Document ID: A:\NYTIMES1.TXT NEW YORK TIMES CO. v. UNITED STATES No. 1873 SUPREME COURT OF THE UNITED STATES 403 U.S. 713; 91 S. Ct. 2140; 1971 U.S. LEXIS 100; 29 L. Ed. 2d 822; 1 Media L. Rep. 1031 June 26, 1971, Argued June 30, 1971, Decided * * 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. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. DISPOSITION: No. 1873, 444 F.2d 544, reversed and remanded; No. 1885, U. S. App. D. C. SYLLABUS: The United States, which brought these actions to enjoin publication in the New estraint." COUNSEL: Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the Solicitor General Griswold argued the cause for the United States in both cases. With William R. Glendon argued the cause for respondents in No. 1885. With him on the brief Briefs of amici curiae were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seve Union; [***2] and by Victor Rabinowitz for the National Emergency Civil Liberties Comm OPINIONBY: [**2141] PER CURIAM OPINION: [*714] We granted certiorari in these cases in which the United States seeks m Policy." Post, pp. 942, 943. "Any system of prior restraints of expression comes to this Court bearing a heavy presu "thus carries a heavy burden of showing justification for the imposition of such a restra e District Court for the District of Columbia and the Court of Appeals for the District of The judgment of the Court of Appeals [***3] for the District of Columbia Circuit is irming the judgment of the District Court for the Southern District of New York. The stay So ordered. CONCURBY: BLACK; DOUGLAS; BRENNAN; STEWART; WHITE; MARSHALL CONCUR: 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 I believe [*715] that every moment's continuance of the injunctions against these new rm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse t me of my Brethren are apparently willing to hold that the publication of news may sometime Our Government was launched in 1789 with the adoption of the Constitution. The Bill of o hold that the First Amendment does not mean what it says, but rather means that the Gove In seeking injunctions against these newspapers and in its presentation to the Court, t d it because the document contained no Bill of Rights to safeguard certain basic freedoms. , press, assembly, [***5] and speech. In response to an overwhelming public clamor, J proposed what later became the First Amendment in three parts, two of which are set out be the press, as one of the great bulwarks of liberty, shall be inviolable." n2 (Emphasis ad ginal Constitution. The Bill of Rights changed the original Constitution into a new chart s of the Court appear to agree that the general powers of the Government adopted in the or imagine no greater perversion of history. Madison and the other Framers of the First Ame reedom . . . of the press . . . ." Both the history and language of the First Amendment su - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 In introducing the Bill of Rights in the House of Representatives, Madison said: "Bu n particular rights . . . ." 1 Annals of Cong. 433. Congressman Goodhue added: "It is the at 426. n2 The other parts were: "The civil rights of none shall be abridged on account of religious belief or worship, "The people shall not be restrained from peaceably assembling and consulting for their - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***7] In the First Amendment the Founding Fathers gave the free press the protection it must ed so that the press would remain forever free to censure the Government. The press was p And paramount among the responsibilities of a free press is the duty to prevent any part o condemnation for their courageous reporting, the New York Times, the Washington Post, and tnam war, the newspapers nobly did precisely that which the Founders hoped and trusted the The Government's case here is based on premises entirely different from those that [** "Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well kno ous that 'no law' does not mean 'no law', and I would seek to persuade the Court that that make it impossible for the Executive to function or to protect the security of the United And the Government argues in its brief that in spite of the First Amendment, "the authorit ted sources: the constitutional power of the President over the conduct of foreign affairs - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Tr. of Oral Arg. 76. [***9] n4 Brief for the United States 13-14. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In other words, we are asked to hold that despite the First Amendment's emphatic comman nal security." The Government does not even attempt to rely on any act of Congress. Inste e of equity, presidential power and national security, even when the representatives of th [*719] post, at 721-722. To find that the President has "inherent power" to halt the es to make "secure." No one can read the history of the [***10] adoption of the First Ame or all time. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Comp atives, Madison said: "If they [the first ten amendments] are incorporated into the Consti ery assumption of power in the Legislative or Executive; they will be naturally led to res - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The word "security" is a broad, vague generality whose contours should not be invoked e government provides no real security for our Republic. The Framers of the First Amendmen by providing that freedom of speech, press, religion, and assembly should not be abridged. e punished for attending a meeting run by Communists. "The greater the importance of safeguarding the community from incitements to the overthro 720] assembly in order to maintain the opportunity for free political discussion, to the public, the very foundation of constitutional government." [***12] n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 De Jonge v. Oregon, 299 U.S. 353, 365. