them. I find it difficult to think that such a
case should be prosecuted or could effectively be prosecuted.
Q. But the standard concededly is not the same.
A It is not the same issue, and I repeat, I think it would technically
be a crime if the materials remained classified. Now, if I
may get on-
Justice Stewart:
Q. Mr. Solicitor General, just before you do, this brings me
back to my original question of a few moments ago as to what the
real, basic issue in this case is. As I understand it, you are not
claiming
that you are entitled to an injunction simply or solely because
this is classified material.
A No.
Q. Nor do I understand it that you are claiming that you are
entitled to an injunction because it was stolen from you, that it
is your property. You are claiming rather and basically that
whether or not it is classified or however it is classified, and
however it was acquired by these newspapers, the public disclosure
of this material would pose a grave and immediate danger to the
security of the United States of America, period.
A. Yes, Mr. Justice.
697
Q. Now, isn't that correct?
A. Yes, Mr. Justice.
Justice Stewart:
Q. SO declassification vel non does not have much to do with the
basic issue, does it?
A. I agree with you, except that it is part of the setting. If this
material had never been classified, I think we would have a considerably
greater difficulty in coming in and saying-for example,
suppose the material had been included in a public speech made
by the President of the United States.
Q. Then it would be in the public domain already. That is something
else.
A. All right. We come in and say, "You can't print this because
it will gravely affect the security of the United States." I think
we would plainly be out.
Q. You would have a very shaky case on the facts. This, therefore,
is a fact case, is it not? Until we can decide this case, we
have to look at the facts, the evidence in this case that has been
submitted under seal.
A. In large part, yes, Mr. Justice, but I am still trying to get
some help from the background and the setting which I repeat,
it is not irrelevant, that the concatenation of words here is the
property of the United States, that this has been classified under
executive orders approved by Congress, and that it obviously
has been improperly acquired.
Q. That may have a great deal to do on the question of whether
or not somebody is guilty of a criminal offense, but I submit it has
very little to do with the basic First Amendment issue before
this Court in this case.
A. All right, Mr. Justice, I repeat, unless we can show that this
will have grave, and I think I would like to amend it-I know
the Court's order has said "immediate," but I think it really ought
to be "irreparable harm to the security of the United States."
Justice Harlan:
Q. I would think with all due respect to my colleague that
the question of classification would have an important bearing on
the question of the scope of judicial review of an executive
classification.
A. I think, Mr. Justice, that is true, but I also think the heart
of our case is that the publication of the materials specified in my
closed brief will, as I have tried to argue here, materially affect
the security of the United States. It will affect lives. It will affect
the process of the termination of the war. It will affect the process
of recovering prisoners of war. I cannot say that the termination of
the war or recovering prisoners of war is something which has an
immediate effect on the security of the United States. I say that it
has such an effect on the security of the United States that it ought
to be the basis of an injunction in this case.
I would like to get to the question of the standard which was
used by the District judge in this case. I think it is relevant to
698
point out that on Page 267 of the transcript in the District Court
before Judge Gesell, he said, "The court further finds that publication
of the documents in the large may interfere with the ability
of the Department of State in the conduct of delicate negotiations
now in process-not in the past-now in process, or contemplated
for the future whether these negotiations involve Southeast Asia
or other areas of the world. This is not so much because of anything
in the documents themselves, but rather results from the
fact that it will appear to foreign governments that this Government
is unable to prevent publication of actual Government communications
when a leak such as the present one occurs."
Thus the judge rejected as a standard in this matter the whole
question of the ability of the Department of State, and that means
the President, to whom the foreign relations are conferred by the
Constitution, to conduct delicate negotiations now in process or
contemplated for the future. I suggest to the Court that it is
perfectly obvious that the conduct of delicate negotiations now in
process or contemplated for the future has an impact on the
security of the United States.
Now, the standard which the judge did apply is one which, with
the benefit of 20-20 hindsight, I would have written differently.
Executive Order 10501 provides the basis for security classification
issued by President Eisenhower in 1953, after a comprehensive
study by a commission on these matters. The definition of top
secret in Section 1(A) of Executive Order 10501 is, "Top-Secret
shall be authorized by appropriate authority only for defense
information or material which requires the highest degree of protection.
The Top-Secret classification shall be applied only to that
information or material that the defense aspect of which is paramount
and the unauthorized disclosure of which could result in
exceptionally grave damage to the nation, such as"-this was not
intended to be all-inclusive, but illustrative-"such as leading to a
definite break in diplomatic relations affecting the defense of the
United States, an armed attack against the United States or its
allies, a war or the compromise of military or defense plans or
intelligence operations or scientific or technological developments
vital to the national defense."
Judge Gesell has used that as the standard. He made no reference
whatever to the succeeding classification, which is Secret,
and there is also a classification which is Confidential. But Judge
Gesell has used as the basis of his decision, and I suggest this was
fundamental error, that there is no proof-this is on Page 269
of the transcript of the hearing before Judge Gesell-there is no
proof that there will be an armed attack on the United States, that
there will be an armed attack on an ally, that there will be a war,
that there will be a compromise of military or defense plans-in
my closed brief I contend that he was wrong on that-a compromise
of intelligence operations, and in my closed brief I contend
that he was plainly wrong on that, or a compromise of scientific
and technological materials.
699
If the standard is that we cannot prevent the publication of
improperly acquired material unless we can show in substance
an effect, because that is what he really meant, that there will be
a break in diplomatic relations or that there will be an armed
attack on the United States, I suggest that the standard which
Judge Gesell used is far too narrow. Perhaps it lies in between.
My own thought would be that in the present parlous state of the
world, considering negotiations in the Middle East, considering the
SALT talks now going on-it is perhaps not inappropriate to
remember that SALT is Strategic Arms Limitations Talks, the consequences
of which obviously have in all likelihood not the prevention
of a nuclear attack tomorrow, maybe not next week, but only
by success in this kind of negotiations can we have any hope that
our children and our children's children will have a world to live in.
I suggest that when it is found by the District Court that the
publication of the documents in the large may interfere with, the
ability of the Department of State in the conduct of delicate
negotiations now in process or contemplated for the future, that
should be enough by itself to warrant restraint on the publication
of the now quite narrowly selected group of materials covered in
the special appendix and dealt with in some detail in my closed
brief, and the related papers which have been filed with the court
this morning.
Justice Harlan:
Q. Could I ask you a question before you sit down? I had
understood from your papers and the brief that you filed this
morning that the only specific relief at this stage, this juncture
of the proceedings you are asking for is (A) that the Court of
Appeals decision in The Times case should be affirmed, namely,
that the further hearing before the District Court ordered by the
Court of Appeals should go forward to a conclusion, and as
regards The Washington Post case, that you are asking only that
the proceedings thereby conformed to the proceedings in the
Court of Appeals in the Second Circuit, and that therefore these
broader questions that you have been talking about are not before
the court at the moment, in your judgment.
A. No, Mr. Justice, I think I cannot agree with that. It is our
position that Judge Gesell used the wrong standard, as I have
just said, and it is our view that the judgment of the Second Circuit
should be affirmed, and the case remanded to Judge Gurfein for
further hearing under a proper standard which I hope this court
will develop and announce, and that the decision of the Court of
Appeals would be reversed and the case remanded to Judge Gesell
for further hearing and the application of the proper standard
which this court has decided, because it is our view, as I have
endeavored to contend, that in rational terms in the modern
world, the standard that Judge Gesell applied is just too narrow,
and as I have said, the standard should be great and irreparable
harm to the security of the United States. In the whole diplomatic
area, the things don't happen at 8: 15 tomorrow morning. It may
700
be weeks or months, people tell me that already channels of
communication on which great hope had been placed have dried
up. I haven't the slightest doubt myself that the material which
has already been published and the publication of the other
material affects American lives and is a thoroughly serious matter.
I think to say that it can only be enjoined if there will be a war
tomorrow morning, when there is a war now going on, is much
too narrow.
Mr. Chief Justice Burger:
Thank you, Mr. Solicitor General, Mr. Bickel.
Oral Argument by Alexander M. Bickel, Esq.,
on Behalf of Petitioner
(The New York Times)
Mr. Bickel:
Mr. Chief Justice, may it please the court, we began publishing
on June 13. We published on the 14th and the 15th, with no move
from the Government until the evening of the 14th, despite what is
now said to be the gravest kind of danger which one would have
supposed would have been more obvious than it turned out to be.
Chief Justice Burger:
Mr. Bickel, aren't you going to allow some time for somebody
to really see what this means before they act and some pleadings
drawn, and get lawyers into the courts?
A. I plan to return briefly to this point. I point out now only that
as was evident to us at the hearings when we cross-examined some
of the Government witnesses, high-ranking people in the Government
quite evidently read these things on Sunday morning, the
following day, and no great alarm sounded.
We were then enjoined, under prior restraint, on the 15th, and
we have been under injunction ever since. This is the 11th day, I
guess, under the order of the Court of Appeals for the Second
Circuit. We would remain under injunction presumably until the
3d of July, with the distinct possibility of more time added after
that if appellate proceedings are required.
Now a word simply on what was had before the hearing that
was held before Judge Gurfein. It took place on Friday last, I
believe. It started first thing in the morning with open hearings.
We went in camera, as Mr. Seymour said, for something upward
of four hours. I do not know the exact time. The record will
clearly show that the judge's sole purpose, in camera, and continuously
expressed intent was to provoke from the Government
witnesses something specific, to achieve from them the degree of
guidance that he felt he needed in order to penetrate this enormous
record.
It is our judgment, and it was his, that he got very little, perhaps
almost nothing. The point, however, that I want to leave with
you is that at no time in the course of these hearings did the
Government object to their, what is now called the speed or
701
rapidity of them; at no point was more time asked for. Of course,
we all labored, as I think is only proper under the knowledge that
a great newspaper was being restrained from publishing, and that
expedition was desirable. But there is no evidence that I know of
that Judge Gurfein rushed the proceedings, or would have rushed
them, if the Government had asked for more time. I think the
Government gave Judge Gurfein all it had.
Now the Government based its complaint against us, framed in
very general terms, on a statute, first, one section of it and finally
section 793 (E) of the statute. We have a substantial portion of
our brief that is still devoted to arguing that the statute is
inapplicable.
Judge Gurfein so held it to be, and I take it that the order
of the Court of Appeals for the Second Circuit is at least open to
the interpretation that that holding of Judge Gurfein's is, if not
affirmed, at any rate, accepted.
If I may, at this point, take up Mr. Justice Stewart's question
to the Solicitor General, referring to our position, we concede,
and we have all along in this case conceded for purposes of the
argument, that the prohibition against prior restraint, like so
much else in the Constitution, is not an absolute. But beyond that.
Mr. Justice, our position is a little more complicated than that,
nor do we really think that the case, even with the statute out
of it, is a simple-presents indeed a simple question of fact.
Rather, our position is twofold. First, on principles, as we view
them, of the separation of powers, which we believe deny the
existence of inherent Presidential authority on which an injunction
can be based.
First on those, and secondly, on First Amendment principles,
which are interconnected, and which involve the question of a
standard before one reaches the facts, a standard on which we differ
greatly from the Solicitor General. On both these grounds, we
believe that the only proper resolution of the case is a dismissal of
the complaint.
Q. What was the first ground?
A. The first ground, which I am about to enter upon, is the
question of the separation of powers, with the statute out of this
case.
Q. Yes?
A. As I conceive it, Mr. Justice, the only basis on which the
injunction can issue is a theory, which I take it the Solicitor
General holds, of an inherent Presidential power.
Now an inherent-
Q. Based upon-
A. His constitutional-
Q. -The power of the executive in the area of international
relationships and in the area of the defense of the nation?
A. I so assume.
Q. Under the Constitution of the United States?
A. I so assume. The reason for that being that a court has to
find its law somewhere. As Holmes would have said, I suppose,
702
some legislative "will" must be present from which the court
draws the law that it then applies, and that legislative will has
to be the President's, if there is no statute.
I do not for a moment argue that the President does not have
full inherent power to establish a system of classification, that he
does not have the fullest inherent power to administer that system
and its procedures within the executive branch. He has his means
of guarding security at the source. In some measure he is aided by
the criminal sanction. But in any event, he has full inherent power,
and the scope of judicial review of the exercise of that power will
presumably vary with the case in which it comes up, but I am
prepared to concede the decision in the Epstein case, for example,
which is cited, I think, in both briefs, that under the Freedom of
Information Act, the scope of review is limited, limited to examining
whether it is proper.
Nor are we arguing that the President does not have standing
-in the sense in which Baker and Carr distinguishes between
standing and just his ability-standing to come into court, which is
I think the burden of most of the cases that the Government cites.
The question that I do argue is whether there is inherent Presidential
power to make substantive law, not for the internal management
of the Government, but outgoing, outlooking substantive
law, which can form the basis for a judicially issued injunction,
imposing a prior restraint on speech.
The decisive issue that ties in this point and our ultimate First
Amendment point is, of course, the exception carved out by Chief
Justice Hughes in Near v. Minnesota, for that narrow area in
which he accepted that a prior restraint on speech might be applied.
This is an exception that is made to a rule more solidly
entrenched in the First Amendment than any other aspect of it,
a rule that is deeply part of the formative experience out of which
the First Amendment came, a rule against prior restraint, based
on the experience that prior restraints fall on speech with a special
brutality and finality and procedural ease all their own, which
distinguishes them from other regulations of speech. If the criminal
statute "chills" speech, prior restraint "freezes" it.
It is within that well established doctrine that the exception
arises. As Chief Justice Hughes formulated it, it referred to actually,
it said-we would all assume that a prior restraint might
be possible, to prevent actual obstruction of the recruiting service,
and this is the Chief Justice's language, or the publication of sailing
dates of transports, or the number and location of troops. I
suppose that under the present law, the "recruiting service" part of
that exception is problematic, but on the sailing dates of ships and
the location of troops, there is a very specific statute. It is 18
V.S.C. 794, which has not been cited against us, which is inapplicable,
which is why it has not been cited against us, because that
is not what we report. That is not in our paper.
That being the case, there is no applicable statute under which
we are covered. The question arises, as a matter of inherent
Presidential authority, what kind of feared event would give rise to an
independent power on the part of the President? It is a question, in
a sense, that was saved in Hiribayashi v. the United States, the first
of the Japanese exclusion cases. It is a question which, in its own
context, of course, Youngstown Sheet and Tube Co. v. Sawyer
answered in the negative.
My suggestion would be that whatever that case, that extremity,
that absolute other extremity in which action for the public safety
is required, whatever that case may be in which, under this
Constitution,
under its rules of separation of powers, when the President
has independent, inherent authority to act domestically against
citizens, let alone to impose a prior restraint, whatever that case
may be, it cannot be this case. Whatever that case may be, it surely
is of a magnitude and of an obviousness that would leap to the
eye, and that is why, in part, Mr. Chief Justice, I mentioned at
the beginning, the period of time that has passed. I would suppose
that, stretching our imaginations, and trying to envisage that
case, the one characteristic of it suggested by the example that
Chief Justice Hughes recited, suggested by the phrase that the
Second Circuit used, which is probably why the Solicitor General
resists the word "immediate," the single characteristic that we can
immediately see of such an imagined event would be that it is
obvious that the public safety is an issue, that time is of the essence.
I submit that that cannot be this case. It cannot be that it
has to take the Government which has been reviewing these documents
for many months, not just in connection with this case, but
in reply to an inquiry made by Senator Fulbright, as the record of
our hearings in New York shows, it cannot be that a Government,
consisting, after all, of more than just the five witnesses we heard
in New York, or the ones that were heard here, over this length of
time, has an unfamiliarity with these documents, substantial as
they might be, which is so great that, when news of their publication
comes up, nobody in the Government knows that somewhere
in those documents is one which presents a mortal danger to the
security of the United States.
I would submit, secondly, that while error is always possible,
Judge Gurfein and the Court of Appeals for the Second Circuit,
which affirmed him on the record that he had before him, and
Judge Gesell, in the Court of Appeals here, all of those judges
cannot have been that wrong.
