*1 713- STATES v. UNITED TIMES CO. YORK NEW 30, 1971* June 26, 1971 Decided Argued June 1873. No. petitioner for cause Bickel argued the Alexander M. E. William were brief on the him 1873. With No.' McKay.. J. Hegarty and Lawrence for the cause argued General Gnswold Solicitor were him on brief With both cases. States in United M. Daniel and General Mardian Attorney Assistant Friedman. respondents for cause argued
William R. Glendon Clark, A. Roger were him on the brief No. 1885: With Jr., Stanley Larkin, arid Leo P. Anthony Essaye, F. Godofsky. Boh Eckhardt and by curiae were
Briefs of amici filed of Con- Members Twenty-Seyen Emerson Thomas I. for Neu- Wulf, Burt sen, Melvin L. Norman Dor by gress; Fraenkel, Marvin borne, Ennis, K. Bruce J. Osmond Union; Liberties Civil Karpatkin M. the American for Emergency National Victor Rabinowitz for the Liberties Committee. Civil Washington Post Co.
* Together with United States No. Appeals al., certiorari to the United Court et States of Columbia Circuit. District
Pee Curiam.
We granted certiorari in-these cases which the United Státes seeks enjoin the New York Times and the Wash- ington Post .'from publishing the contents of a classified *2 study entitled “History of U. S. Decision-Making Process on Viet Nam Policy.” Post, pp. 942, 943. “Any system of prior of expression comes to restraints
this Court bearing a heavy presumption against its con
validity.”
stitutional
Books,
Bantam
Inc.
Sullivan,
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 remanded with directions to enter a judg- ment affirming judgment of the District Court for the Southern District of New York. The stays entered June 25, by the Court are vacated. The judgments shall issue forthwith.
So ordered. Mr. Justice Black, Douglas with whom Mr. Justice 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 Time's should have been vacated without oral argument when the cases were presented first this Court. beljéve injunctions every continuance moment’s flagrant, newspapers against amounts these continuing First violation indefensible, and agree argument, I oral Furthermore, after Amendment. judgment completely must affirm that we Appeals Circuit and of Columbia the District Court of Appeals for the judgment of the Court reverse the my Brothers stated for the reasons Circuit Second my is unfortunate Douglas In view it and Brennan. willing apparently my to hold are that some of Brethren enjoined. publication sometimes of news -that the First holding make a shambles would Such a of. Amendment. adop- in 1789with launched
Our Government was including Rights, The Bill of tion Constitution. for the Now, in 1791. followed Amendment, the First years founding of' the since the first time in the 182 Republic, hold that the courts are asked to the federal says, but rather Amendment does not mean what First *3 , publication of can halt the means that the Government importance people of this to the current news of vital country. injunctions against newspapers seeking and
In these presentation Court, to the Executive Branch its the. history purpose forgotten the essential and seems to have Amendment. When the First Constitution adopted, many .people strongly opposed it because the Rights safeguard document Bill contained no to cer- feared, They especially tain basic freedoms.1 the Rights introducing Representatives, In the Bill of in the House of great people Madison said: I believe that mass of the “[B]ut Constitution], opposed disliked it who because did not con [the provisions against particular tain effectual the encroachments on rights Cong. . Congressman . . .” Annals of 433. Goodhue many constituents, something added: is the wish of of our “[I]t Constitution, stronger should be added to to secure in manner Id., power.” their liberties from the inroads of 426. at new powers granted to a central government might be permit interpreted government to freedom curtail of religion, press, assembly, speech. response In and an overwhelming public 'clamor, James'Madison offered a series of satisfy amendments to citizens that these great liberties would remain safe beyond and power government abridge. proposed Madison what later became the First Amendment three parts, two of which are below, out set one of which proclaimed: people “The shall not be deprived or abridged their right to speak, to write, or publish their sentiments; and the press, as great one bul- freedom of warks liberty, shall be inviolable.”2 (Emphasis added.)' The amendments were offered to curtail and restrict the general powers granted to the Executive, Leg- islative, Judicial Branches two years before in the original Constitution. Bill of Rights changed the original Constitution into a new charter which under no branch- of government could abridge people’s free- doms 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 Govern- ment adopted in the original Constitution should be in- terpreted to limit and restrict specific and emphatic guarantees of the Bill of Rights adopted later. can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, men able
2 The parts other were: “The rights civil of none shall be abridged on religious account of belief or worship, nor any shall national religion be established, nor shall equal the full and rights of conscience be in any. manner, or any pretext, infringed.”
“The people shall not be restrained from peaceably assembling and consulting for their good; common nor from applying Legis- to'the by petitions, lature or remonstrances, for redress of grievances.” their 1 Annals of Cong. 434. they earnestly that they were, wrote in language believed could no never be shall make “Congress misunderstood: press law . . . the abridging freedom ... . . . Both the and language of the First Amendment history support the press view that the must left free to publish news, the- source, censorship, without whatever injunctions, prior restraints.
In the First Founding Amendment the gave Fathers the press free protection it must have to fulfill its essential in our democracy. role press was to serve the governed, not the governors. The Government’s power to censor the was press abolished so that press would remain forever free to censure the Govern- ment. The press protected so that bare could secr,ets of government and inform the people. Only a free and press effectively unrestrained can de- expose ception in government. paramount And the re- among sponsibilities of a free press dúty prevent a,ny part of government from deceiving and people sending them off to distant lands to die of fevers foreign and foreign shot and shell. In my view, from far deserving condemnation for their courageous reporting, the New York Times, the Post, Washington and other newspapers should be commended for serving pur- pose Founding Fathers clearly. saw so In revealing the workings of government led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped they trusted would do.
The Government’s case here is based premises en- tirely those, different from that guided the Framers of the First Amendment. The Solicitor General has care- fully and emphatically stated:
“Now, Mr. Justice your construction [Black], of . . . First [the is well known, Amendment] I certainly respect it. You say that no law means no law, and that should be obvious. only can *5 ^4 M-
say, Mr. Justice, that to me it is. equally obvious that ‘no law’ does not law’, mean ‘no and would seek persuade-the Court that that is true. . . . parts [T]here are other 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 protect the security of the United States.” And the argues Government in its brief in spite that of the First Amendment, authority “[t]he of the Execu- tive Department to protect the nation publica- against tion of information whose disclosure would endanger the national security stems from two interrelated sources: power constitutional of the President over the con- duct of foreign affairs arid his authority as Commander- in-Chief.” , In other words, we are asked to hold despite the First Amendment’s emphatic command, the Execu tive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridg ing freedom- the. press in thé name of “national se curity.” 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 representa tives of the people in Congress have adhered to the com mand of the First Amendment and refused to make such a law.5 See concurring opinion of Mr. Justice Douglas, 3 Tr. of Arg. Oral 76.
4 Brief for the United States 13-14. 5Compare the views the Solicitor General with those of James Madison, the author of the First Amendment. When speaking of the Bill Rights in the House of Representatives, Madison said: they- “If first [the ten are incorporated amendments] into the Con- post, at 721-722. To find the President “inher power” publication ent to the halt news resort wipe destroy courts would out the Amendment and First liberty security very fundamental people the Government hopes make “secure.” one can No read the history of the adoption of the First Amendment without being beyond any convinced doubt that it was injunctions like sought those here that Madison and his collaborators intended to outlaw this Nation for all time. *6 “security”
The word broad, is a vague generality whose contours not be should invoked to abrogate the funda- mental law embodied in the First Amendment. guarding diplomatic'secrets and military expense at the of informed representative government provides real no security for Republic. our The Framers of the First Amendment, fully aware both the need to defend a new nation the abuses and of the English and Colonial governments, sought give new society this strength security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Chief Mr. Justice Hughes great man and great Chief that Justice — he was—when-the Court held man could punished not be for attending by run meeting Communists.
