The United States, which brought these actions to enjoin
publication in the New York Times and in the Washington Post of
certain classified material, has not met the "heavy burden of
showing justification for the enforcement of such a [prior]
restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___
U.S.App.D.C. ___, 446 F.2d 1327, affirmed.
Page 403 U. S. 714
PER CURIAM
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
U.S. Decision-Making Process on Viet Nam Policy."
Post,
pp. 942, 943.
"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 U. S.
58,
372 U. S. 70
(1963);
see also Near v. Minnesota, 283 U.
S. 697 (1931). The Government "thus carries a heavy
burden of showing justification for the imposition of such a
restraint."
Organization for a Better Austin v. Keefe,
402 U. S. 415,
402 U. S. 419
(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.
* Together with No. 1885,
United States v. Washington Post
Co. et al., on certiorari to the United States Court of
Appeals for the District of Columbia Circuit.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
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 without oral
argument when the cases were first presented to this Court. I
believe
Page 403 U. S. 715
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 argument,
I agree completely that we must affirm the judgment of the Court of
Appeals for the District of Columbia Circuit 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. [
Footnote
1] They especially feared that the
Page 403 U. S. 716
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 be inviolable. [
Footnote
2]"
(Emphasis added.) The amendments 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
Page 403 U. S. 717
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 Vietnam 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
Page 403 U. S. 718
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 powers and responsibilities to the Executive, and . . .
the First Amendment was not intended to make it impossible for the
Executive to function or to protect the security of the United
States. [
Footnote 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. [
Footnote 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.
[
Footnote 5]
See
concurring opinion of MR. JUSTICE DOUGLAS,
Page 403 U. S. 719
post at
403 U. S.
721-722. 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.
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
Page 403 U. S. 720
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. [
Footnote 6]"
[
Footnote 1]
In introducing the Bill of Rights in the House of
Representatives, Madison said:
"[B]ut 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 Cong. 433. 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.
[
Footnote 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 Cong. 434.
[
Footnote 3]
Tr. of Oral Arg. 76.
[
Footnote 4]
Brief for the United States 13-14.
[
Footnote 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 Cong. 439.
[
Footnote 6]
De Jonge v. Oregon, 299 U. S. 353,
299 U. S.
365.
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 outset that the First Amendment
provides that "Congress shall male no law . . . abridging the
freedom of speech, or of the press." That leaves, in my view, no
room for governmental restraint on the press. [
Footnote 2/1]
There is, moreover, no statute barring the publication by the
press of the material which the Times and the Post seek to use.
Title 18 U.S.C. § 793(e) provides that
"[w]hoever 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, willfully communicates . . . the
same to any person not entitled to receive it . . . [s]hall be
fined
Page 403 U. S. 721
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) applies to
"Whoever, in time of war, with intent that the same shall be
communicated to the enemy, collects, records,
publishes,
or communicates . . . [the disposition of armed forces]."
Section 797 applies to whoever "reproduces,
publishes,
sells, or gives away" photographs of defense installations.
Section 798, relating to cryptography, applies to whoever:
"communicates, furnishes, transmits, or otherwise makes available .
. . or
publishes" the described material. [
Footnote 2/2] (Emphasis added.)
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
United States is a party, or from threat of such a war, the
President may, by proclamation, declare the existence of such
emergency and, 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
Page 403 U. S. 722
enemy."
55 Cong.Rec. 1763. During the debates in the Senate, the First
Amendment was specifically cited, and that provision was defeated.
55 Cong.Rec. 2167.
Judge Gurfein's holding in the
Times case that this Act
does not apply to this case was therefore preeminently 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,
320 U. S. 93.
But the war power stems from a declaration of war. The Constitution
by Art. I, § 8, gives Congress, not the President, power "[t]o
declare War." Nowhere are presidential wars authorized. We need not
decide, therefore, what leveling effect the war power of Congress
might have.
These disclosures [
Footnote 2/3]
may have a serious impact. But that is no basis for sanctioning a
previous restraint on
Page 403 U. S. 723
the press. As stated by Chief Justice Hughes in
Near v.
Minnesota, 283 U. S. 697,
283 U. S.
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, 402 U. S. 415,
402 U. S. 419,
"[a]ny 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 the 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
Page 403 U. S. 724
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 embarrassing to the powers-that-be.
See
T. Emerson, The System of Freedom of Expression, c. V (1970); Z.
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 "uninhibited, robust, and wide-open"
debate.