Justice Blackmun:
Q. Professor Bickel, this is not your case, but reading from
Judge Wilkey's dissent, "When I say 'harm' I mean the death of
soldiers, the destruction of al1iances, the greatly increased difficulty
of negotiation with our enemies, the inability of our diplomats
to negotiate, as honest brokers, between would-be belligerents."
I take it that you disagree fundamental1y with that statement?
A. Not entirely, Mr. Justice Blackmun. For example, the death
of soldiers-I would disagree that impairment of diplomatic relations can
be a case for prior restraint, I would say, even under a
statute.
I would not disagree that the death of soldiers, as in the troop
ship, or as in the example that Chief Justice Hughes gave. The
difficulty I would have would be that nothing that any of these
judges, including Judge Wilkey, because he, I suppose, is talking
about what might yet be shown by the Government, nothing that
any of these judges have seen is related by a direct, causal chain,
to the death of soldiers or anything grave of that sort. I have
heard it, and everything that I have read-what characterizes
every instance in which the Government tries to make its case
factually is a chain of causation, whose links are surmise and
speculation, all going toward some distant event, itself not of the
gravity that I would suggest.
Q. You know these records better than I do, but then going
back to Judge Wilkey, he says, "But on careful, detailed study of
the affidavits and evidence, I find the number of examples of documents
which, if in possession of The Post," and I repeat, this is
The Post case, "and if published would clearly result in great harm
to the nation."
Now I repeat my question. You, therefore, disagree fundamentally
with what he seems to say?
A. I beg your pardon, Mr. Justice. I am not as familiar as I
should be with The Washington Post case. I have thought that
Judge Wilkey dissented on the ground that he would like more
evidence to come in. If this is a statement about the evidence that
he heard, or that was heard before Judge Gesell, then, depending
on what the standard is that he has in mind, I would think that that
language does not quite communicate to me what the standard is,
and I doubt that it is the narrow standard that I would contend
for.
Depending on the standard that he has in mind, he is either
wrong about his standard, or seven judges disagreed with him. I
am sorry. I am not sufficiently familiar with The Washington Post
case.
Justice White:
Q. Professor, your standard that you are contending for is grave
and immediate, or not? Is that too general for you?
A. The standard that I would contend for, and the difficulties
of words are simply enormous--one has to bring into one's mind
and image of some event and try to describe it. The standard that
I would contend for would have two parts to it. Let me also say
that I would differentiate between a standard applicable to the
President, acting on his own, the President acting in the case that
was saved in Hiribayashi, for example, and a prior restraint being
imposed pursuant to a well-drawn statute, which defines the standard
and the case. I would demand less of the statute than I would
demand of the President.
But the standard, in general, that I would have in mind, would,
at one end, have a grave event-danger to the nation. Some of
705
the things described in the description of top-secret classification in
the Executive Order that the Solicitor General read off, I think,
would fit that end of the standard.
At the other end would be the fact of publication, and I would
demand, and this would be my second element, that the link between
the fact of publication and the feared danger, the feared
event, be direct and immediate and visible.
Justice White:
Q. I take it then that you could easily concede that there may
be documents in these 47 volumes which would satisfy the definition
of "Top-Secret" in the executive order, and nevertheless,
would not satisfy your standards?
A. That would be chiefly for the reason that, as is notorious,
classifications are imposed-
Q. No, my question was this. Let us concede, for the moment,
that there are some documents that are properly classified Top
Secret. You should say that does not necessarily mean that your
standard is satisfied?
A. That is correct, Mr. Justice. I would say that-
Q. I have not read anything in any of your documents or in any
of these cases which the newspapers suggest for a moment that
there is no document in these 47 volumes which satisfies properly
the definition of top secret.
A. I don't know about that.
Q. You do not deny that, do you?
A. I have no knowledge. I have never been near the documents,
Mr. Justice.
Q. But your position must be then that even if there is a document
or so, none of them satisfies your standard.
A. I would say that today. If asked that question on the day I
appeared before Judge Gurfein, on a temporary restraining order,
my answer would have been I expect not, I trust the people at
The Times. I am fairly certain by now, Mr. Justice, after all of
this time, having read the submissions of the Government, although
I was hit with another one this morning, not a separate submission,
but an explication of earlier ones that I have not had a chance to
glance at yet. This literature, like some scholarly literature, tends
to get ahead of us. Having read the submissions of the Government,
I am flatly persuaded that there is nothing in there that
would meet my standards for a statute or independent executive
action, because if there were, it surely should have turned up by
now. It cannot be after, I gather the Solicitor General had the
same experience yesterday afternoon, that I saw Judge Gurfein
having. Please show me. Now, which are the three, which are the
five, which are the ten? Which is the most important to these? All
that one ever got, all that I have ever heard have been statements
of the feared event in terms of an effect on diplomatic relations.
If it is a military matter, then it was in terms of the addition of a
possible cause to a train of causal factors, to train of events that
is well on the rails as is, and propelled by sufficient other facts.
706
That sort of statement is the only thing we have heard, and I
would submit that that does not meet any possible First Amendment
standard. It does not meet it either in the statement of the
seriousness of the event that is feared, or what is more important
and more obvious in this case, in the drawing of the link between
the act of publication as the cause of that event and the event that
is feared. That link is always, I suggest, speculative, full of
surmises,
and a chain of causation that after its first one or two links
gets involved with other causes operating in the same area, so that
what finally causes the ultimate event becomes impossible to say
which the effective cause was. The standard I would propose
under the First Amendment would not be satisfied by such things.
Justice Stewart:
Q. Your standard is that it has to be an extremely grave event
to the nation and it has to be directly proximately caused by the
publication.
A. That is exactly correct.
Q. I gather then that your basic argument with the statutory or
regulatory definition of "top-secret" is with the word "could,"
because that definition says "unauthorized disclosure of which
could result in" and so forth.
A. Yes, I was addressing myself only to the events.
Q. You would insist that it would probably result?
A. I would insist that for purposes certainly of any action in
the President's inherent power, which is the case before us.
Q. Mr. Bickel, it is understandably and inevitably true that in a
case like this, particularly when so many of the facts are under
seal, it is necessary to speak in abstract terms, but let me give you
a hypothetical case. Let us assume that when the members of the
Court go back and open up this sealed record we find something
there that absolutely convinces us that its disclosure would result
in the sentencing to death of 100 young men whose only offense
had been that they were 19 years old and had low draft numbers.
What should we do?
A. Mr. Justice, I wish there were a statute that covered it.
Q. Well there is not. We agree, or you submit, and I am asking
in this case what should we do.
A. I am addressing a case of which I am as confident as I can
be of anything that Your Honor will not find that when you get
back to your chambers. It is a hard case. I think it would make
bad separation of powers law. But it is almost impossible to resist
the inclination not to let the information be published, of course.
Q. As you know, and I am sure you do know, the concern that
this Court has term after term with people who have been convicted
and sentenced to death, convicted of extremely serious
crimes in capital cases, and I am posing you a case where the disclosure
of something in these files would result in the deaths of
people who are guilty of nothing.
A. You are posing me a case, of course, Mr. Justice, in which
707
that element of my attempted definition which refers to the chain
of causation-
Q. I suppose in a great big global picture this is not a national
threat. There are at least 25 Americans killed in Vietnam every
week these days.
A. No, sir, but I meant it is a case in which the chain of causation
between the act of publication and the feared event, the
death of these 100 young men, is obvious, direct, immediate.
Q. That is what I am assuming in my hypothetical case.
A. I would only say as to that that it is a case in which in the
absence of a statute, I suppose most of us would say-
Q. You would say the Constitution requires that it be published,
and that these men die, is that it?
A. No, I am afraid that my inclinations to humanity overcome
the somewhat more abstract devotion to the First Amendment in
a case of that sort. I would wish that Congress took a look to the
seldom used and not in very good shape espionage acts, and
cleaned them up some so that we could have statutes that are
clearly applicable, within vagueness rules, and what not, so that
we do not have to rely on Presidential powers. But the burden of
the question is do I assume that the event has to be of cosmic
nature.
Q. That is the question.
A. No, sir. The examples given by Chief Justice Hughes himself
are not. A troop ship is in a sense that 100 men or the location
of a platoon is in a sense that 100 men. I don't assume that. I
do honestly think that that hard case would make very bad separation
of powers law.
Q. Let me alter the illustration a little bit in the hypothetical
case. Suppose the information was sufficient that judges could be
satisfied that the disclosure of the link the identity of a person
engaged in delicate negotiations having to do with the possible
release of prisoners of war, that the disclosure of this would delay
the release of those prisoners for a substantial period of time. I am
posing that so that it is not immediate. Is that or is that not in
your view a matter that should stop the publication and therefore
avoid the delay in the release of the prisoners?
A. On that question, which is of course a good deal nearer to
what is bruited about, anyway, in the record of this case, I can
only say that unless-which I cannot imagine can be possible the
link of causation is made direct and immediate, even though
the event might be somewhat distant, but unless it can be demonstrated
that it is really true if you publish this, that will happen,
or there is a high probability, rather than as is typical of those
events, there are 17 causes feeding into them. Anyone of those
other than the publication is entirely capable of being the single
effective cause, and the real argument is, well, you add publication
to that, and it makes it a little more difficult. I think, Mr.
Justice, that is a risk that the First Amendment signifies that this
708
society is willing to take. That is part of the risk of freedom that I
would certainly take.
Q. I get a feeling from what you have said, although you have
not addressed yourself directly to it, that you do not weigh heavily
or think that the courts should weigh heavily the impairment of
sources of information, either diplomatic or military intelligence
sources. I get the impression that you would not consider that
enough to warrant an injunction.
A. In the circumstances of this case, Mr. Justice, I think, or I
am perfectly clear in my mind, that the President, without statutory
authority, no statutory basis, goes into court, asks an injunction on
that basis, that if Youngstown Sheet and Tube Co. v. Sawyer
means anything, he does not get it. Under a statute, we don't face
it in this case, and I don't really know. I would have to face that
if I saw it. If I saw the statute, if I saw how definite it was-
Justice Douglas:
Q. Why would the statute make a difference, because the First
Amendment provides that Congress shall make no law abridging
freedom of the press. Do you read that to mean that Congress
could make some laws abridging freedom of the press?
A. No, sir. Only in that I have conceded, for purposes of this
argument, that some limitations, some impairment of the absoluteness
of that prohibition is possible, and I argue that, whatever that
may be, it is surely at its very least when the President acts without
statutory authority because that inserts into it, as well-
Q. That is a very strange argument for The Times to be making.
The Congress can make all this illegal by passing laws.
A. I did not really argue that, Mr. Justice.
Q. That was the strong impression that was left in my mind.
A. I replied to the Chief Justice on a case that arose without a
statute, and tried to distinguish, because it is crucial for purposes
of this case to distinguish between the authority which is here
claimed of the President to act independently without a statute,
and the possibly greater authority of the whole Government through
the machinery of legislation to act in similar premises of which I
concede nothing that I don't have to, Mr. Justice.
Chief Justice Burger:
Q. I have one question which is prompted by this exchange.
Generally speaking, there are, as I understand it, no statutes granting
immunity to newspaper reporters from disclosing their sources,
but there is a firm claim made by newspapers, by reporters, and
there have been a number of cases on that. If I read the briefs
and the accounts of those other cases in California and several
other places, the claim of the newspaper is that the First Amendment
protects them from revealing their sources even to a grand
jury in the investigation of criminal matters, because otherwise the
newspapers' sources would dry up. That is generally the thesis of
the press, is it not?
A. There are some cases that are on the Court's docket, as you
know, Mr. Justice, for next fall. One of them with which I am
709
most familiar is the Caldwell case from California, in which there
was a refusal to reveal sources upheld by the Court of Appeals
for the Ninth Circuit, even to the point of not requiring an appearance
before the grand jury. But the claim is very substantially
qualified. That is to say, Caldwell holds---one does not know how
far that might be taken and perhaps some of the other cases will
require the argument to take it somewhat farther-but Caldwell
on its own holds that in circumstances where the Government, as
indeed Attorney General Mitchell's regulations themselves provide,
which were issued after the Caldwell case started, in cases where
the Government has not shown that it is inescapably central to the
proof of whatever crime it is that the grand jury is investigating,
that in those circumstances where the claim of confidential
communications
is made by the reporter, there is a sufficient First
Amendment interest to protect that claim on the theory that if
confidential sources dry up, and the theory runs they would dry up
if there were no protection of confidentiality, there would be a
diminished flow of news.
Chief Justice Burger:
Q. Yes, but the thing is that the newspapers and newspaper reporters
claim for themselves the right which this argument now
would deny to the Government.
A. Mr. Justice, I know there is an appearance of unfairness of
unevenness about it, but I think the answer that a reporter would
make, and an answer that I find wholly persuasive, is that neither
in this case nor in a case like Caldwell does The New York Times
nor does the reporter claim something for himself, but rather the
claim is made in order to vindicate the First Amendment and those
interests which that great document serves. Thank you.
Q. Thank you. Mr. Glendon.
Oral Argument by William R. Glendon, Esq.,
on Behalf of Respondent
(The Washington Post)
Mr. Glendon: Mr. Chief Justice, Your Honors, General Griswold,
Mr. Bickel, I think it might be helpful if I address my attention
to the facts which lie behind these cases, or this case, The Washington
Post case, as it comes before Your Honors, because I think
we have heard here a familiar plea, familiar to us who have been
involved in this case over the last intense week, that some more
time is needed while the First Amendment is suspended. We first
faced this question, Judge Gesell did, some week ago, and after a
hearing on the temporary restraining order, unconvinced by the
generality and lack of specificity, he denied the temporary restraining
order.
The Government, of course, as was its right, promptly went up
to the Court of Appeals, and in an extraordinary late session everything
has been late, I may say in this case, late hours, anyway
-the Court of Appeals, 2 to 1, Judges Robb and Robinson,
granted a temporary restraining order to the Government to give
710
them some time, and thus for the second time in two weeks, and
the second time in 200 years, the United States succeeded in obtaining
a prior restraint against the press.
Now, the Court of Appeals stated in its order that it would send
it back, send it to the District Court, and the District Court would
try it to determine whether the granting of an injunction for the
publication of the material would so prejudice the defense interests
of the United States or result in such irreparable injury to the
United States as to justify the extraordinary relief that was asked,
to wit, a prior restraint.
Justice Stewart:
Q. Before you proceed, Mr. Glendon, do you raise that as the
proper test?
A. I think that is the proper test, Your Honor, yes. That is the
test that we tried the case on, sir, and I think the implications of
the words may require some development, and I am sure there
will be arguments as to exactly what those words mean, but that
is the test we tried the case on.
Q. Then would you repeat the words so that I will have them in
mind?
A. So prejudice the defense interest of the United States, or
result in such irreparable injury to the United States as would
justify restraining the publication.
Q. Then that would not cover the simple deaths, say, of a hundred
or two young men.
A. Your Honor, that is a hard case you put, obviously. I think,
we all have to measure this case in the light of what we have
before us, and what we know we have before us.
Q. We have a lot of things under seal that I for one have not
seen. I have seen some of it, but I have not seen all of it.
A. I am going to address myself to those, Your Honor, and I
am going to point out as best I can within the limits here, as did
other courts, and the Government has not yet brought anything
like that case to Your Honors, nothing like that. What we have
heard, your honor, is much more in the nature of conjecture and
surmise.
Chief Justice Burger:
Q. Can anyone know in any certain sense the consequences of
disclosure of sources of information, for example, the upsetting of
negotiations, if that were hypothetically true, in Paris, or possible
negotiations that we don't know anything about in the release of
war prisoners, and that sort of thing? How does a government meet
the burden of proof in the sense that Judge Gesell laid it down?
That does not bring any battleships to the outer limits of New York
harbor, or set off any missiles, but would you say that it is not a
very grave matter?
A. Your Honor, I think if we are to place possibilities or conjecture
against suspension or abridgement of the First Amendment,
the answer is obvious. The fact, the possibility, the conjecture or
the hypothesis that diplomatic negotiations would be made more
711
difficult or embarrassed does not justify, and this is what we have
in this case, I think, and is all we have does not justify suspending
the First Amendment. Yet this is what has happened here. Conjecture
can be piled upon surmise. Judge Gurfein used the words
up in New York, and I am sure used it respectfully, but he said
when there is a security breach, people get the jitters. I think maybe
the Government has a case of the jitters here. But that, I submit,
does not warrant the stopping the press on this matter, in the
absence of a showing.