“The greater importance of safeguarding the community from incitements to the overthrow of our by institutions force and violence, more im- perative is the need to preserve inviolate the con- rights stitutional of free speech, press free and free stitution, independent justice tribunals of will consider themselves peculiar in a guardians manner the rights; those they will be an impenetrable against every bulwark assumption of power in the Legislative Executive; they or naturally be led every will to resist upon rights encroachment expressly stipulated for in the Constitu- by tion rights.” declaration Cong. Annals of 439. for opportunity to maintain
assembly in order government to the end that discussion, political free people and that the will of the responsive by peaceful may be obtained if desired, changes, security Republic, of the Therein lies the means.- government.” foundation of constitutional very the. Black Me. Justice with whom Douglas, Me. Justice joins, concurring. I believe of the Court join opinion
While fully. my more necessary express views First Amend- the outset that should be noted at It law . . . shall make no provides “Congress ment press.” That speech, the freedom of abridging governmental no room restraint leaves, view, my on the press.1 publication
There no is, moreover, barring statute press the material which the Times the Post provides seek to use. Title 18 (e) § U. S. C. “[wjhoever possession unauthorized having to, access of, or control over any document, writing ... or information to the national relating defense which information the possessor has reason to believe could be used to the injury of the any United States or the advantage *7 willfully foreign nation, communicates . . . the same to any person not entitled to receive it.. . . hall be fined [s]
6 Jonge Oregon, De v. 353, 299 U. S. 365. 1 Illinois, See Beauharnais v. 250, 343 U. (dissenting opinion S. 267 Mr. Black) , Justice (my opinion); Roth v. United dissenting 284 States, which Mr. Justice 476, (my . 354 U. dissenting opinion S. 508 joined); Yates States, Black v. United 298, 354 U. (separate S. 339 opinion'of Mr. Justice Black which I New York Times Co. joined); Sullivan, of Mr. Justice 254, v. (concurring opinion 376 U. S. 293 Black which I joined); Louisiana, Garrison (my U. S. concurring opinion which Mr. Justice Black joined). not more than $10,000 or imprisoned not more ten than years, or both.”
The Government suggests word “communi- cates” is broad enough to publication. encompass
There eight are sections in the chapter on espionage, and censorship, §§ In 792-799. three of those eight “publish” is specifically § mentioned: applies (b) “Whoever, time of war, with intent that same shall communicated the enemy, collects, pub- records, lishes, or communicates . . . disposition [the 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 who ever: “communicates, furnishes, transmits, or otherwise makes available ... or publishes” the described mater ial.2 (Emphasis added.).
Thus it apparent that Congress 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 such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit or publishing communicating of, the at- tempting publish or communicate any information relating to the national defense which, in his 'judgment, is of such character it is or might be useful to
2These documents contain data concerning the communications system of the States, United publication of which is made a crime. But the criminal sanction urged is not by the United States as the basis of equity power.
722 in
enemy.” Cong. During 55 1763. the debates Rec. cited specifically the First Amendment was Senate provision and that defeated. Rec. 2167. Cong. Times in Judge Gurfein’s case that this holding apply Act does not pre- to this case was therefore eminently Moreover, September 23, sound. the Act of 1950, in in amending (b) § 18 U. S. C. 793 states § that:
“Nothing this Act shall be construed to author- ize, require, military or establish or civilian censor- ship any way or in or infringe upon limit freedom press speech or of guaranteed as the Con- by stitution of the United States and no regulation shall be promulgated hereunder having that effect.” 64 Stat. 987.
Thus Congress has faithful been the command of the First Amendment this area. any power
So that possesses Government must come from its power.” “inherent power to wage power is “the war to wage war suc- Hirabayashi cessfully.” States, v. United See 320 U. S. 81, 93. But the power war stems from a declaration of war. The by Constitution I, Art. 8,§ gives Congress, not the President, power declare “[t]o War.” No- presidential where are wars authorized. We need not decide therefore what leveling effect the power war Congress might have.
These disclosures3 have impact. serious But is no for basis previous sanctioning restraint on 3 There are numerous sets of this material they' existence and apparently are not under.anv controlled custody. Moreover, President sent Congress. a set to the We start then with a case already where there is rather wide distribution of the material - publicity, is destined secrecy. gone have over the material listed in the in camera brief of the United States. It history, is all not future events. None of it is more recent than 1968. press. As stated Chief. Justice in Near Hughes Minnesota, U. S. 719-720: *9 “While upon public reckless assaults men, and efforts to bring obloquy upon who those are endeavor- ing faithfully to discharge duties, official exert a bale- ful influence and deserve the severest condemnation in public opinion, it cannot be said that abuse is this greater, and it is believed to be less, than which that characterized the period in which our institutions shape. took Meanwhile, the administration of gov- ernment has become complex, more the opportunities for malfeasance and corruption have multiplied, crime has grown most serious proportions, and the danger of protection its by unfaithful officials and of the impairment of the security fundamental of life and property by criminal alliances and official neglect, emphasizes primary need of vigilant and courageous press, especially in great.cities. The. fact that liberty press abused miscreant purveyors of scandal does not make any the necessary léss the immunity press of the from previous restraint dealing with official misconduct.” As we stated only the day Organization other
Better Austin Keefe,
The says Government it has -inherent powers to go into court and obtain injunction an to protect national interest, which in this case is alleged to be na- tional security. Minnesota,
Near v. 283 U. repudiated S. 697, that ex pansive doctrine in no uncertain terms.
-The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental sup-
pression information. It embarrassing common knowledge the First adopted Amendment against the widespread use of the common law of seditious libel to-punish the dissemination of material that is embarrass- to the ing powers-that-be. See T. Emerson, System. The of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). pres- ent cases Iwill, think, down in go history as the most that, dramatic illustration of principle. A debate of large proportions goes on in the Nation over posture our in Vietnam. That debate antedated the disclosure of the contents present documents. The latter are highly relevant to the debate in progress.
Secrecy in government
is fundamentally anti-demo-
cratic, perpetuating bureaucratic errors. Open debate
public
discussion of
issues are vital to our national
*10
health.
public
On
.questions there should be “unin-
hibited,
robust, and wide-open” debate. New York
Times Co. v. Sullivan,
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 week constitute a flouting the principles of the First Amendment as interpreted in Near v Minnesota.
Me. Justice Brennan, concurring.
I I write separately in these cases only to emphasize what should be apparent: that our judgments in pres- ent may cases not . be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to publication sought block the material to be suppressed by the Government. as can deter- So far mine, never before enjoin has the United States sought from newspaper publishing in posses- information its sion. The novelty relative of the questions presented, haste with which necessary reached, were decisions the magnitude of the asserted, interests and the fact that all parties concentrated arguments upon have their the question permanent whether restraints proper were may justified have at least some of the restraints hereto- fore imposed in these Certainly cases. it is difficult to fault the several courts below for seeking to assure that the issues here involved preserved were for ultimate re- by this Court. But if view even it be assumed that some interim restraints were proper the two cases us, that assumption before has ho upon bearing the pro- priety judicial of similar action the future. To begin with, there has now been ample time for reflection and judgment; whatever values may there be in preser- vation of novel questions for appellate review support any restraints important, More future.. the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the presented kind by these cases.