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S.
269-270.
I would affirm the judgment of the Court of Appeals in the
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.
[
Footnote 2/1]
See Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 267
(dissenting opinion of MR. JUSTICE BLACK), 284 (my dissenting
opinion);
Roth v. United States, 354 U.
S. 476,
354 U. S. 508
(my dissenting opinion which MR. JUSTICE BLACK joined);
Yates
v. United States, 354 U. S. 298,
354 U. S. 339
(separate opinion of MR. JUSTICE BLACK which I joined);
New
York Times Co. v. Sullivan, 376 U. S. 254,
376 U. S. 293
(concurring opinion of MR. JUSTICE BLACK which I joined);
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 80 (my
concurring opinion which MR. JUSTICE BLACK joined).
[
Footnote 2/2]
These documents 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.
[
Footnote 2/3]
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.
MR. JUSTICE BRENNAN, concurring.
I
I write separately in these cases only to emphasize what should
be apparent: that our judgments in the present cases may not be
taken to indicate the propriety, in the future, of issuing
temporary stays and restraining
Page 403 U. S. 725
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 assure 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 that 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
Page 403 U. S. 726
may result.* 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 overridden. 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,
249 U. S. 52
(1919), during which times
"[n]o 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,
283 U. S. 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.
"[T]he chief purpose of [the First Amendment's] guaranty [is] to
prevent previous restraints upon publication."
Near v.
Minnesota, supra, at
283 U. S. 713.
Thus, only governmental allegation and proof that publication must
inevitably, directly,
Page 403 U. S. 727
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 not less
so because that restraint was justified as necessary to afford the
courts 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.
*
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."
Roth v. United
States, 354 U. S. 476,
354 U. S. 481
(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 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.
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 [
Footnote 3/1] and Judicial [
Footnote 3/2] branches, 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
Page 403 U. S. 728
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. [
Footnote 3/3] If the Constitution gives the
Executive
Page 403 U. S. 729
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 -- as a matter of sovereign prerogative, and not as a
matter of law as the courts know law -- through the promulgation
and enforcement of executive regulations, to protect
Page 403 U. S. 730
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.
[
Footnote 3/1]
The President's power to make treaties and to appoint
ambassadors is, of course, limited by the requirement of Art. II, §
2, 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 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.
[
Footnote 3/2]
See Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U. S. 103;
Hirabayashi v. United States, 320 U. S.
81;
United States v. Curtiss-Wright Corp.,
299 U. S. 304;
cf. Mora v. McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862,
cert. denied, 389 U. S. 934.
[
Footnote 3/3]
"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,
299 U. S.
320.
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
Page 403 U. S. 731
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. [
Footnote 4/1] 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 that it must meet to warrant an injunction
against publication in these cases, at least in the absence of
express and appropriately limited congressional authorization for
prior restraints in circumstances such as these.
Page 403 U. S. 732
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;
[
Footnote 4/2] 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 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
Page 403 U. S. 733
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
Page 403 U. S. 734
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.
[
Footnote 4/3] Congress at that
time was unwilling to clothe the President with such far-reaching
powers to monitor the press, and those opposed to this part of the
legislation assumed that a necessary concomitant of such power was
the power to "filter out the news to the people through some man."
55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same
members of Congress appeared to have little doubt that newspapers
would be subject to criminal prosecution if they insisted on
publishing information of the type Congress had itself determined
should not be revealed. Senator Ashurst, for example, was quite
sure that the editor of such a newspaper
"should be punished if he did publish information as to the
movements of the fleet, the troops, the aircraft, the location of
powder factories, the location of defense works, and all that sort
of thing."
Id. at 2009. [
Footnote
4/4]
Page 403 U. S. 735
The Criminal Code contains numerous provisions potentially
relevant to these cases. Section 797 [
Footnote 4/5] makes it a crime to publish certain
photographs or drawings of military installations. Section 798,
[
Footnote 4/6] also in precise
language, proscribes knowing and willful publication of any
classified information concerning the cryptographic systems
Page 403 U. S. 736
or communication intelligence activities of the United States,
as well as any information obtained from communication intelligence
operations. [
Footnote 4/7] 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
Page 403 U. S. 737
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)
[
Footnote 4/8] makes it a criminal
act for any unauthorized possessor of a document "relating to the
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 preexisting law provided
no
Page 403 U. S. 738
penalty for the unauthorized possessor unless demand for the
documents was made. [
Footnote
4/9]
"The dangers surrounding the unauthorized possession of such
items are self-evident,
Page 403 U. S. 739
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, pt. 1, 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,
312 U. S. 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"
Page 403 U. S. 740
and to be consonant with due process. 312 U.S. at
312 U. S. 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. [
Footnote 4/10]
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,
343 U. S.
585-586 (1952);
see also id. at
343 U. S.
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 it published all the material now in its
possession. That matter must await resolution 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.