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 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 f It should be noted at the outset that the First Amendment provides that "Congress shall - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See nting opinion which MR. JUSTICE BLACK joined); Yates v. United States, 354 U.S. 298, 339 ( rrison v. Louisiana, 379 U.S. 64, 80 (my concurring opinion which MR. JUSTICE BLACK joined - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***13] There is, moreover, no statute barring the publication by the press of the material whi any document, writing . . . or information relating to the national defense which informa same to any person not entitled to receive it . . . shall be fined [*721] not more th The Government suggests that the word "communicates" is broad enough to encompass publi There are eight sections in the chapter on espionage and censorship, @@ 792-799. In th collects, records, publishes, or communicates . . . [the disposition of armed forces]." Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photograph Section 798 relating to cryptography applies to whoever: "communicates, furnishes, tran - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 These documents contain data concerning the communications system of the United Stat - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus it is apparent that Congress was capable of and did distinguish between publishing The other evidence that @ 793 does not apply to the press is a rejected version of @ 79 proclamation, declare the existence of such emergency and, by proclamation, prohibit the such character that it is or might be useful to the [*722] enemy." 55 Cong. Rec. 1763 Judge Gurfein's holding in the Times case that this Act does not apply to this case was "Nothing in this Act shall be construed to authorize, require, or establish military or on 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. Unite "to declare War." Nowhere are presidential wars authorized. We need not decide therefore These disclosures n3 may have a serious impact. But that is no basis for sanctioning "While reckless assaults upon public men, and efforts to bring obloquy upon those who are buse is greater, and it is believed to be less, than that which characterized the period i plied, crime has grown to most serious proportions, and the danger of its protection by un *17] of a vigilant and courageous press, especially in great cities. The fact that the g with official misconduct." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Ther We start then with a case where there already is rather wide distribution of the material . None of it is more recent than 1968. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. The Government says that it has inherent [***18] powers to go into court and obtain Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in no uncertain te The dominant purpose of the First Amendment was to prohibit the widespread practice of n law of seditious libel to punish the dissemination of material that is embarrassing to t will, I think, go down in history as the most dramatic illustration of that principle. A latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic error " debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269-270. I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay o The stays in these cases that have been in effect for more than a week constitute a flo MR. JUSTICE BRENNAN, concurring. I I write separately in these cases only to emphasize what should be apparent: that our j block the publication of material sought to be suppressed by the Government. So far as I presented, the necessary haste with which decisions were reached, the magnitude of the in justified at least some of the restraints heretofore imposed in these cases. Certainly it be assumed that some of the interim restraints were proper in the two cases before us, th whatever values there may be in the preservation of novel questions for appellate review m of the kind presented by these cases. II The error that has pervaded these cases from the outset was the granting of any injunct be [***21] enjoined "could," or "might," or "may" prejudice the national interest in v [*726] may result. * Our cases, it is true, have indicated that there is a single, ex y arise only when the Nation "is at war," Schenck v. United States, 249 U.S. 47, 52 (1919) of transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716 eacetime the suppression of information that would set in motion a nuclear holocaust, in n ppening of an event of that nature. "The chief purpose of [the First Amendment's] guaranty must inevitably, directly, [*727] and immediately cause the occurrence of an event kin cient: for if the Executive Branch seeks judicial aid in preventing publication, it must i olated the First Amendment -- and not less so because that restraint was justified as nece ommands that no injunction may issue. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - * Freedman v. Maryland, 380 U.S. 51 (1965), and similar cases regarding temporary restr s." Roth v. United States, 354 U.S. 476, 481 (1957). Here there is no question but that th njoined for a time because of the presence of an overwhelming national interest. Similarl ppress the ideas expressed therein. And the copyright laws, of course, protect only the f - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***23] MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring. In the governmental structure created by our Constitution, the Executive is endowed wit hes, has been pressed to the very hilt since the advent of the nuclear missile age. For b f power than does, say, a prime minister of a country with a parliamentary form of governm - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The President's power to make treaties and to appoint ambassadors is, of course, lim pport Armies," and "provide and maintain a Navy." And, of course, Congress alone can decla s have suffered approximately half a million casualties in various parts of the world. [* n2 See Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103; Hirabayashi .S. 934. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In the absence of the governmental checks and balances present in other areas of our na nry -- in an informed and critical public opinion which alone can here protect the values ent. 