I would like to turn to that, because this matter, as I don't have
to say, does not come undeveloped before Your Honors. Two fine
District Court judges, two fine Courts of Appeals have considered
this, and in each I think it is fair to say even in the New York case,
the Government did not meet its burden. So it says to us, but one
more time, just one more time. This is where I was a moment ago
when I said that Judge Robb and Judge Robinson agreed to give
them a chance.
Now, we had a hearing in the District of Columbia, and I would
like if I may to comment upon what the Government said, and it
said it twice, about that hearing, because really Your Honors are
being asked to, on a representation, and I know it is a sincere
representation by General Griswold, but on a representation that
if we are given some more time, maybe we can find something.
Here is what the Government said in its brief, and it said it again
yesterday. They said in New York the Government was not able to
present to the court all of the evidence relating to the impact of
the disclosure of this material upon foreign relations and national
defense that it was able to present to the district court in The
Washington Post case.
The Government was accorded the fullest hearing that it wanted.
We started at the unusual hour of 8 o'clock in the morning. The
Government's case proceeded through the luncheon hour. We cross-examined
as we felt was necessary. The Court had plenty of time to
consider the matter. He delivered, I think you will agree, whether
you agree with his result, a finely reasoned opinion, so there was
no rush and no pressure. Then the matter went up to the Court
of Appeals, and the Court of Appeals had a session of some three
hours the next day. I might say, too, and I think this is perhaps
important, there has been no restriction on the Government's latitude,
because they did have these in camera hearings which frankly
were very difficult from our point of view to deal with, but they
did have them, and they had an in camera hearing in the Court
of Appeals. So to say now that we need more time, I think, does
not measure up to the other side of the equation which you are
being asked to consider, and that is to restrain two newspapers
while others are publishing from giving their readers the news.
It is, of course, their readers that we feel, and I think properly,
whose rights are involved, too, their right to know. In talking about
currency and immediacy, there is now involved in this country-the
country is engaged in an intense national debate. Things are hap-
712
pening this week on that score. These lawsuits undoubtedly precipitated
the executive to turn over these documents to the Congress.
Senator Fulbright, as I am sure you are all aware, has been
trying for some two years, I understand, to get these documents.
I think it is of interest here, because we are dealing with this case
and these documents. I think classification is important here in
your consideration of these cases, because these documents were
classified Top-Secret. They were classified Top-Secret because some
unknown individual who is not presented to the court, whose subjective
judgment could not be explored, despite the district judge
asking that he be brought in-perhaps there was a good reason,
we don't know-decided that they were Top Secret. They were all
Top-Secret because one was Top-Secret. There had been no review
of these documents except for one individual who said that
he had been reviewing them for some two years for sensitivity,
and the sensitivity arose from Senator Fulbright's frequent requests
to get these documents so that Congress could make the laws, and
perhaps the public would be informed.
Chief Justice Burger:
Q. Does the record tell how long The Post has had these documents
in its possession?
A. It does not show, Your Honor.
Chief Justice Burger:
Q. Does it show, if you know, how long The New York Times
had the documents in their possession before The Post got them?
A. The record in our case does not show that, Your Honor, but
I have read, and perhaps these gentlemen could answer better
than I, I understood they had them in their possession for some
months, a month or two.
Chief Justice Burger:
Q. I heard it mentioned somewhere three or four months.
A. Yes. It is not in the record, but that is my best answer.
After this proceeding was brought, and I think again it is part
of the significance of this proceeding, and during the course of it,
although starting out as a point that these documents were top
secret and none could be disclosed, the Government has offered to
review them, and perhaps some of them, they say, will be declassified,
which I suppose is some sort of admission that the original
classification and the original attitude towards them was wrong.
Chief Justice Burger:
Q. It could be that something classified in 1965 properly would
no longer be subject to classification, or even 1969 or 1970.
A. That is correct, Your Honor, and furthermore some of these
documents which were classified go back of course to 1945. The
documents are that ancient. The document itself is entitled "The
History." It is called a history, and from what I have seen of it,
that is what it is.
The Court in our case had before it, and Your Honors will see
the evidence of which I am aware, and there apparently has been
today additional references made to the documents, but it is a fact,
713
and I think it is a significant fact that the judge there asked the
Government
to show him a document. These extravagant claims were
made, and I say this respectfully, but this has been a case of broad
claims and narrow proof. Substantial claims have been made. If
you accept them, they would be worried, but we are talking here
about proof.
Chief Justice Burger:
Q. Was there an order at any time to produce all of the documents
in the possession of either of the newspapers for examination?
A. There was not, Your Honor.
Chief Justice Burger:
Q. Was there a request for such an order?
A. The Government made such a request; and because of the
concern that the newspaper has as to the protection of its source,
the documents we were advised would indicate the source, the
documents that we had would indicate the source.
Chief Justice Burger:
Q. Who denied that request, the district judge?
A. Yes, and here is how he resolved it.
Chief Justice Burger:
Q. He let that override the Federal rules of civil procedure on
discovery?
A. Here is how he resolved it, Your Honor. I think he did it
very fairly. He said if you are not willing to produce the documents-
we do not have all of the documents-but if you will not
produce all of the documents because of your claim of First
Amendment source protection, then I will assume that you have all
of the documents, and therefore the Government can show me any
document, and I will accept that as being in your possession for
the purposes of the case. I think that under the circumstances that
was a very fair way to do it. I, no more than any other lawyer,
like to be in that position, but I have to respect my client's
assertion,
which is a substantial and I think a valid assertion that a
newspaper is entitled to protect its source. So that is the way it
was, Your Honor.
Chief Justice Burger:
Mr. Glendon, I recall an ancient doctrine of equity about people
who come into equity with certain burdens on them. Doesn't it
strike you as rather extraordinary that in a case which largely
centers on protection of sources the newspapers are refusing to
reveal documents on the grounds that they must refuse in order to
protect their sources?
A. Your Honor, I don't understand that that is the issue here.
Chief Justice Burger:
I don't know about the issue. It is in and there are certain
standards about this case. This is an equity proceeding, people
coming into equity with clean hands, which is one of them, and
prepared to do equity.
A. We did not come into equity. The Government came into
equity.
714
Chief Justice Burger:
You were brought in.
A. We were brought in kicking and screaming, I guess.
Chief Justice Burger:
Q. You are now in the position of making demands on the First
Amendment. You say the newspaper has a right to protect its
sources, but the Government does not.
A. I see no conflict, Your Honor. I see no conflict at all. We
are in the position of asking that there not be a prior restraint in
violation of the Constitution imposed on us, and that equity should
not do that. We are also in the position of saying that under the
First Amendment we are entitled to protect our sources, and
frankly, I just do not find any conflict bearing on it.
The record shows, and I think this is important in Your Honor's
consideration, too, we are, as I said, talking about allegedly
top-secret
documents, and the record shows that these nomers of secret
and top secret are honored perhaps in the breach in Washington,
in the way the Government does business, and in the way it
perhaps has to do business. But it is certainly true that there is
massive overclassification of documents in Washington. We have
in the record instances where one Government official or another
has quite clearly indicated that while everything on his desk may
be classified in one fashion or another, in fact, perhaps 1 per cent
or 2 per cent or 5 per cent of it really is classified. I think that
is a realistic fact of life here.
We also have clearly in the record that the Government and the
press who have some mutual perhaps antagonism is not quite the
word, but they are naturally in opposite corners-the press is
trying to get as much news as it can and the Government, particularly
where it may be embarrassing or where it may be overly concerned
or may feel it is embarrassing or may, in Judge Gurfein's
words, have the jitters, is trying to prevent that sometimes. On
other occasions, the Government engages itself in leaks, because
some official will feel that in the public interest it is well for the
public to know, and that overrides any particular judgment of
security or classification.
The record, Your Honors will find, is replete with instances
where leaks of confidential, secret and top-secret material have
been given to the press, or the press has found them out and
published them, and of course nothing has happened. I think that
is significant because here this is the sort of thing we feel we are
talking about. As far as classification itself is concerned, and you
will remember the documents that we are talking about are a mixed
bag.
Justice White:
Q. Mr. Glendon, wouldn't you be making the same argument if
your client had stolen the papers?
A. I don't think the source of how we obtained them features
in this case.
715
Justice White:
Q. Then it would not make any difference? The leak aspect has
no relevance to the case, either.
A. I think it is relevant as background.
Justice White:
Q. Then it would be relevant if you stole them? Then you would
be making the same argument if your client sent an agent into the
Government and stole these papers, and then the Government
attempted to restrain your publication of them.
A. I do not think that the manner-
Justice White:
Q. Then one is an irrelevant as the other?
Q. It is not customary in the Government to leak 47 volumes at
a time, is it?
A. Your Honor, that is certainly true. It is certainly not customary.
The size here is different, but I think you will find, Your
Honors, in the affidavit that we have attached, and the exhibits that
we have attached to our affidavits, indicating secret stories, or
allegedly secret stories, based on secret information, that there is
probably more secret information there than you will find in these
documents, if you examine them.
Q. What basis did it have on this case?
A. I think it is simply a matter of background, Your Honor, an
atmosphere to show that this is not an untoward or unknown situation.
When we hear about how our foreign allies or our foreign
friends will be shocked or appalled or anything else, it is simply
not so. This happens. This is one of the facts of life.
I was starting to refer to a district judge telling the Government
to show, which was what he was supposed to do, and that is what
the Court of Appeals sent it back for, and he requested to show
these documents, these top secret documents. They were in the
courtroom, and the Government was invited and it has been invited
to show-let us look at what we are talking about, instead
of dealing just with abstractions and conjectures. This was on the
so-called secret transcript, and I am not going to avert to it, other
than to say that the one document that the Government produced
in response to this invitation set forth certain options with reference
to the war, and I will not go any further than that, which I think
any high school boy would have no difficulty in either putting
together, himself or readily understanding. All of them are on the
public press.
Now this is the sort of proof that we have been faced with, and
this is the will '0 the wisp that we have been chasing.
Justice Blackmun:
Q. Then Mr. Glendon, I come back to you with the same inquiry
I made of Professor Bickel. At least it was close enough to persuade
one judge of the Court of Appeals to disagree with what you
have just said.
A. Your Honor, that is true. I would like to revert to a fact that
the other members of the Court of Appeals felt constrained, after
716
they read that particular dissent to just yesterday issue an amendment
to their opinion in which they reiterated that they disagreed
with Judge Wilkey, which to me was some indication of the
strength and depth of their feeling. But Your Honor is right. Judge
Wilkey felt, and I say to Your Honor, respectfully, that is not
based on the record. There is nothing in the record that I know of,
and I think I know the record as far as it has been disclosed to
me, and perhaps there was some new material this morning that
was not, but as far as the record has been disclosed to me, there
is absolutely nothing to justify that statement, and I say the Court
of Appeals felt strongly enough about it to issue another statement,
to issue an amendment in which they specifically said they
disagreed.
Justice Stewart:
Q. The issues in this case then really are factual issues, are they
not? As I understand it, and this was my understanding initially-I
have not heard anything really to modify my understanding-you
agreed that an injunction could issue despite the First Amendment
if it was shown by the Government that there was something here
the disclosure of which would directly cause a grave, irreparable
and immediate danger to the country. You agreed that an injunction
could issue. You just simply say they have shown nothing of
the kind. Isn't that right?
A. They have shown nothing of that kind, or by any other
measurable standard that I understand could possibly be involved
in this case.
Q. SO it is a matter of fact.
A. Take the top-secret definition or anything else. But there is
something behind this, too, which I think perhaps is a legal issue,
and that is the scope of the review here.
Q. The scope of the review of what?
A. Review of the findings of the district-
Q. Of fact, the findings of fact under rule 52 (A), isn't it?
A. That is right.
Q. These are factual issues.
A. There is one legal question perhaps I will come to later, and
that is the utility of an injunction here.
Justice White:
Q. I take it then you do assert that there is not a single document
in the 47 volumes which is now entitled to a top-secret
classification as defined in the executive order?
A. No.
Q. You said as tested by the top secret standard, or any other,
there has been no showing made?
A. Any other standard, I am talking about. I think that the
standard is reasonably clear here, but whether you use words such
as "gravely prejudicial" to the United States, or "irreparably injure
the defense" of the United States, whatever the standard may be.
Q. Assume the standard, as made more specific by the tests of
717
the top secret classification-assume that was the standard. You
would say that it has not been satisfied in this case?
A. Clearly.
Q. By any document?
A. By anything the Government has brought forward.
Q. By any document in these papers, on the specified list?
A. Your Honor, the Government came into court. They suspended
the First Amendment; they stopped us from printing, and
they said they were going to prove this. This is an injunction
proceeding. Now it may be that the Government would see that
the courts should become the Defense Department's security officer,
and that the courts should delve into this pile of paper, 47 volumes,
on its own, from time to time. Whenever the Government is so
moved, that the courts should work for them. I say, Your Honor,
in our system, as I understand it, when you bring a case, you are
supposed to prove it, and when you come in claiming irreparable
injury, particularly in this area of the First Amendment, you have
a very, very heavy burden.
Q. Do you agree that Judge Gesell applied the Top Secret definitions
as his guide?
A. Yes, I think that would appear so.
Q. That is the way he measured the case?
A. He looked at it that way, from his opinion. Yes, Your Honor,
as far as I can determine.
Q. Would you accept that standard?
A. Yes, I think that fits in clearly to what we are talking about
under the doctrine of Near vs. Minnesota. Yes, sir.
Q. If the trial judge uses clearly erroneous standards, then the
case is not simply controlled by facts, is it?
A. I am sorry?
Q. If a trial judge, in these circumstances, used a standard to
judge the facts, and the standard was clearly erroneous, then this
is not just a fact case, is it?
A. I think, as I understand it, the "clearly erroneous" rule would
apply to the facts, what facts he found.
Q. But if he used the wrong standards, then it ceases to be just
a fact case?
A. I feel that he used the right standard. Your Honors will
determine that here, and I think that as far as the law is concerned,
that that is substantially the standard. You can, perhaps, use
alternative
words, but the thing is, I think, is immediacy and currency,
current injury to the United States, as this Court-has been
so substantial, that it justifies what has been done here. It is not
just that the United States has been injured. Judge Gesell made a
point, which I think is a very good one, that I think perhaps the
Government may forget that the interests of the United States are
the people's interests. You are weighing here, and this is why I
suppose we are here, but you are weighing here an abridgement
of the First Amendment, the people's right to know. That may be
718
an abstraction, but it is one that has made this country great for
some 200 years. You are being asked to approve something that
the Government has never done before. We were told by the
Attorney General to stop publishing this news. We did not obey
that order, and we were brought into court. We ended up being
enjoined.
I do think that when you come to that balance, in face of the
proof that exists here, that the decision is quite clear that the First
Amendment must survive, because they have not made a case.
Q. Do you think that Judge Gurfein and Judge Gesell used the
same standard of review?
A. I think essentially they did, Mr. Justice.
Q. They did not consider it a matter of review, did they? They
considered it a matter of their original findings.
A. Yes.
Q. They were not reviewing any classification?
A. No, they were not reviewing. They were making an original
determination. Under the circumstances and the proof before them,
it was not the kind of irreparable injury-
Q. It was a de novo hearing on whether or not the publication
would-
A. Yes.
Q. It was not reviewing any classification by the executive department
was it? They did not consider that that was what they
were doing?
A. No, that is featured in the evidence, Your Honor, as to how
the classification got put on there. That, of course, is-
Q. That is basically irrelevant, is it not?
A. No. Because the Government says, and you must listen, they
say, it is top secret, and that is it.
Q. No, I have not heard the Solicitor General say that here
today at all.
A. That is my understanding of their whole-
Justice Stewart:
I asked him that question, and he said that there were those in
the Government who would like that argument, but he was not
pressing it.
A. Well, it is the argument that we have heard along. You see,
having classified it Top Secret, they move from there to show no
proof.