[
Footnote 4/1]
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
who 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,
395 U. S.
616-620 (1969). Article 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.
[
Footnote 4/2]
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."
[
Footnote 4/3]
"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 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 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 Cong.Rec. 2100.
[
Footnote 4/4]
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 Cong.Rec. 2005.
[
Footnote 4/5]
Title 18 U.S.C. § 797 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."
[
Footnote 4/6]
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"
"(3) concerning the communication intelligence activities of the
United States or any foreign government; or"
"(4) obtained by the process 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."
[
Footnote 4/7]
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 nonemployees 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. 111,
81st Cong., 1st Sess. (1949).
[
Footnote 4/8]
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 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;"
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; S.Rep. No. 239,
pt. 1, 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."
[
Footnote 4/9]
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. 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, pt. 1, 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, in 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
312 U. S. 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 face 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.
[
Footnote 4/10]
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, of 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. . . ."
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases is
whether, in a suit by the United States, "the First Amendment bars
a court from prohibiting a newspaper
Page 403 U. S. 741
from publishing material whose disclosure would pose a 'grave
and immediate danger to the security of the United States.' " Brief
for the United States 7. With all due respect, I believe the
ultimate issue in these cases 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 these cases, there is no problem concerning the President's
power to classify information as "secret" or "top secret." Congress
has specifically recognized Presidential authority, which has been
formally exercised in Exec.Order 10501 (1953), to classify
documents and information.
See, e.g., 18 U.S.C. § 798; 50
U.S.C. § 783. [
Footnote 5/1] 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 these particular cases, 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,
158 U. S. 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 v. Waterman S.S. Corp., 333 U.
S. 103 (1948);
Hirabayashi v. United States,
320 U. S. 81,
320 U. S. 93
(1943);
United States v.
Curtiss
Page 403 U. S. 742
Wright Corp., 299 U. S. 304
(1936). [
Footnote 5/2] 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.
It would, however, be utterly inconsistent with the concept of
separation of powers 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 co-equal branches of Government if, when the Executive Branch
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 laws.
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 Branch can "make law" without regard
to the action of Congress. It may be more convenient for the
Executive Branch if it need only convince a judge to prohibit
conduct, rather than ask the Congress to pass a law, and it may be
more convenient to enforce a contempt order than to 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 Branch has probable cause to
believe are violating the law. But convenience and political
considerations of the
Page 403 U. S. 743
moment do not justify a basic departure from the principles of
our system of government.
In these cases, 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 is found in chapter 37 of
U.S.C. Title 18, entitled Espionage and Censorship. [
Footnote 5/3] In that chapter,
Page 403 U. S. 744
Congress has provided penalties ranging from a $10,000 fine to
death for violating the various statutes.
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 exiting 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. Chafee &
E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions §§
580a (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 that there is 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 or decide the
constitutionality of any statute. Whether a good faith prosecution
could have been instituted under any statute could, however, be
determined.
Page 403 U. S. 745
At least one of the many statutes in this area seems relevant to
these cases. 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 . .
. [s]hall be fined not more than $10,000 or imprisoned not more
than ten years, or both."
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).
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 Cong.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
Page 403 U. S. 746
to redecide those issues -- to overrule Congress.
See
Youngstown Sheet & Tube Co. v. Sawyer, 343 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, declare the existence of such
emergency and, 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 Cong.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 was serious. The Executive Branch has
not gone to Congress and requested that the decision to provide
such power be reconsidered. Instead,
Page 403 U. S. 747
the Executive Branch 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
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 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 Cong.Rec. 10447-10450. If the proposal
that Sen. 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 a law that
Congress has refused to pass.
I believe that the judgment of the United States Court of
Appeals for the District of Columbia Circuit should
Page 403 U. S. 748
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.
[
Footnote 5/1]
See 403
U.S. 713fn5/3|>n.3,
infra.
[
Footnote 5/2]
But see Kent v. Dulles, 357 U.
S. 116 (1958);
Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579
(1952).