II The error that pervaded these cases from the out- set was the granting any injunctive relief whatsoever, interim or otherwise. entire thrust of the Govern- ment’s claim throughout these cases has been publi- *11 cation of the material to be sought enjoined “could,” or “might,” or “may” prejudice the national interest in various ways. But the First Amendment tolerates ab- solutely no prior judicial restraints of press the predicated upon surmise or conjecture that untoward consequences
726 that have indicated true, cases, it is may Our result.* in cases which class of extremely narrow single, is a there restraint judicial prior ban Amendment's the First far indicated thus have Our cases may overridden. be the Nation “is at only when arise may that such cases States, (1919), 47, 249 U. S. v. United Schenck war,” that a question one would but during which times “[n]o re to its actual obstruction prevent might government dates of sailing of publication the the service or cruiting Near troops.” and location of number transports or the if Minnesota, (1931). Even the 697, 716 283 U. S. v. to be tantamount were assumed situation world present presently of available power if the war, of time to a peacetime suppres justify even would armaments would set motion a nuclear that of information sion actions has the Government in neither of these holocaust, of items from publication that alleged or even presented the material at would cause upon or based issue pur of nature. chief of an event that happening “[T]he guaranty pre pose First [the Amendment’s] [is] restraints, previous upon publication.” vent v. Near Minnesota, supra, Thus, governmental at 713. alle only gation proof publication and that must inevitably, di- Maryland,
* Freedman (1965), 380 U. cases S. similar regarding temporary allegedly restraints obscene are materials point. upon proposition not For those cases rest that “obscenity protected speech press.” is the freedoms States, v. United (1957). Here there is no U. S. Roth question sought suppressed but to be is within material protection Amendment; only question the First is whether, enjoined notwithstanding fact, publication its presence overwhelming time for a because of the of an national Similarly, copyright .pertinence cases have here: interest. no. not-asserting particular interest in the Government is an form of documents, seeking suppress in the but the ideas words chosen laws, course, copyright protect only And expressed therein. expression expressed. and not the ideas the form
727 event of an occurrence the immediately cause and rectly, already transport a safety of the imperiling kindred to re- an interim the issuance support can even at sea may mere conclusions In event no straining order. aid judicial Branch seeks for if the Executive sufficient: inevitably submit the it must publication, in preventing scrutiny by the sought that aid is upon basis which in this issued restraint judiciary. therefore, And every Amend- the First form, its has violated case, whatever jus- restraint ment —and not less so because opportunity necessary courts an tified as to afford the and until thoroughly. more Unless the claim examine clearly case, the First has made out its the Government injunction may no issue. commands that Amendment White with whom Justice Stewart, Justice Mr. Mr. joins, concurring. by our Consti-
In the
created
governmental structure
power
enormous
tution,
Executive
endowed with
inter-
in
defense and
the two
areas of national
related
by unchecked
power, largely
national relations. This
pressed
been
branches,
and Judicial2
Legislative1
missile
very
hilt since the
of the nuclear
advent
is that a
worse,
simple
For better or for
fact
age.
1
power
appoint
am
President’s
to make treaties
and
is,
course,
requirement
II, § 2,
bassadors
of Art.
limited
of the Constitution
that he
the advice and consent of
obtain
I,
8,
support
Senate.
empowers Congress
Article
to “raise and
§
Armies,”
course,
And,
“provide
Navy.”
and
and maintain
a
Congress
power
alone can declare
exercised almost
war.
was last
This
years ago
at
inception
II.
the end of
World War
Since
1945,
war
the Armed
suffered
Forces of the United States have
approximately
parts
half a million casualties in various
of the world.
Chicago
Corp.,
& Southern Air
S. S.
Lines v. Waterman
See
103; Hirabayashi
States,
81;
v. United
United
333 U. S.
320 U. S.
Curtiss-Wright Corp.,
States v.
cf. Mora
304;
299 U. S.
McNamara,
denied,
862,
App.
2d
cert.
U. S.
D. C.
387 F.
President of the United States independence constitutional two areas of these vital power than does, say, prime country minister of a with parliamentary government. form
In' the absence of the governmental checks and bal- present in other only ances areas of our national life, upon effective restraint policy power executive the areas of national defense international affairs citizenry lie in an enlightened an informed arid —in *13 public opinion critical which alone can protect here the values of government. democratic For this reason, is it perhaps press here that a that alert, aware, is and free vitally most serves basic purpose the the First Amend- ment. For an without informed and press free there ~ cannot be enlightened an people.
Yet that elementary conduct of successful .is diplomacy international and the maintenance of an ef- fective national require defense confidentiality and both secrecy. Other nations hardly can 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 cori- and sidered intelligent policies international would be im- possible if charged those with their formulation could not communicate with each other freely, frankly, and in con- In fidence. the area of basic national defense the fre- quent need for secrecy absolute is, of course, self-evident.
I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.3 If the Constitution gives the Executive quite “It is apparent if, that in the maintenance our inter relations, national perhaps serious embarrassment— embarrassment — is be avoided and success achieved, for our aims congressional legis which lation is to be made through effective negotiation inquiry and within the international field must often accord to the President degree of discretion and freedom statutory from restriction which the conduct power unshared in. degree large de- national of our maintenance and the affairs foreign must Executive the Constitution under fense, then pre- and duty to determine unshared largely have necessary to exer- security internal degree serve responsi- an awesome successfully. It is power cise that order. high of a wisdom bility, requiring judgment con- practical moral, political, that suppose I should principle first very that a dictate siderations would avoiding upon be an insistence would that wisdom is classi- everything For when sake. secrecy for its own one becomes system and the classified, nothing then fied, be and to careless, cynical disregarded to be or self- self-protection by those intent manipulated hall- short, suppose, I should promotion. security system would truly effective internal of a mark disclosure, recognizing possible maximum be the credibility is only when preserved secrecy can best it is dear may, But be that as it truly maintained. Executive— duty of the it is the constitutional me that as a matter and not sovereign prerogative as a matter of promulga- through courts know of law as the law— *14 protect to regulations, enforcement of executive tion and involved. More- were domestic affairs alone would not be admissible opportunity knowing over, he, Congress, the better has foreign countries, especially is this prevail in conditions which He has his confidential of information.. true in time of war. sources agents diplomatic, in has his. the form consular and other He Secrecy gathered by respect of information them officials. necessary, premature productive highly be- and the disclosure of it Indeed, clearly so is this true that the first Pres- harmful results. request lay Rep- ident refused to accede to a to before the House of instructions, correspondence relating resentatives the and documents Jay Treaty negotiation of the to the refusal the wisdom of which —a recognized the House itself and never since been Curtiss-Wright Corp., doubted. . . .” United States v. 299 U. S. 304, 320.
the confidentiality carry necessary responsibili- out .its ties in the fields international relations and national defense.
This say is not to that Congress and the courts have no role play. Undoubtedly Congress has the power to specific enact and appropriate criminal protect laws government property preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circum- stances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts decide the applicability of the criminal law under which the charge, is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its appli- cability to the proved. facts
But in the cases before us we are asked neither to con- specific strue regulations nor to specific apply laws. We are asked, instead, to perform a function that the Con- stitution gave to the Executive; not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material the Executive Branch insists should not, the national interest, published. I am convinced that the Executive is correct with re- spect to some of the documents involved. But:I can- not 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. Justice White, with whom Mr. Justice Stewart
Mr. joins, concurring. I concur in today’s judgments, but only because
coneededly extraordinary protection against prior re-
731 constitutional our under press by the enjoyed straints would no circumstances that say not I do system. pub- against injunction an permit Amendment First the opera- or plans- government about information lishing overn- the C materials the examining Nor, after tions.1 destructive, sensitive most the as ment characterizes will do of these documents revelation deny that can I I am Indeed, interests. public. damage substantial But result. . have that will disclosure their that confident not satis- States the that United agree I nevertheless warrant meet must heavy burden very fied the at least cases, in these publication against injunction an con- limited appropriately express of in the absence in circum- restraints prior authorization gressional these. as such stances 1 against restraints prior of a strain authorized Congress has Relations Labor The National instances. in certain parties private employers against orders routinely cease-and-desist issues Board exercise in the employees coerced have threatened finds
who it Similarly, 160 (c). the C. 29 U. S. rights. § See protected of impose cease-and-desist qpipowered is Commission Trade Federal (b). 45 S. C. U. competition. § of methods against unfair orders spoken,’ what do, restrict quite often can, and Such orders g., See, NLRB e. circumstances. certain under or written I, (1969). Article § 575, 616-620 Co., U. S. Packing Gissel right” “exclusive Congress to secure authorizes the Constitution newspaper a no one denies writings, and their authors works copyrighted publishing enjoined from properly be can Co., 249 S. Dispatch U. Co. v. Westermann See another. on the to time time rely from do themselves Newspapers (1919). important accounts their protecting a means copyright as relating to statutes enjoined under However, those events. Com Federal Trade and the Board Labor Relations National press when press; and not the parties, private are mission private is a complainant copyright laws enjoined under are situations These right. enforcing private holder copyright injunction an request for the Government’s' from quite distinct information, government, affairs about publishing against admittedly any statute. based request
The Government’s is simply stated: The position re- sponsibility of the Executive for the conduct of the foreign affairs and. for security the of the Nation is so basic that the President injunction is entitled to an against publi- cation of a newspaper story whenever he can convince court that the information to be revealed threatens “grave and irreparable” injury public to the interest;2 and the injunction should issue whether not the material to be published is classified, whether. publication or not would be under lawful relevant criminal statutes enacted by Congress, and regardless of the by circumstances which the newspaper came possession into of the information.