Q. No, the Government has not, in this court, made the argument
that simply because it is Top Secret, they are entitled to an
injunction. They have not made that argument.
A. I was trying to say that, having classified the document Top
Secret, that is the premise of their case. They have not yet come
into this court and proven they are Top Secret, and yet they say
that we cannot publish them because they are Top Secret.
Justice Stewart:
I have not heard that argument made, with all respect.
719
Justice Black:
As I understand the argument of both of the lawyers, it seems
to me that they have argued it on the premise that the First
Amendment, freedom of speech, can be abridged by Congress if
it desires to do so.
A. I did not make that argument.
Justice Black: I understood you to. I did not understand you to
make any other argument, or your colleague. You were talking
about standards. I am not talking about standards. Under the First
Amendment, Congress shall make no law abridging freedom of the
press. I understand you to say that Congress can make a law.
A. No, Your Honor, I do not say that.
Justice Black: You do not say that?
A. Never. I do not say that. No, Sir. I am sorry, Your Honor.
I say that we stand squarely and exclusively on the First Amendment.
Q. Thank you, Mr. Glendon.
Chief Justice Burger: Mr. Solicitor General, you have about 12
minutes or thereabouts left.
Oral Argument in Rebuttal by the Solicitor General
The Solicitor General: Mr. Chief Justice, and may it please the
court, I should like to make it plain that we are not at all concerned
with past events in this case. We are not interested in
protecting anybody. That should be obvious enough simply from
the date of the materials which are involved. We are concerned
with the present and future impact of the publication of some of
this material. When I say "future," I do not mean in the 21st
century, but I also do not mean to limit it to tomorrow, because
in this area, events of great consequence to the United States
happen over periods of six months, a year, perhaps two or three
years.
What we are concerned with is the impact on the present and
the reasonably near future of the publication of these materials.
Now it is perfectly true that prior restraint cases with respect
to the press are rare, or conceivably nonexistent. I am not ready
to concede that they are nonexistent, but I cannot point to one
now. I have not had time to make a really thorough research. I
did point out that there are prior restraint cases as recently as
last term, with respect to freedom of speech, which is the First
Amendment in exactly the same terms as the freedom of the press.
There is the Associated Press case, which comes about as close
to being a prior restraint on the press case as you can get without
perhaps being technically a prior restraint. The reason, of course,
that there are not prior restraint cases with respect to the press is
that ordinarily, you do not find out about it until it has been
published.
Reference has been made to the fact that, oh, there are leaks
all the time. There are a great many leaks, but I would point out
720
that there is also a very wide respect of the security classification
system and its potentiality on the security of the United States.
Senator Fulbright did not publish this material. He requested of
the Secretary of Defense what use he could make of it, and I have
seen on the television other members of Congress who said that
they had some of the material but felt it not appropriate to use it,
because it was classified top secret.
Justice Marshall:
Q. Mr. Solicitor General, what particularly worries me at this
point is that I assume that if there are studies not now being made,
in the future there wiII be studies made about Cambodia, Laos,
you name it. If you prevail in this case, then in any instance that
anybody comes by any of those studies, a temporary restraining
order will automatically be issued. Am I correct?
A. It is hard for me to answer the question in such broad terms.
I think if properly classified materials are improperly acquired,
and that it can be shown that they do have an immediate or current
impact on the security of the United States, that there ought to be
an injunction.
I think it is relevant, at this point-
Justice Marshall:
Wouldn't we then-the Federal courts-be a censorship board,
as to whether this does-
A. That is a pejorative way to put it, Mr. Justice. I do not
know what the alternative is.
Justice Marshall:
The First Amendment might be.
A. Yes, Me. Justice, and we are, of course, fully supporting the
First Amendment. We do not claim or suggest any exception to
the First Amendment. We do not agree with Mr. Glendon when he
says that we have set aside the First Amendment, or that Judge
Gesell or the two courts of appeal in this case, have set aside the
First Amendment by issuing the injunction, which they have. The
problem in this case is the construction of the First Amendment.
[To Justice Black] Now Me. Justice, your construction of that is
well known, and I certainly respect it. You say that "no law" means
"no law," and that should be obvious. J can only say, Me. Justice,
that to me it is equally obvious that "no law" does not mean "no
law," and J would seek to persuade the Court that that is true.
As Chief Justice Marshall said, so long ago, it is a Constitution
we are interpreting, and all we ask for here is the construction of
the Constitution, in the light of the fact that it is a part of the
Constitution, and there are other parts of the Constitution that
grant powers and responsibilities to the executive, and that the
First Amendment was not intended to make it impossible for the
executive to function or to protect the security of the United States.
It has been suggested that the Government moved very slowly in
this matter. The Times started publishing on Sunday. Well, actually,
it was on Monday, which is pretty fast as the Government
721
operates, in terms of the consultations that have to be made, the
policy decisions that have to be made. On Monday, the Attorney
General sent a telegram to The New York Times, asking them to
stop and to return the documents. The New York Times refused.
On Tuesday, the United States started this suit.
It suggested that there have been full hearings, everything has
been carefully and thoroughly considered, but there is clear evidence
of haste in both records. This is apparent from the times
which have been stated, and I would like to point out that even
now, at this point, the hearing is on the question whether a preliminary
injunction should be granted. The only hearings that have
been held in any courts are to whether a preliminary injunction
should be granted. They were not intended to be full, plenary
trials, but merely sufficient to show the probability of possible
success. There simply was not time to prepare a comprehensive
listing or a comprehensive array of expert witnesses. The Government
relied on the fact that the district judge would examine the
study, and on the record, he concededly refused to do so. This was
at the heart of the decision of the Court of Appeals for the Second
Circuit, in its decision to remand for a full week of hearings on the
merits.
Q. I am not sure that I understand what you said. The Court of
Appeals relied on the assumption that the district judge would
examine the evidence, and the district judge refused to do so?
A. No. That there had not been a full hearing with respect to
this.
Q. Which case are we talking about now?
A. I am talking about The New York Times case in the Second
Circuit. The Second Circuit sent it back to the judge for a hearing-
Justice Stewart:
As I understood it, there was no claim that Judge Gurfein did
not consider everything that was then before him, but that new
matter was brought to the attention of the Court of Appeals for
the Second Circuit?
A. On the contrary, Mr. Justice, the full 47 volumes were offered
to Judge Gurfein, and he refused to examine them.
Justice Stewart:
He did not. He did not refuse to, he failed to.
A. No, Mr. Justice, he said that he would not examine them.
Justice Stewart:
He said that he did not have time to, but he did ask the Government
to please bring forward the worst.
A. No. I think that really came at a later stage.
Justice Stewart:
Then a new matter was brought to the attention of the Second
Circuit-
A. Brought to the attention of the Second Circuit Court of Appeals,
and they sent it back not for an instant hearing, but for one
limited, and properly so.
722
Everything about this case has been frantic. That seems to me
to be most unfortunate. I would like to point out that The New
York Times-
Justice Stewart:
No. The reason is, of course, as you know, Mr. Solicitor General,
that unless the Constitutional law, as it now exists, is changed,
a prior restraint of publication by a newspaper is presumptively
unconstitutional.
A. It is a very serious matter. There is no doubt about it, and
so is the security of the United States a very serious matter. We
have two important Constitutional objectives here which have to
be weighted and balanced and made as harmonious as they can be.
But it is well known that The Times had this material for three
months. It is only after The Times has had an opportunity to digest
it, and it took them three months to digest it, that it suddenly
becomes necessary to be frantic about it. It was not so terribly
important to get it out and get it to the public while The Times
was working over it, but after that now The Times finds it extremely
difficult to accept an opportunity for the courts to have an
adequate chance first to resolve the extremely difficult question of
the proper construction of the First Amendment in this situation,
and I concede that is an extremely difficult question. If the proper
construction is the one which Mr. Justice Black has taken for a
long time and is well known, of course, there is nothing more to
be said. But our contention is that that is not the proper construction.
Justice Stewart:
And the counsel on the other side do not disagree with you, Mr.
Solicitor General. They do not take Mr. Justice Black's position,
at least for purposes of argument in this case.
A. Very reluctantly they were pushed into conceding that there
might be some cases where there could be those suggested-
Q. Mr. Glendon said that he thought Judge Gesell's standard
was the correct one. Mr. Bickel said that he was making no claim
that there is an absolute prohibition of a prior restraint.
A. Frankly, I do not think it is much of a limitation to say that
it can be enjoined if it will result in a break of diplomatic relations
or a war tomorrow. As I have already said, we think the standard
used by Judge Gesell is wrong.
Q. Do you think they differ from the standards of Judge Gurfein?
A. I am sorry?
Q. I said, do you think that the standards that Judge Gesell used
were different from those which Judge Gurfein used?
A. I am not sure what standard Judge Gurfein used, because
much of this material Judge Gurfein did not have specifically
called to his attention. The standard which Judge Gesell used is to
say that unless it comes within that illustrative language, and the
definition of top secret, that it does not meet the requirement, and
that is wrong. I believe, and have sought to show in the closed brief
which is filed here, that there are materials, or there are items in
723
this material which will affect the problem of the termination of
the war in Vietnam, which will affect negotiations such as the
SALT talks, which affect the security of the United States vitally
over a long period, and which will affect the problem of the return
of prisoners of war. I suggest that however it is formulated, the
standard ought to be one which will make it possible to prevent
the publication of materials which will have those consequences.
Q. I still am not clear as to the basis for your view that the case,
the District of Columbia case, should be remanded. I got it
originally, from your papers, that you thought that it should be
remanded in order to have the fuller hearing that the court of
appeals may have been lacking before Judge Gurfein. This morning
you said that you thought it should be remanded because the
standard used by Judge Gesell was erroneous.
A. Essentially, in the Court of Appeals, there has been a hearing,
though it lasted only one long day. However, our basic claim
there would be that it ought to be remanded for hearing, and I
would be content to have it for hearing on this record, but for
determination on the right standard. In the Second Circuit case,
from Judge Gurfein, there has not yet been the kind of hearing
that we think there ought to be. We think there ought to be such
a hearing, and that Judge Gurfein should have the benefit of this
Court's views as to what the proper standard is, in coming to his
conclusion, as a result of that hearing.
Q. I understand, also, that you do claim that there are materials
in this record which do satisfy those categories of top secret?
A. Yes, Mr. Justice. I do not think that is essential, but I think
there are some.
Q. I know, but if Judge Gesell used those standards, the top
secret standard, for judgment, he was wrong in saying that none
of the material-
A. Yes, Mr. Justice, because there is reference in there, among
other things, to communications, and I think that is established in
this record.
Chief Justice Burger:
Thank you, Mr. Solicitor General. The case is submitted.
724
SUPREME COURT OF THE UNITED STATES
No. 1873
and
No. 1885
Decision
June 30, 1971
PER CURlAM.
We granted certiorari in these cases in which the United States
seeks to enjoin the New York Times and the Washington Post
from publishing the contents of a classified study entitled "History
of V. S. Decision-Making Process on Viet Nam Policy." -V. S.
-(1971).
"Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity."
Bantam Books, Inc. v Sullivan, 372 V. S. 58, 70 (1963);
see also Near v. Minnesota, 283 U. S. 697 (1931). The Government
"thus carries a heavy burden of showing justification for the
enforcement of such a restraint." Organization for a Better Austin
v. Kee/e,-V. S.-(1971). The District Court for the Southern
District of New York in the New York Times case and the District
Court for the District of Columbia and the Court of Appeals
for the District of Columbia Circuit in the Washington Post case
held that the Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia
Circuit is therefore affirmed. The order of the Court of
Appeals for the Second Circuit is reversed and the case is remanded
with directions to enter a judgment affirming the judgment
of the District Court for the Southern District of New York.
The stays entered June 25, 1971, by the Court are vacated. The
judgments shall issue forthwith.
So ordered.
Concurring Opinions
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLASjoins,
concurring.
I adhere to the view that the Government's case against the
Washington Post should have been dismissed and that the injunction
against the New York Times should have been vacated
725
without oral argument when the cases were first presented to this
Court. I believe that every moment's continuance of the injunctions
against these newspapers amounts to a flagrant, indefensible, and
continuing violation of the First Amendment. Furthermore, after
oral arguments, I agree completely that we must affirm the judgment
of the Court of Appeals for the District of Columbia and
reverse the judgment of the Court of Appeals for the Second
Circuit for the reasons stated by my Brothers DOUGLAS and
BRENNAN.In my view it is unfortunate that some of my Brethren
are apparently willing to hold that the publication of news may
sometimes be enjoined. Such a holding would make a shambles
of the First Amendment.
Our Government was launched in 1789 with the adoption of
the Constitution. The Bill of Rights, including the First Amendment,
followed in 1791. Now, for the first time in the 182 years
since the founding of the Republic, the federal courts are asked
to hold that the First Amendment does not mean what it says,
but rather means that the Government can halt the publication of
current news of vital importance to the people of this country.
In seeking injunctions against these newspapers and in its
presentation to the Court, the Executive Branch seems to have
forgotten the essential purpose and history of the First Amendment.
When the Constitution was adopted, many people strongly
opposed it because the document contained no Bill of Rights to
safeguard certain basic freedoms.! They especially feared that the
new powers granted to a central government might be interpreted
to permit the government to curtail freedom of religion, press,
assembly, and speech. In response to an overwhelming public
clamor, James Madison offered a series of amendments to satisfy
citizens that these great liberties would remain safe and beyond
the power of government to abridge. Madison proposed what later
became the First Amendment in three parts, two of which are set
out below, and one of which proclaimed: "The people shall not
be deprived or abridged of their right to speak, to write, or to
publish their sentiments; and the freedom of the press, as one of
the great bulwarks of liberty, shall he inviolable." 2 The amend-
1 In introducing the Bill of Rights in the House of Representatives,
Madison said: "[But I believe that the great mass of the people who
opposed [the Constitution]' disliked it because it did not contain
effectual
provisions against the encroachments on particular rights .... " 1
Annals of Congress 433 (1834). Congressman Goodhue added: "[I]t is
the wish of many of our constituents, that something should be added to
the Constitution, to secure in a stronger manner their liberties from
the
inroads of power." Id., at 426.
2 The other parts were:
"The civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be established, nor
shall the full and equal rights of conscience be in any manner, or on
any
pretext, infringed.
"The people shall not be restrained from peaceably assembling and
consulting
for their common good; nor from applying to the Legislature by
petitions, or remonstrances, for redress of their grievances." 1 Annals
of Congress 434 (1834). (Emphasis added.)
726
ments were offered to curtail and restrict the general powers
granted to the Executive, Legislative, and Judicial Branches two
years before in the original Constitution. The Bill of Rights
changed the original Constitution into a new charter under which
no branch of government could abridge the people's freedoms of
press, speech, religion, and assembly. Yet the Solicitor General
argues and some members of the Court appear to agree that the
general powers of the Government adopted in the original Constitution
should be interpreted to limit and restrict the specific and
emphatic guarantees of the Bill of Rights adopted later. I can
imagine no greater perversion of history. Madison and the other
Framers of the First Amendment, able men that they were, wrote in
language they earnestly believed could never be misunderstood:
"Congress shall make no law . . . abridging the freedom of the
press .... " Both the history and language of the First Amendment
support the view that the press must be left free to publish
news, whatever the source, without censorship, injunctions, or prior
restraints.
In the First Amendment the Founding Fathers gave the free
press the protection it must have to fulfill its essential role in our
democracy. The press was to serve the governed, not the governors.
The Government's power to censor the press was abolished so that
the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of government
and inform the people. Only a free and unrestrained press
can effectively expose deception in government. And paramount
among the responsibilities of a free press is the duty to prevent any
part of the government from deceiving the people and sending
them off to distant lands to die of foreign fevers and foreign shot
and shell. In my view, far from deserving condemnation for their
courageous reporting, the New York Times, the Washington Post,
and other newspapers should be commended for serving the purpose
that the Founding Fathers saw so clearly. In revealing the
workings of government that led to the Viet Nam war, the newspapers
nobly did precisely that which the Founders hoped and
trusted they would do.