[
Footnote 5/3]
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. Title 42 U.S.C. § 2274,
subsection (a), provides penalties for a person who
"communicates, transmits, or discloses [restricted data] . . .
with intent to injure the United States or with intent to secure an
advantage to any foreign nation. . . ."
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 United States Code 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 Energy Commission,
the armed services, contractors and licensees of the Atomic Energy
Commission. Title 42 U.S.C. §§ 2276, 2277. Title 50 U.S.C.App. §
781, 56 Stat. 390, 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 of 1940, 54 Stat. 676, as
amended, 56 Stat. 179, conferred jurisdiction on federal district
courts over civil actions "to enjoin any violation" thereof. 50
U.S.C.App. § 1152(6). Title 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
who that governmental employee knows or has reason to believe is an
agent or representative of any foreign government or any Communist
organization.
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, 402 U. S. 415
(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 these cases simple. In these
cases, 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 view I respect, but reject -- can find such
cases as these to be simple or easy.
These cases are not simple for another and more immediate
reason. We do not know the facts of the cases. 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
Page 403 U. S. 749
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 precipitate action of this Court
aborting trials not yet completed is not the kind of judicial
conduct that 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 journalistic "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 "fire" in a crowded theater
if there was no fire. 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. An issue of this importance
should be tried and heard 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. [
Footnote 6/1]
Page 403 U. S. 750
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 would
inevitably take time, and the writing 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 alleged
"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
Page 403 U. S. 751
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 issue. If the action
of the judges up to now has been correct, that result is sheer
happenstance. [
Footnote 6/2]
Our grant of the writ of certiorari 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 for the 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 on both sides, 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
Page 403 U. S. 752
were not familiar with them. This Court is in no better posture.
I agree generally with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN,
but I am not prepared to reach the merits. [
Footnote 6/3]
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 function.
[
Footnote 6/1]
As noted elsewhere, the Times conducted its analysis of the 47
volumes of Government documents over a period of several months,
and did so with a degree of security that a government might envy.
Such security was essential, of course, to protect the enterprise
from others. Meanwhile, the Times has copyrighted its material, and
there were strong intimations in the oral argument that the Times
contemplated enjoining its use by any other publisher in violation
of its copyright. Paradoxically, this would afford it a protection,
analogous to prior restraint, against all others -- a protection
the Times denies the Government of the United States.
[
Footnote 6/2]
Interestingly, the Times explained its refusal to allow the
Government to examine its own purloined documents by saying in
substance this might compromise
its 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.
[
Footnote 6/3]
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.
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,
193 U. S.
400-401 (1904):
"Great cases, like hard cases, make bad law. For great cases are
called great not by reason of their
Page 403 U. S. 753
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 less than 24
hours before. The record in the
Post case was filed with
the Clerk shortly before 1 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:
1. Whether the Attorney General is authorized to bring these
suits in the name of the United States.
Compare
Page 403 U. S. 754
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,
283 U. S. 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, 129
U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 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 of --
a. The strong First Amendment policy against prior restraints on
publication;
Page 403 U. S. 755
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
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
Page 403 U. S. 756
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."
10 Annals of Cong. 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 Corp., 299 U.
S. 304,
299 U. S.
319-321 (1936), collecting authorities.
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;
Page 403 U. S. 757
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
(1896).
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,
345 U. S. 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
id. at
345 U. S. 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
Page 403 U. S. 758
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,
333 U. S. 111
(1948) (Jackson, J.).
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 District 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, I 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
Page 403 U. S. 759
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.
* 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.m. 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 banc, on June 22. Each court
rendered its decision on the following afternoon.
MR. JUSTICE BLACKMUN, dissenting.
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. . . ."
Northen Securities Co. v. United States, 193 U.
S. 197,
193 U. S.
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.
The New York Times clandestinely devoted a period of three
months to examining the 47 volumes that came into its unauthorized
possession. Once it had begun publication
Page 403 U. S. 760
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, one would hope, 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 lawsuit 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
Page 403 U. S. 761
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, for example, Near v. Minnesota, 283 U.
S. 697,
283 U. S. 708
(1931), and
Schenck v. United States, 249 U. S.
47,
249 U. S. 52
(1919). What is needed here is a weighing, upon properly developed
standards, of 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
249 U. S.
52.
I therefore would remand these cases to be developed
expeditiously, of course, but on a schedule permitting the
Page 403 U. S. 762
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
Page 403 U. S. 763
his concern. I hope that damage has not already 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 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.