At in least the of legislation by absence Congress, based on its own investigations and findings, I am quite unable and-, jnhgrent powers to agree that the of the Executive the courts reach so far as tp_-autherize^remediesjiaying potential such inhibiting sweeping publications by the Much difficulty _pressv inheresln the^grave-abxf irreparable danger” standard suggested by the United States. If the United States were to have judgment under a standard such 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 opinion Court’s or from public records, nor would it published be by press. Indeed, even today where we hold that the United- States has not met its burden, the material remains sealed court records and it is “grave irreparable and danger” standard is that asserted the Government in this Coúrt. In remanding Judge to 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 specified certain items particularity with by the Gov ernment would “pose grave such and immediate danger to the security the United States as to warrant publication their being enjoined.” Moreover, opinions. today’s not discussed properly to national dangers substantial poses material because sanctions, criminal hazards and because interests more publish never may choose press responsible these Government To sustain the materials. sensitive and hazardous long down a the courts start would cases without least travel, at willing not am road that and guidance direction. congressional by the urged proposition easy reject It is claims on its deny good-faith relief States United damage work serious will publication in these cases considerably discomfiture country. But to the cases. prior-restraint infrequency dispelled by damage will occur publication Normally, *17 or opportunity has either the Government done before ' al- here, publication So has suppression. for grounds part of the threatened a substantial ready begun massive The fact of a already occurred. damage to documents security known, access is the breakdown the undeniable, and people is many unauthorized or other news- relief these efficacy equitable against of doubtful at best. anticipated damage is to avert papers publication the ban more, terminating What documents the Govern- relatively few sensitive mean that the law suppress to does not ment now seeks publish or others to newspapers either or invites requires immune from criminal action they them or that will be heavy they require if Prior restraints an unusually do. failure'by but justification Amendment; under the First justify prior to restraints does not meas- the Government ure its constitutional entitlement to conviction ' That the Government publication. mistakenly criminal by injunction not proceed to mean that chose does successfully proceed way. another could Act was under Espionage When consideration 1917, Congress eliminated from the provision bill a would have given powers President broad in time under, to proscribe, war threat of criminal penalty, publication of various categories of information related to the national defense.3 Congress at time was un- willing to clothe the President such with far-reaching powers to monitor press, and those opposed this paft of the legislation assumed that a necessary con- power comitant of such power to “filter out the to the people through .news some man.” 55 Cong. Rec. (remarks of Sen. Ashurst). However, these same members Congress appeared to have little doubt that newspapers would subject prosecution criminal if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, that, for example, was quite sure editor of such a newspaper punished “should be if he publish did information as to the movements of the (cid:127) fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort Id., thing.” at 2009.4 3 “Whoever, in time war, in violation of regulations reasonable to be .prescribed by the President, which hereby he is authorized to make and promulgate, publish shall any information respect with movement, numbers, description, condition, disposition or any of the forces, armed ships, aircraft, or war materials of the United States, or respect with plans to the or any conduct of naval military operations, or respect any with works or measures *18 undertaken for’ or with, connected or intended for the fortification or any defense of place, any or other information relating to the public defense calculated to be useful enemy, to the punished shall be by a by fine ... or imprisonment . . . .” Cong. 55 Rec. 2100. 4 Senator Ashurst urged also of press’ ‘“freedom means freedom from the restraints of a censor, means the liberty absolute right and- publish you whatever wish; you but your take punishment chances in the your courts of country for violation of the laws libel, slander, Cong. and treason.” 55 Rec. 2005.
735 po- provisions numerous contains The Criminal Code makes it 7975 these cases. tentially relevant Section drawings or photographs certain publish crime lan- in precise 798,6 also Section military installations. any publication and willful knowing proscribes guage, sys- cryptographic concerning information classified provides: S. C. Title U. § 797 the President days upon thirty from the date which after “On and equipment as military or any or naval installation vital defines this 795 of category contemplated under section being within away any photo- sells, gives reproduces, publishes, or title,' whoever representation sketch, map, graphical drawing, or graph, picture, defined, so equipment or military naval installations of the vital or commanding officer of obtaining permission of the first without concerned, higher author- or military camp, station post, naval or or drawing, map, or sketch, picture, ity, photograph, such unless it has clearly indicated thereon graphical representation authority, be' shall military by proper or naval been censored year, than one $1,000 imprisoned not more than or fined not more or both.” provides: C. part In 18 U. S. relevant § furnishes, communicates, willfully knowingly “(a) Whoever person, to an unauthorized transmits, makes available or otherwise safety inter- or any prejudicial to the uses in manner publishes, or or foreign government any the benefit of or for est of United States any information— classified of the United States to the detriment code, any nature, use of preparation, or “(1) concerning the any foreign system the States or cryptographic United cipher, or government; or maintenance, or construction, use, design,
“(2) concerning the prepared or device, appliance used or any apparatus, or repair of government any foreign by the United States or planned for use or intelligence purposes; cryptographic or communication intelligence activities "(3) concerning the communication any government; foreign or United States intelligence from “(4) by process of communication obtained knowing the same any foreign government, the communications processes— been obtained such to have more $10,000 imprisoned than .or fined not more “Shall years, or both.” than ten
736
terns or communication intelligence activities of the United States as any well as information obtained from communication intelligence operations.7 any If of the material here at issue is of this nature, the newspapers are presumably now on full notice of position United States and must face the consequences if they 7 purport of 18 U. S. C. 798 is clear. § Both the House and Reports Senate on bill, terms, speak identical of furthering security United by' States preventing disclosure of in formation concerning the cryptographic systems and the communi cation intelligence systems of the States, United and explaining that bill makes it “[t]his a crime to methods, reveal the techniques, and materiel used in the transmission this Nation enciphered or messages. coded . ! . Further, it makes a crime to reveal methods used by this Nation in breaking the secret codes of foreign a nation. prohibits It also under penalties certain the divulging any infor mation which have come into this Government’s hands as a result of such a code-breaking.” Rep. H. R. 1895, No. 81st Cong., Sess., 2d (1950). 1 The narrow reach of the explained statute was as covering “only a small category of matter, classified a category which is both vital and vulnerable to an unique degree.” almost Id., at 2. Existing legislation was inadequate. deemed “At present two protect other acts this information, only but a way. limited These are the Espionage (40 Act of 217) Stat. and the act of June 10, (48 122). Stat. first, Under the unauthorized revelation of information of this kind can penalized only if it proved can be that the person making the revelation did so with an intent injure the United States. second, Under the only diplomatic codes and messages transmitted in diplomatic codes protected. are The present bill is designed to protect against knowing and publication willful any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes ciphers.” Ibid. Section 798 obviously was intended publications to cover by non- employees of the Government and to ease the Government’s burden (cid:127) in obtaining convictions. See H. Rep. R. No. 1895, supra, at
2-5. The identical Report, Senate parallel not cited in in the text of this footnote, is Rep. S. No. Cong., 81st 1st (1949). Sess. con- sustaining difficulty no I would have publish. would facts sections under these victions imposition and the of equity intervention justify the prior restraint. those sections under be true would The same national protect net wider casting Criminal Code *20 act for criminal ait makes (e) 793 defense. Section to “relating document possessor of any unauthorized willfully to communicate (1) either defense” the national any per- to document to be communicated or cause willfully retain to (2) to receive or entitled son not officer of the to an deliver it fail to the document was it. The subsection to receive entitled States United no provided law pre-existing because 1950 added 8 provides that: (e) S. C. 793 of 18 U. Section to, of, or access possession having “(e) unauthorized Whoever sketch, book, book, signal any document, writing, code control over model, map, blueprint, plan, negative, photographic photograph, defense, or relating national to the instrument, appliance, or note the information which relating the national defense information injury to the be used believe could has reason to possessor willfully nation, foreign any advantage of or to the United States communicated, be causes to transmits or delivers, communicates, deliver, communicate, trans- transmitted, attempts to delivered, or or same communicated, delivered, transmitted'the or to be mit or cause the same willfully it, retains receive or any entitled to person not of the United employee it to the officer to deliver and fails it;” entitled to receive States $10,000 years prison, 10 punishable an offense guilty of (g), C. 793 18 U. S.