The Government's case here is based on premises entirely different
from those that guided the Framers of the First Amendment.
The Solicitor General has carefully and emphatically stated:
"Now, Mr. Justice [BLACK], your construction of ..
[the First Amendment] is well known, and I certainly respect
it. You say that no law means no law, and that should
be obvious. I can only say, Mr[.] Justice that to me it is
equally obvious that 'no law' does not mean 'no law', and I
would seek to persuade the Court that that is true. . . .
[T]here are other parts of the Constitution that grant power
and responsibilities to the Executive and ... the First
Amendment was not intended to make it impossible for the
727
Executive to function or to protect the security of the United
States." 3
And the Government argues in its brief that in spite of the First
Amendment, "[t]he authority of the Executive Department to
protect the nation against publication of information whose disclosure
would endanger the national security stems from two
interrelated sources: the constitutional power of the President over
the conduct of foreign affairs and his authority as Commander-in-
Chief." 4
In other words, we are asked to hold that despite the First
Amendment's emphatic command, the Executive Branch, the
Congress, and the Judiciary can make laws enjoining publication
of current news and abridging freedom of the press in the name
of "national security." The Government does not even attempt to
rely on any act of Congress. Instead it makes the bold and dangerously
far-reaching contention that the courts should take it upon
themselves to "make" a law abridging freedom of the press in the
name of equity, presidential power and national security, even
when the representatives of the people in Congress have adhered
to the command of the First Amendment and refused to make
such a law.5 See concurring opinion of MR. JUSTICE DOUGLAS,
post, at -. To find that the President has "inherent power" to halt
the publication of news by resort to the courts would wipe out the
First Amendment and destroy the fundamental liberty and security
of the very people the Government hopes to make "secure." No
one can read the history of the adoption of the First Amendment
without being convinced beyond any doubt that it was injunctions
like those sought here that Madison and his collaborators intended
to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours
should not be invoked to abrogate the fundamental law embodied
in the First Amendment. The guarding of military and diplomatic
secrets at the expense of informed representative government provides
no real security for our Republic. The Framers of the First
Amendment, fully aware of both the need to defend a new nation
and the abuses of the English and Colonial governments, sought
to give this new society strength and security by providing that
freedom of speech, press, religion, and assembly should not be
abridged. This thought was eloquently expressed in 1937 by Mr.
3 Transcript of Oral Argument, at 76.
4 Brief for United States, at 12.
5 Compare the views of the Solicitor General with those of James
Madison, the author of the First Amendment. When speaking of the
Bill of Rights in the House of Representatives, Madison said: "If they
[the first ten amendments] are incorporated into the Constitution,
independent
tribunals of justice will consider themselves in a peculiar manner
the guardians of those rights; they will be an impenetrable bulwark
against every assumption of power in the Legislative or Executive; they
will be naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of rights." 1
Annals
of Congress 439 (1834).
728
Chief Justice Hughes-great man and great Chief Justice that he
was-when the Court held a man could not be punished for
attending a meeting run by Communists.
"The greater the importance of safeguarding the community
from incitements to the overthrow of our institutions
by force and violence, the more imperative is the need
to preserve inviolate the constitutional rights of free speech,
free press and free assembly in order to maintain the opportunity
for free political discussion, to the end that
government may be responsive to the will of the people and
that changes, if desired, may be obtained by peaceful means.
Therein lies the security of the Republic, the very foundation
of constitutional government." 6
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins,
concurring.
While I join the opinion of the Court I believe it necessary to
express my views more fully.
It should be noted at the ou[t]set that the First Amendment
provides that "Congress shall make no law . . . abridging the
freedom of speech or of the press." That leaves, in my view, no
room for governmental restraint on the press.1
There is, moreover, no statute barring the publication by the
press of the material which the Times and Post seek to use. 18
U. S. C. § 793 (e) provides that "whoever having unauthorized
possession of, access to, or control over any document, writing,
... or information relating to the national defense which information
the possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign
nation, wilfully communicates ... the same to any person not
entitled to receive it . . . shall be fined not more than $10,000 or
imprisoned not more than ten years or both."
The Government suggests that the word "communicates" is
broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship,
§§ 792-799. In three of those eight "publish" is specifically
mentioned: § 794 (b) provides "Whoever in time of war, with the
intent that the same shall be communicated to the enemy, collects
records, publishes, or communicates ... [the disposition of armed
forces]."
Section 797 prohibits "reproduces, publishes, sells, or gives
away" photos of defense installations.
6 Dejonge v. Oregon, 299 U. S. 353, 365 (1937).
1 See Beauharnais v. Illinois, 343 U. S. 250, 267 (dissenting opinion of
MR. JUSTICE BLACK), 284 (my dissenting opinion); Roth v. United
States, 354 U. S. 476, 508 (my dissenting opinion which MR. JUSTICE
BLACK joined); Yates v. United States, 354 U. S. 298, 339 (separate
opinion of MR. JUSTICE BLACK which 1 joined); New York Times v.
Sullivan, 376 U. S. 254, 293 (concurring opinion of MR. JUSTICE BLACK
which I joined); Garrison v. Louisiana, 379 U. S. 64, 80 (my concurring
opinion which MR. JUSTICE BLACK joined).
729
Section 798 relating to cryptography prohibits: "communicates,
furnishes, transmits, or otherwise makes available ... or publishes."
2
Thus it is apparent that Congress was capable of and did distinguish
between publishing and communication in the various
sections of the Espionage Act.
The other evidence that § 793 does not apply to the press is
a rejected version of § 793. That version read: "During any
national emergency resulting from a war to which the U. S. is a
party or from threat of such a war, the President may, by proclamation,
prohibit the publishing or communicating of, or the attempting
to publish or communicate any information relating to
the national defense, which in his judgment is of such character that
it is or might be useful to the enemy." During the debates in the
Senate the First Amendment was specifically cited and that provision
was defeated. 55 Cong Rec. 2166.
Judge Gurfein's holding in the Times case that this Act does not
apply to this case was therefore pre-eminently sound. Moreover,
the Act of September 23, 1950, in amending 18 U. S. C. § 793
states in § 1 (b) that:
"Nothing in this Act shall be construed to authorize,
require, or establish military or civilian censorship or in any
way to limit or infringe upon freedom of the press or of
speech as guaranteed by the Constitution of the United
States and no regulation shall be promulgated hereunder
having that effect." 64 Stat. 987.
Thus Congress has been faithful to the command of the First
Amendment in this area.
So any power that the Government possesses must come from its
"inherent power."
The power to wage war is "the power to wage war successfully."
See Hirabayashi v. United States, 320 U. S. 81, 93. But the war
power stems from a declaration of war. The Constitution by
Article I, § 8, gives Congress, not the President, power "to
declare war." Nowhere are presidential wars authorized. We need
not decide therefore what leveling effect the war power of Congress
might have.
These disclosures 3 may have a serious impact. But that is no
basis for sanctioning a previous restraint on the press. As stated
2 These papers contain data concerning the communications system
of the United States, the publication of which is made a crime. But the
criminal sanction is not urged by the United States as the basis of
equity
power.
3 There are numerous sets of this material in existence and they
apparently
are not under any controlled custody. Moreover, the President
has sent a set to the Congress. We start then with a case where there
already is rather wide distribution of the material that is destined for
publicity, not secrecy. I have gone over the material listed in the in
camera brief of the United States. It is all history, not future events.
None of it is more recent than 1968.
730
by Chief Justice Hughes in Near v. Minnesota, 283 U. S. 697,
719-720:
. While reckless assaults upon public men, and
efforts to bring obloquy upon those who are endeavoring
faithfully to discharge official duties, exert a baleful influence
and deserve the severest condemnation in public
opinion, it cannot be said that this abuse is greater, and it
is believed to be less, than that which characterized the
period in which our institutions took shape. Meanwhile, the
administration of government has become more complex,
the opportunities for malfeasance and corruption have multiplied,
crime has grown to most serious proportions, and the
danger of its protection by unfaithful officials and of the
impairment of the fundamental security of life and property
by criminal alliances and official neglect, emphasizes the
primary need of a vigilant and courageous press, especially
in great cities. The fact that the liberty of the press may be
abused by miscreant purveyors of scandal does not make
any the less necessary the immunity of the press from previous
restraint in dealing with official misconduct."
As we stated only the other day in Organization for a Better
Austin v. Keefe, - U. S. -, "any prior restraint on expression
comes to this Court with a 'heavy presumption' against its
constitutional
validity."
The Government says that it has inherent powers to go into
court and obtain an injunction to protect that national interest,
which in this case is alleged to be national security.
Near v. Minnesota, 283 U. S. 697, repudiated that expansive
doctrine in no uncertain terms.
The dominant purpose of the First Amendment was to prohibit
the widespread practice of governmental suppression of embarrassing
information. It is common knowledge that the First
Amendment was adopted against the widespread use of the common
law of seditious libel to punish the dissemination of material
that is embar[r]assing to the powers-that-be. See Emerson, The
System of Free Expressions, c. V (1970); Chafee, Free Speech
in the United States, c. XIII (1941). The present cases will, I
think, go down in history as the most dramatic illustration of that
principle. A debate of large proportions goes on in the Nation
over our posture in Vietnam. That debate antedated the disclosure
of the contents of the present documents. The latter are highly
relevant to the debate in progress.
Secrecy in government is fundamentally anti-democratic, perpetuating
bureaucratic errors. Open debate and discussion of public
issues are vital to our national health. On public questions there
should be "open and robust debate." New York Times, Inc. v.
Sullivan, 376 U. S. 254, 269-270.
I would affirm the judgment of the Court of Appeals in the
731
Post case, vacate the stay of the Court of Appeals in the Times
case and direct that it affirm the District Court.
The stays in these cases that have been in effect for more than
a week constitute a flouting of the principles of the First Amendment
as interpreted in Near v. Minnesota.
MR. JUSTICEBRENNAN, concurring.
I
I write separately in these cases only to emphasize what should
be apparent: that our judgment in the present cases may not be
taken to indicate the propriety, in the future, of issuing temporary
stays and restraining orders to block the publication of material
sought to be suppressed by the Government. So far as I can determine,
never before has the United States sought to enjoin a newspaper
from publishing information in its possession. The relative
novelty of the questions presented, the necessary haste with which
decisions were reached, the magnitude of the interests asserted,
and the fact that all the parties have concentrated their arguments
upon the question whether permanent restraints were proper may
have justified at least some of the restraints heretofore imposed in
these cases. Certainly it is difficult to fault the several courts below
for seeking to as[s]ure that the issues here involved were preserved
for ultimate review by this Court. But even if it be assumed that
some of the interim restraints were proper in the two cases before
us, that assumption has no bearing upon the propriety of similar
judicial action in the future. To begin with, there has now been
ample time for reflection and judgment; whatever values there
may be in the preservation of novel questions for appellate review
may not support any restraints in the future. More important, the
First Amendment stands as an absolute bar to the imposition of
judicial restraints in circumstances of the kind presented by these
cases.
II
The error which has pervaded these cases from the outset was
the granting of any injunctive relief whatsoever, interim or otherwise.
The entire thrust of the Government's claim throughout
these cases has been that publication of the material sought to
be enjoined "could," or "might," or "may" prejudice the national
interest in various ways. But the First Amendment tolerates absolutely
no prior judicial restraints of the press predicated upon
surmise or conjecture that untoward consequences may result. *
,~Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding
temporary restraints of allegedly obscene materials are not in
point. For those cases rest upon the proposition that "obscenity is not
protected by the freedoms of speech and press." Rolh v. United States,
354 U. S. 476 (1957). Here there is no question but that the material
sought to be suppressed is within the protection of the First Amendment;
the only question is whether, notwithstanding that fact, its publication
732
Our cases, it is true, have indicated that there is a single, extremely
narrow class of cases in which the First Amendment's ban on prior
judicial restraint may be overrid[d]en. Our cases have thus far
indicated
that such cases may arise only when the Nation "is at
war," Schenck v. United States, 249 U. S. 47, 52 (1919), during
which times "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." Near v. Minnesota, 283 U. S. 697,716 (1931). Even
if the present world situation were assumed to be tantamount to
a time of war, or if the power of presently available armaments
would justify even in peacetime the suppression of information
that would set in motion a nuclear holocaust, in neither of these
actions has the Government presented or even alleged that publication
of items from or based upon the material at issue would
cause the happening of an event of that nature. "The chief purpose
of [the First Amendment's] guarantee [is] to prevent previous restraints
upon publication." Near v. Minnesota, supra, at 713. Thus,
only governmental allegation and proof that publication must
inevitably, directly and immediately cause the occurrence of an
event kindred to imperiling the safety of a transport already at
sea can support even the issuance of an interim restraining order.
In no event may mere conclusions be sufficient: for if the Executive
Branch seeks judicial aid in preventing publication, it must
inevitably submit the basis upon which that aid is sought to scrutiny
by the judiciary. And therefore, every restraint issued in this case,
whatever its form, has violated the First Amendment-and none
the less so because that restraint was justified as necessary to
afford the court an opportunity to examine the claim more
thoroughly. Unless and until the Government has clearly made
out its case, the First Amendment commands that no injunction
may issue.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins,
concurring.
In the governmental structure created by our Constitution, the
Executive is endowed with enormous power in the two related
areas of national defense and international relations. This power,
largely unchecked by the Legislative 1 and Judicial2 branches,
may be enjoined for a time because of the presence of an overwhelming
national interest. Similarly, copyright cases have no pertinence here:
the
Government is not asserting an interest in the particular form of words
chosen in the documents, but is seeking to suppress the ideas expressed
therein. And the copyright laws, of course, protect only the form of
expression
and not the ideas expressed.
1 The President's power to make treaties and to appoint ambassadors
is of course limited by the requirement of Article II, § 1, of the
Constitution
that he obtain the advice and consent of the Senate, Article I,
§ 8, empowers Congress to "raise and support Armies," and "provide
and maintain a Navy." And, of course, Congress alone can declare war.
This power was last exercised almost 30 years ago at the inception of
733
has been pressed to the very hilt since the advent of the nuclear
missile age. For better or for worse, the simple fact is that a
President of the United States possesses vastly greater constitutional
independence in these two vital areas of power than does,
say, a prime minister of a country with a parliamentary form of
government.
In the absence of the governmental checks and balances present
in other areas of our national life, the only effective restraint
upon executive policy and power in the areas of national defense
and international affairs may lie in an enlightened citizenry-in
an informed and critical public opinion which alone can here
protect the values of democratic government. For this reason, it is
perhaps here that a press that is alert, aware, and free most vitally
serves the basic purpose of the First Amendment. For without an
informed and free press there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international
diplomacy and the maintenance of an effective national defense
require both confidentiality and secrecy. Other nations can hardly
deal with this Nation in an atmosphere of mutual trust unless
they can be assured that their confidences will be kept. And within
our own executive departments, the development of considered and
intelligent international policies would be impossible if those
charged with their formulation could not communicate with each
other freely, frankly, and in confidence. In the area of basic
national defense the frequent need for absolute secrecy is, of
course, self-evident.
I think there can be but one answer to this dilemma, if dilemma
it be. The responsibility must be where the power is.3 If the Con-
World War II. Since the end of that war in 1945, the Armed Forces of
the United States have suffered approximately half a million casualties
in various parts of the world.
2 See Chicago & Southern Air Lines v. Waterman Steamship Corp.,
333 U. S. 103; Hirabayashi v. United States, 320 U. S. 81; United States
v. Curtiss-Wright Export Corp., 299 U. S. 304; cf. Mora v. McNamara,
cert. denied 389 U. S. 934.
3 "It is quite apparent that if, in the maintenance of our international
relations, embarrassment-perhaps serious embarrassment-is to be
avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within
the international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved. Moreover, he, not
Congress,
has the better opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the premature
disclosure of it productive of harmful results. Indeed, so clearly is
this true that the first President refused to accede to a request to lay
before the House of Representatives the instructions, correspondence
and documents relating to the negotiation of the Jay Treaty-a refusal
the wisdom of which was recognized by the House itself and has never
since been doubted. "United States v. Curtiss-Wright Corp., 299
U. S. 304, at 320.
734
stitution gives the Executive a large degree of unshared power in
the conduct of foreign affairs and the maintenance of our national
defense, then under the Constitution the Executive must have the
largely unshared duty to determine and preserve the degree of
internal security necessary to exercise that power successfully. It
is an awesome responsibility, requiring judgment and wisdom of a
high order. I should suppose that moral, political, and practical
considerations would dictate that a very first principle of that
wisdom would be an insistence upon avoiding secrecy for its own
sake. For when everything is classified, then nothing is classified,
and the system becomes one to be disregarded by the cynical or
the careless, and to be manipulated by those intent on self-protection
or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be
the maximum possible disclosure, recognizing that secrecy can
best be preserved only when credibility is truly maintained. But
be that as it may, it is clear to me that it is the constitutional duty
of the Executive-is a matter of sovereign p[r]erogative and not
as a matter of law as the courts know law-through the promulgation
and enforcement of executive regulations, to protect the
confidentiality necessary to carry out its responsibilities in the
fields of international relations and national defense.
This is not to say that Congress and the courts have no role to
play. Undoubtedly Congress has the power to enact specific and
appropriate criminal laws to protect government property and
preserve government secrets. Congress has passed such laws, and
several of them are of very colorable relevance to the apparent
circumstances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to decide the
applicability of the criminal law under which the charge is
brought. Moreover, if Congress should pass a specific law authorizing
civil proceedings in this field, the courts would likewise have
the duty to decide the constitutionality of such a law as well as its
applicability to the facts proved.
But in the cases before us we are asked neither to construe
specific regulations nor to apply specific laws. We are asked, instead,
to perform a function that the Constitution gave to the
Executive, not the Judiciary. We are asked, quite simply, to prevent
the publication by two newspapers of material that the Executive
Branch insists should not, in the national interest, be published.
I am convinced that the Executive is correct with respect
to some of the documents involved. But I cannot say that disclosure
of any of them will surely result in direct, immediate, and
irreparable damage to our Nation or its people. That being so,
there can under the First Amendment be but one judicial resolution
of the issues before us. I join the judgments of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins,
concurring.
I concur in today's judgments, but only because of the concededly
extraordinary protection against prior restraints 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.1 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 which 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.
The Government's position is simply stated: The responsibility
of the Executive for the conduct of the foreign affairs and for the
security of the Nation is so basic that the President is entitled to
an injunction against publication of a newspaper story whenever
he can convince a court that the information to be revealed threatens
"grave and irreparable" injury to the public interest; 2 and the
injunction should issue whether or not the material to be published
is classified, whether or not publication would be lawful under
relevant criminal statutes enacted by Congress and regardless of
the circumstances by which the newspaper came into possession of
the information.
At least in the absence of legislation by Congress, based on its
own investigations and findings, I am quite unable to agree that
1 The Congress has authorized a strain of prior restraints against
private
parties in certain instances. The National Labor Relations Board
routinely issues cease-and-desist orders against employers whom it finds
have threatened or coerced employees in the exercise of protected
rights. See 29 U. S. C. § 160(c). Similarly, the Federal Trade
Commission
is empowered to impose cease-and-desist orders against unfair
methods of competition. 15 U. S. C. § 45 (b). Such orders can, and quite
often do, restrict what may be spoken or written under certain
circumstances.
See, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575, 616-620
(1969). Art. I, § 8 of the Constitution authorizes Congress to secure
the
"exclusive right" of authors to their writings, and no one denies that a
newspaper can properly be enjoined from publishing the copyrighted
works of another. See Westermann Co. v. Dispatch Co., 249 U. S. 100
(1919). Newspapers do themselves rely from time to time on the copyright
as a means of protecting their accounts of important events. However,
those enjoined under the statutes relating to the National Labor
Relations Board and the Federal Trade Commission are private parties,
not the press; and when the press is enjoined under the copyright laws
the complainant is a private copyright holder enforcing a private right.
These situations are quite distinct from the Government's request for
an injunction against publishing information about the affairs of
government,
a request admittedly not based on any statute.
2 The "grave and irreparable danger" standard is that asserted by the
Government in this Court. In remanding to Judge Gurfein for further
hearings in the Times litigation, five members of the Court of Appeals
for the Second Circuit directed him to determine whether disclosure of
certain items specified with particularity by the Government would
"pose such grave and immediate danger to the security of the United
States as to warrant their publication being enjoined."
736
the inherent powers of the Executive and the courts reach so far
as to authorize remedies having such sweeping potential for inhibiting
publications by the press. Much of the difficulty inheres
in the "grave and irreparable danger" standard suggested by the
United States. If the United States were to have judgment under
such a standard in these cases, our decision would be of little
guidance to other courts in other cases, for the material at issue
here would not be available from the Court's opinion or from
public records, nor would it be published by the press. Indeed,
even today where we hold that the United States has not met its
burden, the material remains sealed in court records and it is
properly not discussed in today's opinions. Moreover, because the
material poses substantial dangers to national interests and because
of the hazards of criminal sanctions, a responsible press may
choose never to publish the more sensitive materials. To sustain
the Government in these cases would start the courts down a long
and hazardous road that I am not willing to travel at least without
congressional guidance and direction.
It is not easy to reject the proposition urged by the United
States and to deny relief on its good-faith claims in these cases
that publication will work serious damage to the country. But that
discomfiture is considerably dispelled by the infrequency of prior
restraint cases. Normally, publication will occur and the damage
be done before the Government has either opportunity or grounds
for suppression. So here, publication has already begun and a
substantial
part of the threatened damage has already occurred. The
fact of a massive breakdown in security is known, access to the
documents by many unauthorized people is undeniable and the
efficacy of equitable relief against these or other newspapers to
avert anticipated damage is doubtful at best.
What is more, terminating the ban on publication of the relatively
few sensitive documents the Government now seeks to suppress
does not mean that the law either requires or invites
newspapers or others to publish them or that they will be immune
from criminal action if they do. Prior restraints require an unusually
heavy justification under the First Amendment; but failure by
the Government to justify prior restraints does not measure its
constitutional entitlement to a conviction for criminal publication.
That the Government mistakenly chose to proceed by injunction
does not mean that it could not successfully proceed in another
way.
When the Espionage Act was under consideration in 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.3 Congress at that
3 "Whoever, in time of war, in violation of reasonable regulations to
be prescribed by the President, which he is hereby authorized to make
and promulgate, shall publish any information with respect to the move-
737
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 Congo Rec. 2008 (1917) (remarks of Senator 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." 55 Congo
Rec. 2009 (1917).4
The criminal code contains numerous provisions potentially
relevant to these cases. Section 797 ~ makes it a crime to publish
certain photographs or drawings of military installations. Section
798,6 also in precise language, proscribes knowing and willful
ment, numbers, description, condition, or disposition of any of the
armed forces, ships, aircraft, or war materials of the United States, or
with respect to the plans or conduct of any naval or military
operations,
or with respect to any works or measures undertaken for or connected
with, or intended for the fortification or defense of any place, or
any other information relating to the public defense calculated to be
useful to the enemy, shall be punished by a fine ... or by imprisonment
.... " 55 Congo Rec. 2100 (1917).
4 Senator Ashurst also urged that " ... 'freedom of the press' means
freedom from the restraints of a censor, means the absolute liberty and
right to publish whatever you wish; but you take your chances of
punishment in the courts of your country for the violation of the laws
of libel, slander and treason." 55 Congo Rec. 2005 (1917).
5 Section 797, 18 U. S. C., provides:
"On and after thirty days from the date upon which the President
defines any vital military or naval installation or equipment as being
within the category contemplated under section 795 of this title,
whoever
reproduces, publishes, sells, or gives away any photograph, sketch,
picture, drawing, map, or graphical representation of the vital military
or naval installations or equipment so defined, without first obtaining
permission of the commanding officer of the military or naval post,
camp, or station concerned, or higher authority, unless such photograph,
sketch, picture, drawing, map, or graphical representation has clearly
indicated thereon that it has been censored by the proper military or
naval authority, shall be fined not more than $1,000 or imprisoned not
more than one year, or both."
6 In relevant part 18 U. S. C. § 798 provides:
"(a) Whoever 'knowingly and willfully communicates, furnishes,
transmits,
or otherwise makes available to an unauthorized person, or publishes,
or uses in any manner prejudicial to the safety or interest of the
United
States or for the benefit of any foreign government to the detriment of
the United States any classified information-
"(1) concerning the nature, preparation, or use of any code, cipher,
or cryptographic system of the United States or any foreign government;
or
"(2) concerning the design, construction, use, maintenance, or repair
of any device, apparatus, or appliance used or prepared or planned for
use by the United States or any foreign government for cryptographic or
communication intelligence purposes; or
738
publications of any classified information concerning the cryptographic
systems or communication intelligence activities of the
United States as well as any information obtained from communication
intelligence operations.7 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 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.
The same would be true under those sections of the criminal
code casting a wider net to protect the national defense. Section
793 (e) 8 makes it a criminal act for any unauthorized possessor
"(3) concerning the communication intelligence activities of the
United States or any foreign government; or
"(4) obtained by the processes of communication intelligence from
the communications of any foreign government, knowing the same to
have been obtained by such processes-
"Shall be fined not more than $10,000 or imprisoned not more than
ten years, or both."
7 The purport of 18 U. S. C. § 798 is clear. Both the House and Senate
Reports on the bill, in identical terms, speak of furthering the
security
of the United States by preventing disclosure of information concerning
the cryptographic systems and the communication intelligence systems
of the United States, and explaining that "[t]his bill makes it a crime
to
reveal the methods, techniques, and materiel used in the transmission
by this Nation of enciphered or coded messages .... Further, it makes
it a crime to reveal methods used by this Nation in breaking the secret
codes of a foreign nation. It also prohibits under certain penalties the
divulging of any information which may have come into this Government's
hands as a result of such a code-breaking." H. R. Rep. No. 1895,
81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was
explained as covering "only a small category of classified matter, a
category which is both vital and vulnerable to an almost unique degree."
Id., at 2. Existing legislation was deemed inadequate.
"At present two other acts protect this information, but only in a
limited way. These are the Espionage Act of 1917 (40 Stat. 217) and
the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized
revelation of information of this kind can be penalized only if it can
be proved that the person making the revelation did so with an intent
to injure the United States. Under the second, only diplomatic codes
and messages transmitted in diplomatic codes are protected. The present
bill is designed to protect against knowing and willful publication or
any
other revelation of all important information affecting the United
States
communication intelligence operations and all direct information about
all United States codes and ciphers." Ibid.
Section 798 obviously was intended to cover publications by
non-employees
of the Government and to ease the Government's burden in
obtaining convictions. See H. R. Rep. No. 1895, supra, at 2-5. The
identical Senate Report, not cited in parallel in the text of this
footnote,
is S. Rep. No. Ill, 81st Cong., 1st Sess. (1949).
8 Section 793(e) of 18 U. S. C. provides that:
"( e) Whoever having unauthorized possession of, access to, or control
over any document, writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national defense, or information
relating
to the national defense which information the possessor has reason
to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers,
transmits
or causes to be communicated, delivered, or transmitted, or at-
739
of a document "relating to national defense" either (1) willfully
to communicate or cause to be communicated that document to
any person not entitled to receive it or (2) willfully to retain the
document and fail to deliver it to an officer of the United States
entitled to receive it. The subsection was added in 1950 because
pre-existing law provided no penalty for the unauthorized possessor
unless demand for the documents was made.9 "The dangers SUftempts
to communicate, deliver, transmit or cause to be communicated,
delivered, or transmitted the same to any person not entitled to receive
it, or willfully retains the same and fails to deliver it to the officer
or
employee of the United States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000
fine,
or both. It should also be noted that 18 U. S. C. § 793 (g), added in
1950, see 64 Stat. 1004-1005 (1950); S. Rep. No. 2369, 81st Cong., 2d
Sess., 9 (1950), provides that "[i]f two or more persons conspire to
violate any of the foregoing provisions of this section, and one or more
of such persons do any act to effect the object of the conspiracy, each
of the parties to such conspiracy shall be subject to the punishment
provided for the offense which is the object of such conspiracy."
9 The amendment of § 793 that added subsection (e) was part of the
Subversive Activities Control Act of 1950, which was in turn Title I of
the Internal Security Act of 1950. See 64 Stat. 987 (1950). The report
of the Senate Judiciary Committee best explains the purposes of the
amendment:
"Section 18 of the bill amends section 793 of title 18 of the United
States Code (espionage statute). The several paragraphs of section 793
of title 18 are designated as subsections (a) through (g) for purposes
of
convenient reference. The significant changes which would be made in
section 793 of title 18 are as follows:
"(1) Amends the fourth paragraph of section 793, title 18 (subsec.
(d) ), to cover the unlawful dissemination of 'information relating to
the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the
advantage
of any foreign nation.' The phrase 'which information the possessor
has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation' would modify only
'information relating to the national defense' and not the other items
enumerated in the subsection. The fourth paragraph of section 793 is
also amended to provide that only those with lawful possession of the
items relating to national defense enumerated therein may retain them
subject to demand therefor. Those who have unauthorized possession of
such items are treated in a separate subsection.
"(2) Amends section 793, title 18 (subsec. (e», to provide that
unauthorized
possessors of items enumerated in paragraph 4 of section 793
must surrender possession thereof to the proper authorities without
demand.
Existing law provides no penalty for the unauthorized possession
of such items unless a demand for them is made by the person entitled
to receive them. The dangers surrounding the unauthorized possession
of such items are self-evident, and it is deemed advisable to require
their
surrender in such a case, regardless of demand, especially since their
unauthorized possession may be unknown to the authorities who would
otherwise make the demand. The only difference between subsection
(d) and subsection (e) of section 793 is that a demand by the person
entitled to receive the items would be a necessary element of an offense
under subsection (d) where the possession is lawful, whereas such a
demand would not be a necessary element of an offense under subsection
(e) where the possession is unauthorized." S. Rep. No. 2369, 81st Cong.,
2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the
District Court for the Southern District of New York in this case, that
740
rounding the unauthorized possession of such items are self-evident,
and it is deemed advisable to require their surrender in such a
case, regardless of demand, especially since their unauthorized
possession may be unknown to the authorities who would otherwise
make the demand." S. Rep. No. 2369, 81st Cong., 2d Sess.,
9 (1950). Of course, in the cases before us, the unpublished documents
have been demanded by the United States and their import
has been made known at least to counsel for the newspapers involved.
In Gorin v. United States, 312 U. S. 19, 28 (1941), the
words "national defense" as used in a predecessor of § 793 were
held by a unanimous court to have "a well understood connotation"-
a "generic concept of broad connotations, referring to the
military and naval establishments and the related activities of
national preparedness"-and to be "sufficiently definite to apprise
the public of prohibited activities" and to be consonant with due
process. 312 U. S., at 28. Also, as construed by the Court in
Gorin, information "connected with the national defense" is obviously
not limited to that threatening "grave and irreparable" injury
to the United States. 10
It is thus clear that Congress has addressed itself to the problems
of protecting the security of the country and the national
defense from unauthorized disclosure of potentially damaging
information.
Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 585-586 (1952); see also id., at 593-628 (Frankfurter,
J., concurring). It has not, however, authorized the injunctive
remedy against threatened publication. It has apparently been satisfied
to rely on criminal sanctions and their deterrent effect on the
responsible as well as the irresponsible press. I am not, of course,
saying that either of these newspapers has yet committed a crime
or that either would commit a crime if they published all the
material now in their possession. That matter must await resoluin
prosecuting for communicating or withholding a "document" as
contrasted with similar action with respect to "information" the
Government
need not prove an intent to injure the United States or to benefit a
foreign nation but only willful and knowing conduct. The District Court
relied on Gorin v. United States, 312 U.S. 19 (1941). But that case
arose under other parts of the predecessor to § 793, see 312 U.S., at
21-22-parts that imposed different intent standards not repeated in
§ 793(d) or § 793(e). Cf. 18 U.S.C. §§ 793(a), (b), and (c). Also, from
the fact of subsection (e) and from the context of the act of which it
was
a part, it seems undeniable that a newspaper, as well as others
unconnected
with the Government, are vulnerable to prosecution under § 793
(e) if they communicate or withhold the materials covered by that
section.