fine, § also be noted It should or both. 1, 2369, pt. 81st 1004; Rep. No. (see 64 Stat. S. added in 1950 persons more (1950)), two or Sess., provides that Cong., “[i]f 2d section, this of any foregoing provisions the of conspire to violate object the any persons act effect do more of such and one or conspiracy shall parties to such conspiracy, each of of which is provided for offense punishment subject object conspiracy.”' of such for the penalty possessor unless demand unauthorized ' for the “The dangers documents was made.9 surround ing possession the unauthorized of such items are self- (e) part The amendment of 793 that added subsection of § 1950, Subversive Activities Control Act of which was turn Security Title I of the Internal 1950. .See Stat. 987. Act. report Judiciary explains of the Senate Committee best purposes of the amendment:
“Section 18 of the bill amends section 793 of title 18 of the (espionage statute). United States paragraphs Code The several of section 793 designated (a) of title 18 are through as subsections (g) purposes significant changes convenient reference. The which made in section 793 of title 18 are as follows: would.be “(1) Amends paragraph (subsec. the fourth of section title 18 (d)), to cover the unlawful relating dissemination 'information to the national defense possessor which information the has reason to believe could injury be used to the of the United States or to advantage any phrase foreign nation.’ The ‘which informa- possessor tion the injury has reason to believe could be used to the advantage the United any foreign States or to the nation’ modify only relating would to the national ‘information defense’ and not the other items enumerated in the subsection. The fourth *21 paragraph of section 793 is provide only also amended to that those possession with lawful relating of the items to national defense may subject enumerated therein retain them to demand therefor. possession Those who have unauthorized of such items are treated separate in a subsection. 793,
“(2) (subsec. Amends section (e)), title 18 provide to that possessors unauthorized of items enumerated paragraph in 4 of possession section 793 must surrender thereof proper to the author- ities without Existing provides demand. no.penalty law for the possession unauthorized of such items unless a demand for them by person is made the entitled to dangers receive them. The surrounding the possession unauthorized of such items are self- evident, and it is deemed require advisable to their surrender in case, regardless demand, such a of especially since their unauthorized possession be unknown to the authorities who otherwise would the demand. only make The difference (d) between subsection and- (e) subsection of section 793 is that by a demand person the entitled the to receive items necessary would be a element of an offense (d) under subsection possession where the is lawful, whereas such
739 their sur require to advisable deemed it is evident, and especially demand, such, regardless case, a in render to unknown may be possession unauthorized their since demand.” the make otherwise would who the authorities (1950). 9 Sess., 2d Cong., 81st 2369, pt. Rep. 1, No. S. docu unpublished the us, cases before course, in Of and States the United by ments, demanded been have for counsel to least at known made import been their States, United Gorin v. In involved. newspapers defense” “national the words 19, (1941), U. S. by a unani held §of 793 were predecessor used in a as connotation”— understood “a well to have Court mous to referring connotations, concept broad “generic the related and, establishments naval military and “suffi to be preparedness” of national activities' —and activi- prohibited public apprise ciently definite to sub- under offense necessary of an element be a would not a demand Rep. No. S. is unauthorized.” possession (e) where the section added). (1950) (emphasis Sess., 8-9 Cong., 2d 1, pt. 81st the intimations contrary to foregoing, clear from It seems York of New District Southern for the Court the District withholding a communicating or prosecuting case, that this “infor respect to action similar with with contrasted “document” as injure the intent an prove not need the Government mation” only willful but foreign nation benefit a toor United States United on Gorin relied Court District knowing conduct. under other arose that case (1941). But States, 312 U. S. S., parts at 312 U. § 793, see predecessor parts of 21-22— (d) repeated not § 793 standards intent imposed different Also, (c). (b), (a), C. (e). Cf. 18 U. S. §§ 793 or § 793 of the Act the context (e) and from the face subsection from well as newspaper, that a undeniable it seems part, which was Government, are vulnerable with others unconnected as communicate, or withhold they (e) if under prosecution § ruled that Court The District section. covered materials newspaper of by a publication reach did “communication” no I intimate views defense. relating the .national documents, *22 But neither communication conclusion. the correctness on necessary the subsection. to violate is publication nor -ties” and to be consonant with process. due S., U. at 28. Also, as construed by the in Gorin, Court infor- mation “connected with the national defense” is obvi- ously not limited to that threatening “grave and irrep- arable” injury to the United States.10
It
is thus clear that Congress has addressed itself to
problems
of protecting the security of the country
and the national defense from unauthorized disclosure
of potentially damaging information. Cf. Youngstow
Sheet & Tube Co. v. Sawyer,
Me. Justice Marshall, concurring.
The Government contends that the only- issue in these cases whether in a suit the United States, “the First Amendment bars a court from prohibiting a news- 10Also relevant is 18 U. S. C. § 794. (b) Subsection thereof forbids in time of war the collection or publication, with intent it shall be communicated to enemy, any information with respect to the movements military forces, “or respect with plans or conduct ... any naval or.military operations . . . or any other information relating public defense, which might be useful to the enemy . .” ... *23 would disclosure whose material publishing from paper security of to danger immediate pose and ‘grave ” 7. United States Brief for the the United States.’ in these issue ultimate respect, believe With all due by the Solici- posed one than the is even more basic cases or the this Court whether The issue is tor General. law. to make power has the Congress Presi- concerning problem is no In cases there these “top classify as “secret” information power dent’s to Presiden- specifically recognized secret.” Congress formally exercised which has been authority, tial classify and to documents (1953), 10501 Exec. Order g., ; e. C. 798 50 U. S. C. See, § 18 U. S. information. any here the Pres- regarding Nor is issue
§ there 783.1 and Commander ident’s as Chief Executive power by em- security disciplining protect Chief to national by pre- taking ployees who disclose information prevent cautions to leaks. particular in these cases problem here is whether authority equity to invoke the Executive Branch has to what it believes to
jurisdiction protect of the courts Debs, 564, In be re 158 S. the national interest. See U. to that in addition (1895). argues 584 The Government itself, any protect to power government the inherent his affairs and power foreign the President’s to conduct authority him position give as Commander in Chief ability impose censorship press protect his to con effectively foreign deal with nations and Qf course, military country. duct affairs powers beyond it is cavil that the President has broad primary responsibility for the' conduct of virtue of his position our affairs his as Commander foreign Chicago & Southern Air Lines Waterman Chief. S. Corp., (1948); Hirabayashi S. S. 103 333 U. v. United States, 81, (1943); 320 U. S. United States v. Curtiss- See n. infra.
Wright Corp., 299 U. S. (1936).2 And in some may situations under whatever inherent powers the Government have, as implicit well as the authority derived from the President’s mandate to con duct foreign affairs and to act as Commander in Chief, there is a basis for the invocation equity jurisdic tion of this Court as an aid to prevent publication material damaging to “national security,” hówever that term may be defined. would,
It
however, be utterly inconsistent with the con-
cept
separation
of powers for this Court
to use its
power of contempt to prevent behavior that Congress has
specifically declined
prohibit.