The District Court ruled that "communication" did not reach
publication by a newspaper of documents relating to the national
defense.
I intimate no views on the correctness of that conclusion. But
neither communication nor publication is necessary to violate the
subsection.
10 Also relevant is 18 U.S.C. § 794. Subsection (b) thereof forbids in
time of war the collection or publication, with intent that it shall be
communicated to the enemy, any information with respect to the movements
of military forces, "or with respect to the plans or conduct ...
of any naval or military operations ... or any other information
relating
to the public defense, which might be useful to the enemy "
741
tion in the context of a criminal proceeding if one is instituted by
the United States. In that event, the issue of guilt or innocence
would be determined by procedures and standards quite different
from those that have purported to govern these injunctive proceedings.
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in this case is
whether in a suit by the United States, "the First Amendment
bars a court from prohibiting a newspaper from publishing material
whose disclosure would pose a grave and immediate danger to
the security of the United States." Brief of the Government, at 6.
With al1 due respect, I believe the ultimate issue in this case is
even more basic than the one posed by the Solicitor General. The
issue is whether this Court or the Congress has the power to make
law.
In this case there is no problem concerning the President's power
to classify information as "secret" or "top secret." Congress has
specifical1y recognized Presidential authority, which has been
formally exercised in Executive Order 10501, to classify documents
and information. See, e. g., 18 U. S. C. § 798; 50 U. S. C.
§ 783.1 Nor is there any issue here regarding the President's
power as Chief Executive and Commander-in-Chief to protect
national security by disciplining employees who disclose information
and by taking precautions to prevent leaks.
The problem here is whether in this particular case the Executive
Branch has authority to invoke the equity jurisdiction of the
courts to protect what it believes to be the national interest. See
In re Debs, 158 U. S. 564, 584 (1895). The Government argues
that in addition to the inherent power of any government to
protect itself, the President's power to conduct foreign affairs and
his position as Commander-in-Chief give him authority to impose
censorship on the press to protect his ability to deal effectively with
foreign nations and to conduct the military affairs of the country.
Of course, it is beyond cavil that the President has broad powers
by virtue of his primary responsibility for the conduct of our
foreign affairs and his position as Commander-in-Chief. Chicago
& Southern Air Lines, Inc. v. Waterman Corp., 333 U. S. 103
(1948); Hirabayashi v. United States, 320 U. S. 81, 93 (1943);
United States v. Curtiss-Wright Export Co., 299 U. S. 304 (1936).2
And in some situations it may be that under whatever inherent
powers the Government may have, as well as the implicit authority
derived from the President's mandate to conduct foreign affairs
and to act as Commander-in-Chief there is a basis for the invocation
of the equity jurisdiction of this Court as an aid to prevent
the publication of material damaging to "national security," however
that term may be defined.
I See n. 3, infra.
2 But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952).
742
It would, however, be utterly inconsistent with the concept of
separation of power for this Court to use its power of contempt to
prevent behavior that Congress has specifically declined to prohibit.
There would be a similar damage to the basic concept of these
coequal branches of Government if when the Executive has
adequate authority granted by Congress to protect "national security"
it can choose instead to invoke the contempt power of a court
to enjoin the threatened conduct. The Constitution provides that
Congress shall make laws, the President execute laws, and courts
interpret law. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952). It did not provide for government by injunction in
which the courts and the Executive can "make law" without regard
to the action of Congress. It may be more convenient for the
Executive if it need only convince a judge to prohibit conduct
rather than to ask the Congress to pass a law and it may be more
convenient to enforce a contempt order than seek a criminal
conviction in a jury trial. Moreover, it may be considered politically
wise to get a court to share the responsibility for arresting those
who the Executive has probable cause to believe are violating
the law. But convenience and political considerations of the moment
do not justify a basic departure from the principles of our
system of government.
In this case we are not faced with a situation where Congress
has failed to provide the Executive with broad power to protect
the Nation from disclosure of damaging state secrets. Congress
has on several occasions given extensive consideration to the
problem of protecting the military and strategic secrets of the
United States. This consideration has resulted in the enactment of
statutes making it a crime to receive, disclose, communicate, withhold,
and publish certain documents, photographs, instruments,
appliances, and information. The bulk of these statutes are found
to chapter 37 of U. S. c., Title 18, entitled Espionage and Censorship.
3 In that chapter, Congress has provided penalties ranging
from a $10,000 fine to death for violating the various statutes.
3 There are several other statutory provisions prohibiting and punishing
the dissemination of information, the disclosure of which Congress
thought sufficiently imperiled national security to warrant that result.
These include 42 U. S. C. §§ 2161 through 2166 relating to the authority
of the Atomic Energy Commission to classify and declassify "Restricted
Data" ["Restricted Data" is a term of art employed uniquely by the
Atomic Energy Act]. Specifically, 42 U. S. C. § 2162 authorizes the
Atomic Energy Commission to classify certain information. 42 U. S. C.
§ 2274, subsection (a) provides penalties for a person who
"communicates,
transmits, or discloses ... with intent to injure the United
States or an intent to secure an advantage to any foreign nation .... "
"Restricted Data." Subsection (b) of § 2274 provides lesser penalties
for
one who "communicates, transmits, or discloses" such information "with
reason to believe such data will be utilized to injure the United States
or to secure an advantage to any foreign nation .... " Other sections
of Title 42 of the U. S. C. dealing with atomic energy prohibit and
punish
acquisition, removal, concealment, tampering with, alteration,
mutilation,
or destruction of documents incorporating "Restricted Data" and
provide penalties for employees and former employees of the Atomic
743
Thus it would seem that in order for this Court to issue an
injunction it would require a showing that such an injunction
would enhance the already existing power of the Government to
act. See Bennett v. Laman, 277 N. Y. 368, 14 N. E. 2d 439 (1938).
It is a traditional axiom of equity that a court of equity will not
do a useless thing just as it is a traditional axiom that equity will
not enjoin the commission of a crime. See Z. Chaffe & E. Re,
Equity 935-954 (5th ed. 1967); 1 H. Joyce, Injunctions §§ 58-60a
(1909). Here there has been no attempt to make such a showing.
The Solicitor General does not even mention in his brief whether
the Government considers there to be probable cause to believe
a crime has been committed or whether there is a conspiracy to
commit future crimes.
If the Government had attempted to show that there was no
effective remedy under traditional criminal law, it would have
had to show that there is no arguably applicable statute. Of course,
at this stage this Court could not and cannot determine whether
there has been a violation of a particular statute nor decide the
constitutionality of any statute. Whether a good-faith prosecution
could have been instituted under any statute could, however, be
determined.
At least one of the many statutes in this area seems relevant to
this case. Congress has provided in 18 U. S. C. § 793 (e) that
whoever "having unauthorized possession of, access to, or control
over any document, writing, code book, signal book ... or note
relating to the national defense, or information relating to the
national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers,
transmits ... the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the officer
or employee of the United States entitled to receive it ... shall
be fined not more than $10,000 or imprisoned not more than ten
years, or both." 18 U. S. C. § 793 (e). Congress has also made it a
crime to conspire to commit any of the offenses listed in 18 U. S. C.
§ 793 (e).
It is true that Judge Gurfein found that Congress had not made
it a crime to publish the items and material specified in § 793 (e):
Energy Commission, the armed services, contractors and licensees of the
Atomic Energy Commission. 42 U. S. C. §§ 2276,2277. Title 50 U. S. C.
Appendix § 781 (part of the National Defense Act of 1941, as amended,
55 Stat. 236) prohibits the making of any sketch or other representation
of military installations or any military equipment located on any
military
installation, as specified; and indeed Congress in the National Defense
Act conferred jurisdiction on federal district courts over civil
actions "to enjoin any violation" thereof. 50 U. S. C. App. § 1152. 50
U. S. C. § 783 (b) makes it unlawful for any officers or employees of
the
United States or any corporation which is owned by the United States
to communicate material which has been "classified" by the President to
any person whom that governmental employee knows or has reason to
believe is an agent or representative of any foreign government or any
Communist organization.
744
He found that the words "communicates, delivers, transmits ... "
did not refer to publication of newspaper stories. And that view
has some support in the legislative history and conforms with the
past practice of using the statute only to prosecute those charged
with ordinary espionage. But see 103 Congo Rec. 10449 (remarks
of Sen. Humphrey). Judge Gurfein's view of the statute is not,
however, the only plausible construction that could be given. See
my Brother WHITE'S concurring opinion.
Even if it is determined that the Government could not in good
faith bring criminal prosecutions against the New York Times
and the Washington Post, it is clear that Congress has specifically
rejected passing legislation that would have clearly given the
President the power he seeks here and made the current activity
of the newspapers unlawful. When Congress specifically declines
to make conduct unlawful it is not for this Court to rededde those
issues-to overrule Congress. See Youngstown Sheet & Tube v.
Sawyer, 345 U. S. 579 (1952).
On at least two occasions Congress has refused to enact legislation
that would have made the conduct engaged in here unlawful
and given the President the power that he seeks in this case. In
1917 during the debate over the original Espionage Act, still the
basic provisions of § 793, Congress rejected a proposal to give the
President in time of war or threat of war authority to directly
prohibit by proclamation the publication of information relating to
national defense that might be useful to the enemy. The proposal
provided that:
"During any national emergency resulting from a war to
which the United States is a party, or from threat of such
a war, the President may, by proclamation, prohibit the
publishing or communicating of, or the attempting to publish
or communicate any information relating to the national
defense which, in his judgment, is of such character that
it is or might be useful to the enemy. Whoever violates any
such prohibition shall be punished by a fine of not more
than $10,000 or by imprisonment for not more than 10 years,
or both: Provided, That nothing in this section shall be construed
to limit or restrict any discussion, comment, or criticism
of the acts or policies of the Government or its
representatives or the publication of the same." 55 Congo
Rec.1763.
Congress rejected this proposal after war against Germany had
been declared even though many believed that there was a grave
national emergency and that the threat of security leaks and
espionage were serious. The Executive has not gone to Congress
and requested that the decision to provide such power be reconsidered.
Instead, the Executive comes to this Court and asks that
it be granted the power Congress refused to give.
In 1957 the United States Commission on Government Security
745
found that "[a]irplane journals, scientific periodicals, and even
the daily newspaper have featured articles containing information
and other data which should have been deleted in whole or in part
for security reasons." In response to this problem the Commission,
which was chaired by Senator Cotton, proposed that "Congress
enact legislation making it a crime for any person willfully to
disclose without proper authorization, for any purpose whatever,
information classified 'secret' or 'top secret,' knowing, or having
reasonable grounds to believe, such information to have been so
classified." Report of Commission on Government Security 619-
620 (1957). After substantial floor discussion on the proposal, it
was rejected. See 103 Congo Rec. 10447-10450. If the proposal
that Senator Cotton championed on the floor had been enacted,
the publication of the documents involved here would certainly
have been a crime. Congress refused, however, to make it a
crime. The Government is here asking this Court to remake that
decision. This Court has no such power.
Either the Government has the power under statutory grant to
use traditional criminal law to protect the country or, if there is
no basis for arguing that Congress has made the activity a crime,
it is plain that Congress has specifically refused to grant the
authority
the Government seeks from this Court. In either case this
Court does not have authority to grant the requested relief. It is
not for this Court to fling itself into every breach perceived by
some Government official nor is it for this Court to take on itself
the burden of enacting law, especially law that Congress has refused
to pass.
I believe that the judgment of the United States Court of Appeals
for the District of Columbia should be affirmed and the
judgment of the United States Court of Appeals for the Second
Circuit should be reversed insofar as it remands the case for
further hearings.
Dissenting Opinions
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior restraint
against expression, that from the time of Near V. Minnesota, 283
U. S. 697 (1931), until recently in Organization for a Better
Austin V. Keefe,-U. S.-(1971), we have had little occasion to be
concerned with cases involving prior restraints against news reporting
on matters of public interest. There is, therefore, little variation
among the members of the Court in terms of resistance to prior
restraints against publication. Adherence to this basic constitutional
principle, however, does not make this case a simple one. In this
case, the imperative of a free and unfettered press comes into collision
with another imperative, the effective functioning of a complex
modern government and specifically the effective exercise of
certain constitutional powers of the Executive. Only those who
view the First Amendment as an absolute in all circumstances-a
746
view I respect, but reject-can find such a case as this to be simple
or easy.
This case is not simple for another and more immediate reason.
We do not know the facts of the case. No District Judge knew all
the facts. No Court of Appeals judge knew all the facts. No
member of this Court knows all the facts.
Why are we in this posture, in which only those judges to whom
the First Amendment is absolute and permits of no restraint in any
circumstances or for any reason, are really in a position to act?
I suggest we are in this posture because these cases have been
conducted in unseemly haste. MR. JUSTICE HARLAN covers the
chronology of events demonstrating the hectic pressures under
which these cases have been processed and I need not restate them.
The prompt setting of these cases reflects our universal abhorrence
of prior restraint. But prompt judicial action does not mean unjudicial
haste.
Here, moreover, the frenetic haste is due in large part to the
manner in which the Times proceeded from the date it obtained
the purloined documents. It seems reasonably clear now that the
haste precluded reasonable and deliberate judicial treatment of
these cases and was not warranted. The precipitous action of this
Court aborting a trial not yet completed is not the kind of judicial
conduct which ought to attend the disposition of a great issue.
The newspapers make a derivative claim under the First Amendment;
they denominate this right as the public right-to-know; by
implication, the Times asserts a sole trusteeship of that right by
virtue of its journalist "scoop." The right is asserted as an absolute.
Of course, the First Amendment right itself is not an absolute, as
Justice Holmes so long ago pointed out in his aphorism concerning
the right to shout of fire in a crowded theater. There are other
exceptions, some of which Chief Justice Hughes mentioned by way
of example in Near v. Minnesota. There are no doubt other exceptions
no one has had occasion to describe or discuss. Conceivably
such exceptions may be lurking in these cases and would have
been flushed had they been properly considered in the trial courts,
free from unwarranted deadlines and frenetic pressures. A great
issue of this kind should be tried in a judicial atmosphere conducive
to thoughtful, reflective deliberation, especially when haste,
in terms of hours, is unwarranted in light of the long period the
Times, by its own choice, deferred publication.
It is not disputed that the Times has had unauthorized possession
of the documents for three to four months, during which
it has had its expert analysts studying them, presumably digesting
them and preparing the material for publication. During all of
this time, the Times, presumably in its capacity as trustee of the
public's "right to know," has held up publication for purposes it
considered proper and thus public knowledge was delayed. No
doubt this was for a good reason; the analysis of 7,000 pages of
complex material drawn from a vastly greater volume of material
747
would inevitably take time and the wntmg of good news stories
takes time. But why should the United States Government, from
whom this information was illegally acquired by someone, along
with all the counsel, trial judges, and appellate judges be placed
under needless pressure? After these months of deferral, the
acknowledged right-to-know has somehow and suddenly become a right
that must be vindicated instanter.
Would it have been unreasonable, since the newspaper could
anticipate the government's objections to release of secret material,
to give the government an opportunity to review the entire collection
and determine whether agreement could be reached on
publication? Stolen or not, if security was not in fact jeopardized,
much of the material could no doubt have been declassified, since
it spans a period ending in 1968. With such an approach-one
that great newspapers have in the past practiced and stated editorially
to be the duty of an honorable press-the newspapers and
government might well have narrowed the area of disagreement
as to what was and was not publishable, leaving the remainder
to be resolved in orderly litigation if necessary. To me it is hardly
believable that a newspaper long regarded as a great institution
in American life would fail to perform one of the basic and simple
duties of every citizen with respect to the discovery or possession
of stolen property or secret government documents. That
duty, I had thought-perhaps naively-was to report forthwith,
to responsible public officers. This duty rests on taxi drivers,
Justices and the New York Times. The course followed by the
Times, whether so calculated or not, removed any possibility of
orderly litigation of the issues. If the action of the judges up to now
has been correct, that result is sheer happenstance.!
Our grant of the writ before final judgment in the Times case
aborted the trial in the District Court before it had made a complete
record pursuant to the mandate of the Court of Appeals,
Second Circuit.
The consequence of all this melancholy series of events is that
we literally do not know what we are acting on. As I see it we
have been forced to deal with litigation concerning rights of great
magnitude without an adequate record, and surely without time
for adequate treatment either in the prior proceedings or in this
Court. It is interesting to note that counsel in oral argument before
this Court were frequently unable to respond to questions on
factual points. Not surprisingly they pointed out that they had
been working literally "around the clock" and simply were unable
to review the documents that give rise to these cases and were
not familiar with them. This Court is in no better posture. I
1 Interestingly the Times explained its refusal to allow the government
to examine its own purloined documents by saying in substance this
might compromise their sources and informants! The Times thus asserts
a right to guard the secrecy of its sources while denying that the
Government
of the United States has that power.
748
agree with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN
but I am not prepared to reach the merits.2
I would affirm the Court of Appeals for the Second Circuit and
allow the District Court to complete the trial aborted by our grant
of certiorari meanwhile preserving the status quo in the Post case.
I would direct that the District Court on remand give priority to
the Times case to the exclusion of all other business of that court
but I would not set arbitrary deadlines.
I should add that I am in general agreement with much of what
MR. JUSTICE WHITE has expressed with respect to penal sanctions
concerning communication or retention of documents or information
relating to the national defense.
We all crave speedier judicial processes but when judges are
pressured as in these cases the result is a parody of the judicial
process.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
These cases forcefully call to mind the wise admonition of Mr.
Justice Holmes, dissenting in Northern Securities Co. v. United
States, 193 U. S. 197,400-401 (1904):
"Great cases like hard cases make bad law. For great
cases are called great, not by reason of their real importance
in shaping the law of the future, but because of some accident
of immediate overwhelming interest which appeals
to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before which
even well settled principles of law will bend."
With all respect, I consider that the Court has been almost
irresponsibly
feverish in dealing with these cases.
Both the Court of Appeals for the Second Circuit and the Court
of Appeals for the District of Columbia Circuit rendered judgment
on June 23. The New York Times' petition for certiorari, its
motion for accelerated consideration thereof, and its application
for interim relief were filed in this Court on June 24 at about 11
a. m. The application of the United States for interim relief in the
Post case was also filed here on June 24, at about 7: 15 p. m. This
Court's order setting a hearing before us on June 26 at 11 a. m., a
course which I joined only to avoid the possibility of even more
peremptory action by the Court, was issued Jess than 24 hours
2 With respect to the question of inherent power of the Executive to
classify papers, records and documents as secret, or otherwise
unavailable
for public exposure, and to secure aid of the courts for enforcement,
there may be an analogy with respect to this Court. No statute
gives this Court express power to establish and enforce the utmost
security measures for the secrecy of our deliberations and records. Yet
I have little doubt as to the inherent power of the Court to protect the
confidentiality of its internal operations by whatever judicial measures
may be required.
749
before. The record in the Post case was filed with the Clerk
shortly before I p. m. on June 25; the record in the Times case did
not arrive until 7 or 8 o'clock that same night. The briefs of the
parties were received less than two hours before argument on
June 26.
This frenzied train of events took place in the name of the presumption
against prior restraints created by the First Amendment.
Due regard for the extraordinarily important and difficult questions
involved in these litigations should have led the Court to
shun such a precipitate timetable. In order to decide the merits of
these cases properly, some or all of the following questions should
have been faced:
I. Whether the Attorney General is authorized to bring these
suits in the name of the United States. Compare In re Debs, 158
U. S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579 (1952). This question involves as well the construction
and validity of a singularly opaque statute-the Espionage
Act, 18 U. S. C. § 793 (e).
2. Whether the First Amendment permits the federal courts to
enjoin publication of stories which would present a serious threat
to national security. See Near v. Minnesota, 283 U. S. 697, 716
(1931) (dictum).
3. Whether the threat to publish highly secret documents is of
itself a sufficient implication of national security to justify an
injunction
on the theory that regardless of the contents of the documents
harm enough results simply from the demonstration of such
a breach of secrecy.
4. Whether the unauthorized disclosure of any of these particular
documents would seriously impair the national security.
5. What weight should be given to the opinion of high officers in
the Executive Branch of the Government with respect to questions
3 and 4.
6. Whether the newspapers are entitled to retain and use the
documents notwithstanding the seemingly uncontested facts that
the documents, or the originals of which they are duplicates, were
purloined from the Government's possession and that the newspapers
received them with knowledge that they had been feloniously
acquired. Cf. Liberty Lobby, Inc. v. Pearson, 390 F. 2d 489
(CADC 1968).
7. Whether the threatened harm to the national security or the
Government's possessory interest in the documents justifies the
issuance of an injunction against publication in light ofa.
The strong First Amendment policy against prior restraints on
publication;
b. The doctrine against enjoining conduct in violation of criminal
statutes; and
c. The extent to which the materials at issue have apparently
already been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment; the
potential consequences of erroneous decision are enormous. The
750
time which has been available to us, to the lower courts,':' and to
the parties has been wholly inadequate for giving these cases the
kind of consideration they deserve. It is a reflection on the stability
of the judicial process that these great issues-as important
as any that have arisen during my time on the Court-should
have been decided under the pressures engendered by the torrent
of publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from
the opinion and judgments of the Court. Within the severe limitations
imposed by the time constraints under which I have· been
required to operate, I can only state my reasons in telescoped form,
even though in different circumstances I would have felt constrained
to deal with the cases in the fuller sweep indicated above.
It is a sufficient basis for affirming the Court of Appeals for the
Second Circuit in the Times litigation to observe that its order
must rest on the conclusion that because of the time elements the
Government had not been given an adequate opportunity to present
its case to the District Court. At the least this conclusion was not
an abuse of discretion.
In the Post litigation the Government had more time to prepare;
this was apparently the basis for the refusal of the Court of
Appeals for the District of Columbia Circuit on rehearing to conform
its judgment to that of the Second Circuit. But I think there
is another and more fundamental reason why this judgment cannot
stand-a reason which also furnishes an additional ground for not
reinstating the judgment of the District Court in the Times litigation,
set aside by the Court of Appeals. It is plain to me that the
scope of the judicial function in passing upon the activities of the
Executive Branch of the Government in the field of foreign affairs
is very narrowly restricted. This view is, I think, dictated by the
concept of separation of powers upon which our constitutional
system rests.
In a speech on the floor of the House of Representatives, Chief
Justice John Marshall, then a member of that body, stated:
"The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations."
Annals, 6th Cong., co\. 613 (1800).
From that time, shortly after the founding of the Nation, to this,
there has been no substantial challenge to this description of the
scope of executive power. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 319-321 (1936), collecting authorities.
* The hearing in the Post case before Judge Gesell began at 8 a. m.
on June 21, and his decision was rendered, under the hammer of a
deadline imposed by the Court of Appeals, shortly before 5 p. In. on
the same day. The hearing in the Times case before Judge Gurfein was
held on June 18 and his decision was rendered on June 19. The
Government's
appeals in the two cases were heard by the Courts of Appeals
for the District of Columbia and Second Circuits, each court sitting
en bane, on June 22. Each court rendered its decision on the following
afternoon.
751
From this constitutional primacy in the field of foreign affairs,
it seems to me that certain conclusions necessarily follow. Some
of these were stated concisely by President Washington, declining
the request of the House of Representatives for the papers leading
up to the negotiation of the Jay Treaty:
"The nature of foreign negotiations requires caution, and
their success must often depend on secrecy; and even when
brought to a conclusion a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed
or contemplated would be extremely impolitic; for
this might have a pernicious influence on future negotiations,
or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers." 1 J. Richardson,
Messages and Papers of the Presidents 194-195 (1899).
The power to evaluate the "pernicious influence" of premature
disclosure is not, however, lodged in the Executive alone. I agree
that, in performance of its duty to protect the values of the First
Amendment against political pressures, the judiciary must review
the initial Executive determination to the point of satisfying itself
that the subject matter of the dispute does lie within the proper
compass of the President's foreign relations power. Constitutional
considerations forbid "a complete abandonment of judicial control."
Cf. United States v. Reynolds, 345 U. S. 1,8 (1953). Moreover,
the judiciary may properly insist that the determination that
disclosure of the subject matter would irreparably impair the
national security be made by the head of the Executive Department
concerned-here the Secretary of State or the Secretary of Defense-
after actual personal consideration by that officer. This
safeguard is required in the analogous area of executive claims of
privilege for secrets of state. See United States v. Reynolds, supra,
at 8 and n. 20; Duncan v. Cammell, Laird & Co., [1942] A. C. 624,
638 (House of Lords).
But in my judgment the judiciary may not properly go beyond
these two inquiries and redetermine for itself the probable impact
of disclosure on the national security.
"[T]he very nature of executive decisions as to foreign policy
is political, not judicial. Such decisions are wholly confided
by our Constitution to the political departments of the government,
Executive and Legislative. They are delicate, complex,
and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to
the people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility and which has long been
held to belong in the domain of political power not subject
to judicial intrusion or inquiry." Chicago & Southern Air
Lines v. Waterman Steamship Corp., 333 U. S. 103, 111
(1948) (J ackson, J.) .
752
Even if there is some room for the judiciary to override the executive
determination, it is plain that the scope of review must be
exceedingly narrow. I can see no indication in the opinions of
either the Dstrict Court or the Court of Appeals in the Post litigation
that the conclusions of the Executive were given even the
deference owing to an administrative agency, much less that owing
to a co-equal branch of the Government operating within the field
of its constitutional prerogative.
Accordingly, I would vacate the judgment of the Court of
Appeals for the District of Columbia Circuit on this ground and
remand the case for further proceedings in the District Court.
Before the commencement of such further proceedings, due opportunity
should be afforded the Government for procuring from the
Secretary of State or the Secretary of Defense or both an expression
of their views on the issue of national security. The ensuing
review by the District Court should be in accordance with the
views expressed in this opinion. And for the reasons stated above 1
would affirm the judgment of the Court of Appeals for the Second
Circuit.
Pending further hearings in each case conducted under the appropriate
ground rules, I would continue the restraints on publication.
I cannot believe that the doctrine prohibiting prior restraints reaches
to the point of preventing courts from maintaining the status quo
long enough to act responsibly in matters of such national importance
as those involved here.
MR. JUSTICEBLACKMUN.
I join MR. JUSTICE HARLAN in his dissent. I also am in substantial
accord with much that MR. JUSTICE WHITE says, by way of
admonition, in the latter part of his opinion.
At this point the focus is on only the comparatively few documents
specified by the Government as critical. So far as the other
material-vast in amount-is concerned, let it be published and
published forthwith if the newspapers, once the strain is gone
and the sensationalism is eased, still feel the urge so to do.
But we are concerned here with the few documents specified
from the 47 volumes. Almost 70 years ago Mr. Justice Holmes,
dissenting in a celebrated case, observed:
"Great cases like hard cases make bad law. For great cases
are called great, not by reason of their real importance in
shaping the law of the future, but because of some accident
of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure .. " Northern
Securities Co. v. United States, 193 U. S. 197, 400-401
(1904) .
The present cases, if not great, are at least unusual in their posture
and implications, and the Holmes observation certainly has
pertinent application.
753
The New York Times clandestinely devoted a period of three
months examining the 47 volumes that came into its unauthorized
possession. Once it had begun publication of material from those
volumes, the New York case now before us emerged. It immediately
assumed, and ever since has maintained, a frenetic pace and
character. Seemingly, once publication started, the material could
not be made public fast enough. Seemingly, from then on, every
deferral or delay, by restraint or otherwise, was abhorrent and
was to be deemed violative of the First Amendment and of the
public's "right immediately to know." Yet that newspaper stood
before us at oral argument and professed criticism of the Government
for not lodging its protest earlier than by a Monday telegram
following the initial Sunday publication.
The District of Columbia case is much the same.
Two federal district courts, two United States courts of appeals,
and this Court-within a period of less than three weeks from
inception until today-have been pressed into hurried decision of
profound constitutional issues on inadequately developed and
largely assumed facts without the careful deliberation that, hopefully,
should characterize the American judicial process. There
has been much writing about the law and little knowledge and
less digestion of the facts. In the New York case the judges, both
trial and appellate, had not yet examined the basic material when
the case was brought here. In the District of Columbia case, little
more was done, and what was accomplished in this respect was
only on required remand, with the Washington Post, on the excuse
that it was trying to protect its source of information, initially
refusing to reveal what material it actually possessed, and with
the district court forced to make assumptions as to that possession.
With such respect as may be due to the contrary view, this, in
my opinion, is not the way to try a law suit of this magnitude and
asserted importance. It is not the way for federal courts to adjudicate,
and to be required to adjudicate, issues that allegedly
concern the Nation's vital welfare. The country would be none the
worse off were the cases tried quickly, to be sure, but in the customary
and properly deliberative manner. The most recent of the
material, it is said, dates no later than 1968, already about three
years ago, and the Times itself took three months to formulate its
plan of procedure and, thus, deprived its public for that period.
The First Amendment, after all, is only one part of an entire
Constitution. Article II of the great document vests in the Executive
Branch primary power over the conduct of foreign affairs and
places in that branch the responsibility for the Nation's safety.
Each provision of the Constitution is important, and I cannot subscribe
to a doctrine of unlimited absolutism for the First Amendment
at the cost of downgrading other provisions. First Amendment
absolutism has never commanded a majority of this Court.
See, tor example, Near v. Minnesota, 283 U. S. 697, 708 (1931),
and Schenck v. United States, 249 U. S. 47, 52 (1919). What is
needed here is a weighing, upon properly developed standards, of
754
the broad right of the press to print and of the very narrow right
of the Government to prevent. Such standards are not yet developed.
The parties here are in disagreement as to what those
standards should be. But even the newspapers concede that there
are situations where restraint is in order and is constitutional. Mr.
Justice Holmes gave us a suggestion when he said in Schenck,
"It is a question of proximity and degree. When a nation
is at war many things that might be said in time of peace
are such a hindrance to its effort that their utterance will
not be endured so long as men fight and that no Court
could regard them as protected by any constitutional
right." 249 U. S., at 52.
I therefore would remand these cases to be developed expeditiously,
of course, but on a schedule permitting the orderly
presentation of evidence from both sides, with the use of discovery,
if necessary, as authorized by the rules, and with the preparation
of briefs, oral argument and court opinions of a quality better
than has been seen to this point. In making this last statement, I
criticize no lawyer or judge. I know from past personal experience
the agony of time pressure in the preparation of litigation. But
these cases and the issues involved and the courts, including this
one, deserve better than has been produced thus far.
It may well be that if these cases were allowed to develop as
they should be developed, and to be tried as lawyers should try
them and as courts should hear them, free of pressure and panic
and sensationalism, other light would be shed on the situation and
contrary considerations, for me, might prevail. But that is not the
present posture of the litigation.
The Court, however, decides the cases today the other way. I
therefore add one final comment.
I strongly urge, and sincerely hope, that these two newspapers
will be fully aware of their ultimate responsibilities to the United
States of America. Judge Wilkey, dissenting in the District of
Columbia case, after a review of only the affidavits before his
court (the basic papers had not then been made available by either
party), concluded that there were a number of examples of documents
that, if in the possession of the Post, and if published,
"could clearly result in great harm to the nation," and he defined
"harm" to mean "the death of soldiers, the destruction of alliances,
the greatly increased difficulty of negotiation with our enemies,
the inability of our diplomats to negotiate .... " I, for one, have
now been able to give at least some cursory study not only to
the affidavits, but to the material itself. I regret to say that from
this examination I fear that Judge Wilkey's statements have possible
foundation. I therefore share his concern. I hope that damage
already has not been done. If, however, damage has been done,
and if, with the Court's action today, these newspapers proceed to
publish the critical documents and there results therefrom "the
death of soldiers, the destruction of alliances, the greatly increased
755
difficulty of negotiation with our enemies, the inability of our
diplomats
to negotiate," to which list I might add the factors of prolongation
of the war and of further delay in the freeing of United
States prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.
Go to Next Page |