There would
*24
a simi-
be
lar damage to the basic
of
concept
these co-equal branches
of Government
if when the Executive Branch has ade-
quate authority granted by Congress
protect
to
“national
security” it can choose instead to invoke the contempt
power of a court
enjoin
to
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
provide
not
for government by injunc-
tion in which the courts and the Executive Branch can
“make law” without
regard to the action of Congress.
It
be more convenient for the Executive Branch if
it
only
need
convince a judge to prohibit conduct rather
than ask the Congress
pass
to
a law, and may
it
be more
convenient
to enforce a contempt order than to seek a
criminal conviction in
jury
a
trial. Moreover, may
it
considered politically wise
get
to
a court
to share the
responsibility for arresting those who the Executive
Branch
probable
cause to believe are violating the
law. But convenience and political considerations of the
2But see Kent Dulles,
357 U. S. 116 (1958); Youngstown Sheet
& Tube
(1952)
Co. v. Sawyer,
743 princi- from departure basic a justify not do moment government. of our'system of ples where a situation with faced we are cases In these broad with Executive provide to has failed Congress damaging disclosure Nation from protect to power given occasions several has on. Congress state secrets.. protecting problem to the consideration extensive This United States. secrets strategic military and statutes enactment has resulted consideration communicate, disclose, receive, to crime making documents, photographs, certain publish withhold, and The bulk information. and appliances, instruments, Title C., S. 37 of U. chapter is found these statutes chapter, In that Censorship.3 Espionage entitled statutory prohibiting pun provisions other There are several information, of which Con the disclosure ishing the dissemination security to warrant imperiled sufficiently national thought gress relating through 2166 42 U. S. C. include result. These §§ declassify classify and Energy Commission authority the Atomic employed of art Data” is a term Data” “Restricted [“Restricted 42 U. S. C. Specifically, Energy uniquely by the Atomic Act]. classify certain Energy Commission the Atomic authorizes § (a), provides § 2274, subsection S. C. Title U. information. transmits, or discloses “communicates, person who penalties for or injure States the United intent . .(cid:127). with data] [restricted . . .” any foreign nation . advantage to to secure an intent with one who “com penalties (b) provides lesser of 2274 Subsection § reason to “with transmits, information discloses” such municates, *25 injure or the United States utilized to data will.be believe such foreign . .” Other sections any . . advantage to nation secure an energy pro dealing with atomic Code States 42 of the United Title with, concealment, removal, tampering acquisition, punish hibit and incorporating “Re mutilation, documents alteration, destruction of or employees and former em penalties for provide Data” stricted services, Commission, con the armed Energy Atomic ployees of 42 Energy Commission. Atomic Title licensees tractors and App. 781, C. 56 Stat. 390, Title 50 U. S. 2277. §§ 2276, § C. U. S. military representation of any or other making of sketch prohibits the any military military equipment any located instal- installations or Congress provided penalties ranging from $10,000 a fine to death for violating the various statutes.
Thus it would seem that in order for this Court issue an injunction it would require a showing that such injunction an would enhance the already existing power of the Government to act. See Bennett v. Laman, 277 N. Y. 368, N. E. 2d 439 (1938). It is a traditional axiom of equity court of equity will not do a use- less thing just as it is a traditional axiom that equity will not enjoin the commission of a crime. See Z. Chafee & E. Re, Equity (5th 935-954 ed. 1967); 1 H. Joyce, In- junctions §§ 58-60a (1909). Here there has been no attempt to make such a showing. The Solicitor Gen- eral does not even mention in his brief whether the Gov- ernment considers that there probable cause to believe a crime has been committed or whether there is con- á spiracy to commit future crimes. If the Government had attempted to show that there was no remedy effective 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 constitu- tionality of any statute. Whether good-faith prosecu- tion could have been instituted under any statute could, however, be determined. lation, specified; as and indeed Congress in the National Defense Act 1940, 676, Stat. as amended, 56 Stat. jurisdiction conferred on federal district courts over civil actions enjoin “to any violation” thereof. 50 U. S. C. App. (6). § Title 50 U. S. C. (b) 783 §
makes it unlawful for any officers or employees of the'.United States any or corporation which is by owned the United States to communi cate material which has been “classified” the President any person governmental who. employee knows or has to be reason lieve is agent an representative of any foreign government or any Communist organization. *26 rel many in this area seems At least one of the statutes provided has 18 U. S. C. Congress evant to these cases. possession unauthorized (e) “having that whoever § any document, writing, of, to, access or control over code or note to the national book, signal relating book ... defense, relating or information to the national defense possessor which information the has reason to believe could used of the or to the injury United States nation, any willfully communicates, advantage foreign delivers, person not any transmits ... same entitled willfully to receive same to de it, or retains the and fails liver it to employee the officer or of the United States- entitled to . receive it . . be fined not more than [s]hall $10,000 imprisoned not more than ten or both.” years, Congress has conspire also made it a crime to to com any mit of the offenses listed in (e). 18 U. S. C. § 793 It is true Judge that Curfein found that had Congress publish made it crime to not the items and material specified in 793 (e). § He found words “com- municates, delivers, pub- transmits . . .” did not refer to' lication newspaper stories. And that view has some support history in the legislative and conforms with the past practice only the statute using prosecute those with charged ordinary . espionage. But see Cong. (remarks Rec. 10449 Humphrey). Sen. Gur- Judge fein’s view of the statute not, only is however, plausible construction that could my be given. See Brother White’s concurring opinion.
Even if it is determined could Government in good faith bring prosecutions criminal against the New York Tillies and the Washington Post, it is Congress specifically clear that rejected passing legis- clearly lation that would have given the President power he seeks here and made the activity current newspapers unlawful. When Congress specifically de- clines to make conduct unlawful not for this Court
to redecide those issues—to overrule Congress. See
Youngstown Sheet & Tube Co. v. Sawyer,
On at least two occasions Congress has refused to enact *27 legislation that would have made the engaged conduct 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 provisions basic §of 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 war, the President by procla- may, mation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communi- cating of, or the attempting publish or communi- any cate information relating the national defense which, in his judgment, is of such character it or might be useful to the enemy. Whoever violates any such prohibition shall punished be 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 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 Ger- many 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 Execu- tive Branch has not gone to Congress and requested that the decision to provide such power be reconsidered. In- stead, the Executive Braiich comes to this Court and asks that it granted power Congress refused to give.
In Í957 the United States Commission on Government Security “[ajirplane found that journals, scientific peri- odicals, and even daily newspaper have featured articles containing information and other data which should have been deleted whole or in part for security reasons.” In response problém to this the Commission proposed that “Congress legislation enact making it-a for any crime person willfully to disclose proper without authorization, for any purpose whatever, information classified ‘secret’ or ‘top secret,’ knowing, or rea- having grounds sonable such believe, information to been have so classified.” Report of Commission on Government Security (1957). 619-620 After substantial floor discus- sion on the proposal, rejected. See Cong. Rec. 10447-10450. If the proposal that Sen. Cotton *28 championed on the floor had been enacted, the publicar tion 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 remake that decision. This Court has no power. such
Either the Government power has the under statutory grant to use traditional criminal law to protect the coun- try or, if there is no basis for arguing that Congress made the activity a crime, it plain is that Congress has specifically refused to grant the authority the Govern- ment 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 every into per- breach ceived some Government official nor it for is this Court to take on itself the burden of enacting law, especially a law that Congress has pass. refused to
I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit should Court States of the United judgmen> affirmed in- be reversed should Circuit for the Second Appeals hearings. for further the case it remands as
sofar dissenting. Burger, Mr. Chief Justice prior limitations constitutional are the clear So Near the time of that from expression, against restraint recently in Minnesota, (1931), until S. 697 283 U. Keefe, Austin v. 402 U. S. a Better Organization for with to be concerned had little occasion (1971), we have reporting news against restraints involving prior cases therefore, little is, interest. There public on matters in members of the Court terms among the variation Ad- publication. prior against restraints resistance principle, however, this basic -constitutional herence to simple. cases, In these the' does not make these cases into imperative press of a free comes col- and unfettered functioning lision with another the effective imperative, complex specifically modern government powers exercise of effective certain constitutional Only those who Amendment Executive. view First respect, in all circumstances —a view I but as an absolute easy. reject simple find such cases these to be or as —can simple are not for another and more im- These cases mediate reason. We do not know the facts of the cases. Ap- No District knew all the facts. No Court of Judge peals judge knew all the facts. No member of this Court knows all the facts.
Why posture, only are we this in which those judges to whom First permits Amendment absolute and of no restraint circumstances any any reason, really position are to act? are in suggest posture we this because these cases *29 in unseemly
have been conducted haste. Mr. Justice covers the of Harlan chronology events demonstrating pressures the hectic under which these cases have been processed and need not prompt restate them. The of abhorrence universal our reflects cases of these setting does not action judicial prompt But restraint. prior haste. unjudicial mean part in large is due frenetic haste moreover,
Here, from the proceeded Times in which the to the manner seems It documents. purloined date obtained reasonable precluded the haste now that reasonably clear and was cases treatment of these judicial and deliberate Court of this action precipitate The not warranted. kind of yet completed is trials not aborting disposition to attend ought conduct that’ judicial great of a issue. claim under derivative make a newspapers
The as the right this they First denominate Amendment; Times asserts by implication, the know”; pubiic “right by journalistic of its virtue trusteeship right a sole of that course, as an absolute. Of “scoop.” right is asserted as absolute, is not an right the First Amendment itself aphorism in his pointed out long ago Justice Holmes so in theater shout “fire” a crowded right concerning exceptions, some if there no fire. There are other way of ex- mentioned Hughes which Chief Justice other ample in Near v. Minnesota. There are no doubt or dis- to describe had occasion no one has exceptions lurking Conceivably exceptions cuss. such they been flushed had and would have been these cases from unwar- courts, in the trial free properly considered An issue pressures. frenetic ranted deadlines and judicial be tried and heard importance this should , reflective delibera- atmosphere thoughtful, conducive is unwar- hours, in terms of tion, especially haste, when by its Times, long period light ranted publication.1 choice, own deferred analysis the 47 its the Times conducted As noted elsewhere months period several over a documents volumes Government envy. might security government that a degree of and did so with course, enterprise protect essential, security was Such *30 (cid:127) It is not- disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had expert its analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, pre- sumably its capacity as- trustee of public’s “right to know,” has held up publication for purposes it con- sidered proper and thus public knowledge was delayed. No doubt this was for a good reason; thé 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 infor- mation 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 past practiced and stated editorially to be the duty of an press— honorable the newspapers and Government might well have nar- from others. Meanwhile the Times has copyrighted its material and there were strong intimations in the oral argument Times contemplated enjoining its use any other publisher violation of its copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others —a pro- tection the Times denies the Government of the United States. importance
real future, in shaping the law but because of some accident immediate over- whelming appeals interest to the feelings which distorts the judgment. These immediate interests exercise hydraulic a kind of pressure which makes what previously clear seem doubtful, and before which even well principles settled will law bend.” With all respect, consider that the Court been .almost feverish in with irresponsibly dealing these cases.
Both the Appeals Court of for the Second Circuit and the Appeals Court of for the District of Columbia Circuit rendered judgment on June 23. The New York Times’ petition for certiorari, its motion accelerated consideration thereof, application and its for interim relief were filed in this Court on June 24 at 11 about 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 hearing before us on June 11 26 at a. am., course I joined only which avoid to the possibility even more peremptory by action Coürt, was issued less than 24 hours before. record in Post case th.e with filed shortly Clerk before 1 p. m. on 25; Juné record the Times case did not arrive until 7 or 8 o’clock that night. The briefs same parties of the were received less two than hours before argument on June 26.
This frenzied train of events took place the name of the presumption against prior restraints created the First Due regard for Amendment. the extraordi- narily important and questions difficult involved these in. litigations should led the' have Court shun pre- such a cipitate In timetable. order to decide merits of these cases properly, some or all of following ques- tions should have been faced:
1. Whether the Attorney General is authorized to these bring suits name United States. Com-
754 Debs, Youngstown In re
pare U. S. 564 with (1895), Sawyer, Sheet Tube Co. v. This (1952). & U. S. 579 well question involves the construction and validity as of a opaque Espionage Act, statute —the singularly (e). 793§ U. C.S. permits
2. Whether the First the federal Amendment enjoin publication pre- courts to of stories which would security. sent a serious threat to national Near See Minnesota, 283 (1931) (dictum). U. S. publish
3. Whether threat highly secret docu- implication ments is of itself a sufficient of national secu- rity justify injunction an theory on the regardless contents of the harm enough results documents simply from the demonstration of such a breach of secrecy.
4. Whether the unauthorized any disclosure of of these particular seriously documents would impair the national security.
5. What weight be given opinion should to the of high officers in the Executive Branch of the Government with respect questions 3 and 4. newspapers
6. .Whether the are entitled to retain and use the documents notwithstanding the uncon seemingly *32 that tested facts the documents, or the originals of which they are duplicates, purloined were from the Govern possession ment’s and that the newspapers'received them with they knowledge had feloniously been acquired. Liberty Lobby, Inc. Pearson, Cf. App. U. S. D. C. 74, 390 F. 2d (1967, 1968). amended
7. Whether the threatened harm to the national secu- Government’s, rity or the possessory interest in the docu- justifies ments the issuance of injunction an against t publication in of— light
a. The First strong policy Amendment against prior restraints on publication;
b. The doctrine against enjoining in.violation conduct statutes; criminal c. extent The to which the ap- materials at issue have parently been already disseminated. otherwise
These are questions difficult fact, law, and of judgment; potential consequences of deci erroneous sion are enormous. The which time been available has to us, to the lower courts,* and to the parties been wholly inadequate for these giving cases the kind they consideration deserve. It on the a reflection these, stability judicial, process great issues— important as any that my have arisen time on during as. the Court —should have been decided pressures under engendered the torrent of by publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of I cases, these dissent from the opinion judgments of the Court. Within the severe imposed by limitations the tiftie- con- straints under I which have required been I operate, only can my state in telescoped reasons form, even though in different circumstances have felt .constrained would to deal with cases in sweep fuller indicated above. the.
It is a sufficient basis for affirming the Ap- Court of peals 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 hearing
* The in the Post case Judge before began Gesell at 8 a. m. on June and his decision rendered, under the hammer of a imposed by deadline the Court Appeals, shortly p. before 5 m. day. on the hearing same The in the Times case Judge before Gur- fein was held June 18 and his decision was rendered on June 19. appeals in the two cases were Government’s heard the Courts Appeals for . the District of Columbia and Circuits, Second each sitting court banc, en on June 22.- Each.court rendered its decision on the following afternoon. *33 was conclusion least this theAt Court. District the to discretion. of. not an abuse time had more Government the litigation
In the Post refusal for the basis apparently this the prepare; to Cir- of Columbia District for the Appeals of of the Court of to that judgment its conform rehearing on cuit is another I think there But Circuit. the Second cannot why judgment this reason more fundamental additional an furnishes also reason which stand —a District of the judgment the reinstating for ground of Court by the aside set Times litigation, in the Court judicial of the scope the me that plain is It Appeals. Executive of the the activities upon passing function foreign field of affairs in the of Government Branch think, dic- is, view This narrowly restricted. very which powers upon of separation of concept tated system rests. constitutional our Representa- of House floor of on the speech In a of then a member Marshall, Justice tiyes, Chief John body, stated: nation organ sole of is the “The President with representative relations, and sole its its external (1800).. Cong. of 10 Annals nations.” foreign Nation, of shortly founding after the time, Erom this challenge to no substantial there has been this, power. See United of executive description scope 319-321 Curtiss-Wright 299 U. Corp., S. States collecting authorities. (1936), field primacy foreign Prom this constitutional necessarily me that certain conclusions affairs, seems concisely by were Presi- these stated follow. Some . request the House Washington, declining the dent up to the papers leading nego- Representatives Treaty: .Jay tiation foreign negotiations requires cau- nature
“The depend often secrecy; and their success tion, must full dis brought and even when to a conclusion demands, of all the measures, closure eventual *34 con-, or proposed concessions which been have extremely for this templated impolitic; would be pernicious nego have a influence on future might ' tiations, or inconveniences, immediate produce perhaps danger mischief, in .relation to other powers.” 1 Richardson, Papers J. Messages and the Presidents 194-195 (1896).
The power to “pernicious evaluate the influence” of premature not, disclosure is however, lodged in . the Executive alone. agree that, performance I duty of its protect the values of the First against Amendment political pressures, the judiciary must the review initial Executive determination to point the of satisfying itself subject dispute matter lie does within the proper compass of the President’s foreign power. relations Constitutional considerations forbid “a complete aban donment judicial control.” Cf. United States v. Reynolds, 345 1, U. 8 (1953). S. Moreover, judi ciary may properly insist determination that disclosure of subject matter would irreparably im pair the national security be made by the head of' the Executive Department concerned —here the Secretary of State, or the Secretary of personal Defense —after actual consideration that officer. This safeguard is required in the analogous area of executive claims of privilege id., secrets of state. See Duncan 20; at and n. Cammell, Laird Co.,& [1942] A. C. 624, (House Lords).
But in my judgment the judiciary may not properly go beyond these inquiries two and redetermine for itself probable impact of disclosure on the national security. véry nature
“[T]he of executive decisions as to foreign policy is political, judicial. not Such de- by our Constitution wholly confided
cisions are Execu- government, the' departments of the political delicate, complex, They are Legislative. tive and prophecy. They are elements large and involve, by those re- directly only should be undertaken they advance whose welfare people to the sponsible a kind for which They decisions of imperil. are Judiciary aptitude, has neither facilities nor been held to be- long and which responsibility subject political power in the domain long Chicago & Southern inquiry.” intrusion or judicial Corp., Steamship Waterman 333 U. Air Lines v. S. - J.). (1948) (Jackson, judiciary room for the to over- if there is some Even determination, plain that the executive is. ride narrow. exceedingly must be can see of review scope *35 opinions in either District Court the the no indication of Post Appeals litigation in the the the Court of or even defer- given of the Executive were the conclusions agency, an administrative much less that owing ence of the Government co-equal operating branch owing to a prerogative. field its constitutional the of within I the judgment would the of Accordingly, vacate Court. Columbia Circuit on this Appeals for the District of the case for further in proceedings and- remand ground Court. Before the commencement of such the District due proceedings, further should afforded opportunity Secretary from procuring the Government the expression of Defense or both an Secretary State security. the issue of national their views .on by- review the District Court be in ensuing ac- should in expressed opinion. cordance with the views this And I for the reasons stated above would the judgment affirm Couri of for the Second Circuit. Appeals further Pending hearings each case conducted under I ground rúles, would appropriate continue the the doc- believe I cannot publication. restraints point to the reaches restraints prior prohibiting trine quo long status maintaining, from courts preventing national of such in matters responsibly to act enough here. involved as those importance dissenting. BlackmUn, Mb. Justice I also am dissent. Hablan in his join Justice Mb. White Justice much that Mb. accord with in substantial his part latter in the by admonition, way says, opinion. only comparatively the focus is on point
At this as critical. specified by the Government few documents con- other amount —is far as the material —vast So forthwith if the cerned, published published let it be newspapers, gone once the strain is and the sensationalism eased, still feel the urge so do.
But we are concerned here with few documents specified years from the 47 volumes. Mr. ago Almost 70 Holmes, Justice in a observed: dissenting case, celebrated
“Great cases like hard For cases make bad law. great cases are of their great, called reason importance real future, but shaping law of the because of some accident of overwhelming immediate which appeals interest feelings and distorts These immediate judgment, interests exercise a hydraulic pressure Se kind of . Northern . . .” States, curities Co. v. United S. 400-401 U. (1904). *36 if present cases, are great, at least unusual
The. posture their and implications, the Holmes observa- pertinent application. tion certainly New clandestinely York Times period devoted a months to the 47 examining three volumes that came into possession. unauthorized its Once it had begun publi- cation of material from volumes, those the New York now case before us emerged. immediately It assumed, and ever has maintained, since a frenetic pace and char- Seemingly, publication acter. once started, material could not be public made fast enough. Seemingly, from on, every then deferral delay, restraint or other- wise, 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 at us oral argument professed criticism of the Government for not lodging protest its earlier than aby Monday telegram following the initial Sunday publication.
The District of Columbia case 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 been —have pressed into hurried decision 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, yet had not examined the basic material when the case was brought here. In the District of Columbia case, more little was done, and what was accomplished in this respect only on required remand, with the Washington Post, excuse that it was trying protect its source of infor- mation, initially refusing to reveal what material actually possessed, and- with the District Court forced to make assumptions toas possession.
With such respect as may be due to the contrary view, this, my opinion, is not the toway try a lawsuit of magnitude this and asserted importance. It is not the way. federal courts adjudicate, and to be required to adjudicate, -issues that allegedly concern the Nation’s
761 off worse none the country would The welfare. vital in custo- the sure, but to be quickly, tried were the cases recent most The manner. deliberative propérly mary and ..already 1968, no later than dates material, said, it is of the three took the Times and itself years ago, about three ,de- and, thus, procedure of plan its to formulate months period. for that prived. public its an part one of all, only is Amendment, after The First II of the document great Article entire. Constitution. power over primary in the Executive .Branch vests in that places and branch affairs foreign conduct of provisionof safety. Each for the Nation’s responsibility I to and cannot subscribe important, is the Constitution the First Amend absolutism for of unlimited a doctrine provisions. .other First downgrading of ment at the cost majority never commanded a absolutism has Amendment Minnesota, Near v. 283 example, See, of Court. this States, Schenck and v. United 697, 708 (1931), U. S. here is (1919). weighing, What needed a U. S. is right broad of developed standards, of the upon properly very right narrow press print and of yet are not prevent. Such standards Government are in parties disagreement here as developed. should be. But even the news-. what those standards there are where restraint papers concede situations . in and is constitutional. Mr. Justice order Holmes Schenck, us a when he said gave suggestion proximity When question degree. “It is a a many things might is at war be said nation are such a hindrance to its effort that peace time of long utterance will be endured as men their so pro- that no Court could- them as fight regard by any S., constitutional right.” tected U. at 52. developed remand These cases to be
I therefore would course, but on schedule expeditiously, permitting the presentation of evidence from both orderly sides, with use if discovery, necessary, as authorized rules, and preparation with the oral briefs, argument, opinions and court of quality better than been seen point. In this making last statement, this criticize lawyer no or judge. past I know from personal experi- ence agony pressure time preparation .the litigation. But these cases and. issues involved and one, the courts, including this deserve better than has *38 been produced far. thus
It be if well that cases were -these to de- allowed velop they should be as developed, and to be tried as lawyers try should them and courts as hear should them, pressure free of and panic and sensationalism, other light would be shed on the situation and contrary con- - siderations, for me, might prevail. But that is not the present posture of the litigation. Court, however, decides cases today other
way. I therefore add one final comment.
I strongly urge, and sincerely hope, these two newspapers will fully aware of their responsi- ultimate to bilities the United States America. Judge Wilkey, in dissenting the District of Columbia case, after review of only the affidavits before his (the court basic papers had not then been made available by either party), con- cluded that there were a number of examples of docu- ments if that, possession of the Post, and if pub-' lished, “could clearly result great, harm to the nation,” and he defined “harm” to mean “the death of soldiers, the destruction of alliances, greatly increased diffi- culty 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 only ' the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey’s statements possible have foundation.- I,therefore share been already has not damage hope I his concern. with if, done, been damage however, If, done. proceed newspapers these today, action Court’s there- results there documents the critical publish alliances, destruction soldiers, thé death “the from our with difficulty negotiation increased the greatly negotiate,” diplomats our inability of enemies, the prolongation add factors might list which States United freeing delay of further war and where know will people the Nation’s then prisoners, rests. consequences sad for these responsibility