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 mai utual trust unless they can be assured that their confidences will be kept. And within ou ot communicate with each other freely, frankly, and in confidence. In the area of basic n I think there can be but one answer to this dilemma, if dilemma it be. The responsibil and the maintenance of our national defense, then under the Constitution the Executive mu bility, requiring judgment and wisdom of a high order. I should suppose that moral, polit For when everything is classified, then nothing is classified, and the system becomes on hallmark of a truly effective internal security system would be the maximum possible disc onal duty of the Executive -- as a matter of sovereign prerogative and not as a matter of responsibilities in the fields of international relations and national defense. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 "It is quite apparent that if, in the maintenance of our international relations, em egotiation and inquiry within the international field must often accord to the President a better opportunity of knowing the conditions which prevail in foreign countries, and espec cy in respect of information gathered by them may be highly necessary, and the premature d presentatives the instructions, correspondence and documents relating to the negotiation o 299 U.S. 304, 320. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***27] This is not to say that Congress and the courts have no role to play. Undoubtedly Cong d several of them are of very colorable relevance to the apparent circumstances of these c e is brought. Moreover, if Congress should pass a specific law authorizing civil proceedi But in the cases before us we are asked neither to construe specific regulations nor to revent the publication by two newspapers of material that the Executive Branch insists sho say that disclosure of any of them will surely result in direct, immediate, and irreparab nts of the Court. [**2150] MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring. I concur in today's judgments, but only because of the concededly extraordinary protect an injunction against publishing information about government plans or operations. n1 Nor damage to public interests. Indeed, I am confident that their disclosure will have that ese cases, at least in the absence of [***29] express and appropriately limited congres - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The Congress has authorized a strain of prior restraints against private parties in n the exercise of protected rights. See 29 U. S. C. @ 160 (c). Similarly, the Federal Tr trict what may be spoken or written under certain circumstances. See, e. g., NLRB v. Giss nd no one denies that a newspaper can properly be enjoined from publishing the copyrighted g their accounts of important events. However, those enjoined under the statutes relating he complainant is a private copyright holder enforcing a private right. These situations any statute. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***30] [*732] The Government's position is simply stated: The responsibility of the Executiv paper story whenever he can convince a court that the information to be revealed threatens publication would be lawful under relevant criminal statutes enacted by Congress, and rega - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The "grave and irreparable danger" standard is that asserted by the Government in th termine whether disclosure of certain items specified with particularity by the Government - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***31] At least in the absence of legislation by Congress, based on its own investigations and or inhibiting publications by the press. Much of the difficulty inheres in the "grave and of little guidance to other courts in other cases, for the material at issue here would n ed States has not met its burden, the material remains sealed in court records and it is [ minal sanctions, a responsible press may choose never to publish the more sensitive materi gressional guidance and direction. It is not easy to reject the proposition urged by the United States and to deny relief of prior-restraint cases. Normally, publication will occur and the damage be done before y occurred. The fact of a massive breakdown in security is known, access to the documents What is more, terminating the ban on publication of the relatively few sensitive docume criminal action if they do. Prior restraints require an unusually heavy justification und inal publication. That the Government mistakenly chose to proceed by injunction does not When the Espionage Act was under consideration in [*734] 1917, Congress eliminated categories of information related to the national defense. n3 Congress at that time was un itant of such power was the power to "filter out the news to the people through some man." osecution if they insisted on publishing information of the type Congress had itself deter ormation as to the movements of the fleet, the troops, the aircraft, the location of powde - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 "Whoever, in time of war, in violation of reasonable regulations to be prescribed by disposition of any of the armed forces, ships, aircraft, or war materials of the United S ended for the fortification or defense of any place, or any other information relating to n4 Senator Ashurst also urged that "'freedom of the press' means freedom from the restr iolation of the laws of libel, slander, and treason." 55 Cong. Rec. 2005. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***35] [*735] The Criminal Code contains numerous provisions potentially relevant to these c nowing and willful publication of any classified information concerning the cryptographic f any of the material here [**2153] at issue is of this nature, the newspapers are presu nvictions under these sections on facts that would not justify the intervention of equity - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Title 18 U. S. C. @ 797 provides: "On and after thirty days from the date upon which the President defines any vital mili y any photograph, sketch, picture, drawing, map, or graphical representation of the vital concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or imprisoned not more than one year, or both." [***36] n6 In relevant part 18 U. S. C. @ 798 provides: "(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise m reign government to the detriment of the United States any classified information -- "(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic s "(2) concerning the design, construction, use, maintenance, or repair of any device, ap "(3) concerning the communication intelligence activities of the United States or any f "(4) obtained by the process of communication intelligence from the communications of a "Shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both." n7 The purport of 18 U. S. C. @ 798 is clear. Both the House and Senate Reports on the communication intelligence systems of the United States, and explaining that "this bill m a crime to reveal methods used by this Nation in breaking the secret codes of a foreign na g." H. R. Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute legislation was deemed inadequate. "At present two other acts protect this information, but only in a limited way. These e penalized only if it can be proved that the person making the revelation did so with an d to protect against knowing and willful publication or any other revelation of all import Section 798 obviously was intended to cover publications by nonemployees of the Government xt of this footnote, is S. Rep. No. 111, 81st Cong., 1st Sess. (1949). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***37] The same would be true under those sections of the Criminal Code casting a wider net to ) willfully to communicate or cause to be communicated that document to any person not ent ed in 1950 because pre-existing law provided no [*738] penalty for the unauthorized po it is deemed advisable to require their surrender in such a case, regardless of demand, es (1950). Of course, in the cases before us, the unpublished documents have been demanded ), the words "national defense" as used in a predecessor of @ 793 were held by a unanimous ties of national preparedness" -- and to be "sufficiently definite to apprise the public o national defense" is obviously not limited to that threatening "grave and irreparable" in - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Section 793 (e) of 18 U. S. C. provides that: "(e) Whoever having unauthorized possession of, access to, or control over any document fense, or information relating to the national defense which information the possessor has to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transm 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 sh ore persons conspire to violate any of the foregoing provisions of this section, and one o offense which is the object of such conspiracy." [***39] n9 The amendment of @ 793 that added subsection (e) was part of the Subversive Activiti s the purposes of the amendment: "Section 18 of the bill amends section 793 of title 18 of the United States Code (espio 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 u d States or to the advantage of any foreign nation.' The phrase 'which information the pos he national defense' and not the other items enumerated in the subsection. The fourth par subject to demand therefor. Those who have unauthorized possession of such items are trea "(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessor the unauthorized possession of such items unless a demand for them is made by the person in such a case, regardless of demand, especially since their unauthorized possession may b he person entitled to receive the items would be a necessary element of an offense under s horized." 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 fo "information" the Government need not prove an intent to injure the United States or to b er parts of the predecessor to @ 793, see 312 U.S., at 21-22 -- parts that imposed differe the Act of which it was a part, it seems undeniable that a newspaper, as well as others u rt ruled that "communication" did not reach publication by a newspaper of documents relati tion. [***40] n10 Also relevant is 18 U. S. C. @ 794. Subsection (b) thereof forbids in time of war t espect to the plans or conduct . . . of any naval or military operations . . . or any othe - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is thus clear that Congress has addressed itself to the problems of protecting the s . 579, 585-586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has not rrent effect on the responsible as well as the irresponsible press. I am not, of course, n. That matter must await resolution in the context of a criminal proceeding if one is i purported to govern these injunctive proceedings. MR. JUSTICE MARSHALL, concurring. The Government contends that the only issue in these cases is whether in a suit by the danger to the security of the United States.'" Brief for the United States 7. With all du ss has the power to make law. In these cases there is no problem concerning the President's power to classify informa , to classify documents and information. See, e. g., 18 U. S. C. @ 798; 50 U. S. C. @ 783 disclose information and by taking precautions to prevent leaks. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 See n. 3, infra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The problem here is whether in these particular cases the Executive Branch has authorit argues that in addition to the inherent power of any government to protect itself, the Pre effectively with foreign nations and to conduct the military affairs of the country. Of c ion as Commander in Chief. Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. t may be that under whatever inherent powers the Government may have, as well as the impli isdiction of this Court as an aid to prevent the publication of material damaging to "nati - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It would, however, be utterly inconsistent with [***44] the concept of separation of basic concept of these co-equal branches of Government if when the Executive Branch has a ned conduct. The Constitution provides that Congress shall make laws, the President execu and the Executive Branch can "make law" without regard to the action of Congress. It may nient to enforce a contempt order than to seek a criminal conviction in a jury trial. Mor believe are violating the law. But convenience and political considerations of the [*74 In these cases we are not faced with a situation where Congress has failed to provide t e problem of protecting the military and strategic secrets of the United States. This con uments, appliances, and information. The bulk of these statutes is found in chapter 37 of lating the various statutes. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 There are several other statutory provisions prohibiting and punishing the dissemina ough 2166 relating to the authority of the Atomic Energy Commission to classify and declas y Commission to classify certain information. Title 42 U. S. C. @ 2274, subsection (a), p advantage to any foreign nation . . . ." Subsection (b) of @ 2274 provides lesser penalti n advantage to any foreign nation . . . ." Other sections of Title 42 of the United States ting "Restricted Data" and provide penalties for employees and former employees of the Ato , 56 Stat. 390, prohibits the making of any sketch or other representation of military ins ended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions any corporation which is owned by the United States to communicate material which has bee r any Communist organization. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***46] Thus it would seem that in order for this Court to issue an injunction it would require t is a [**2157] traditional axiom of equity that a court of equity will not do a usele Injunctions @@ 58-60a (1909). Here there has been no attempt to make such a showing. The there is a conspiracy to commit future crimes. If the Government had attempted to show that there was no effective remedy under tradit er there has been a violation of a particular statute or decide the constitutionality of a [*745] At least one of the many statutes in this area seems relevant to these cases. book . . . or note relating to the national defense, or information relating to the nation y communicates, delivers, transmits . . . the same to any person not entitled to receive i 10,000 or imprisoned not more than ten years, or both." Congress has also made it a crime It is true that Judge Gurfein found that Congress had not made it a crime to publish th stories. And that view has some support in the legislative history and conforms with the 's view of the statute is not, however, the only plausible construction that could be give Even if it is determined that the Government could not in good faith bring criminal pro the President the power he seeks here and made the current activity of the newspapers unla town Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). On at least two occasions Congress has refused to enact legislation that would have mad e Act, still the basic provisions of @ 793, Congress rejected a proposal to give the Presi to the enemy. The proposal provided that: "During any national emergency resulting from a war to which the United States is a par icating of, or the attempting to publish or communicate any information relating to the na punished by a fine of not more than $ 10,000 or by imprisonment for not more than 10 years ment or its representatives or the publication of the [***50] same." 55 Cong. Rec. 1763 Congress rejected this proposal after war against Germany had been declared even though ma and requested that the decision to provide such power be reconsidered. Instead, [*747] In 1957 the United States Commission on Government Security found that "airplane journa art for security reasons." In response to this problem the Commission proposed that "Congr or 'top secret,' knowing, or having reasonable grounds to believe, such information to hav See 103 Cong. Rec. 10447-10450. If the proposal that Sen. Cotton championed on the floor s 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 ant the authority the Government seeks from this Court. In either case this Court does no Court to take on itself the burden of enacting law, especially a law that Congress has ref I believe that the judgment of the United States Court of Appeals for the District of C t remands the case for further hearings. DISSENTBY: BURGER; HARLAN; BLACKMUN DISSENT: MR. CHIEF JUSTICE BURGER, dissenting. So clear are the constitutional limitations on prior restraint against expression, that on to be concerned with cases involving prior restraints against news reporting on matters to this basic constitutional principle, however, does not make these cases simple. In th pecifically the effective exercise of certain constitutional powers of the Executive. Onl asy. These [***53] cases are not simple for another and more immediate reason. We do not 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 a I suggest we are in this posture because these cases have been conducted in unseemly ha The prompt [*749] setting of these cases reflects our universal abhorrence of prior r Here, moreover, the frenetic haste is due in large part to the manner in which the Time f these cases and was not warranted. The precipitate action of this Court aborting trials The newspapers make a derivative claim under the First Amendment; they denominate this as an absolute. Of course, the First Amendment right itself is not an absolute, as Justi f which Chief Justice Hughes mentioned by way of example in Near v. Minnesota. There are n hey been properly considered in the trial courts, free from unwarranted deadlines and fren te, in terms of hours, is unwarranted in light of the long period the Times, by its [***5 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 As noted elsewhere the Times conducted its analysis of the 47 volumes of Government enterprise from others. Meanwhile the Times has copyrighted its material and there were s afford it a protection, analogous to prior restraint, against all others -- a protection t - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*750] It is not disputed that the Times has had unauthorized possession of the docum ng all of this time, the Times, presumably in its capacity as trustee of the public's "rig alysis of 7,000 pages of complex material drawn from a vastly greater volume of material w uired by someone, along with all the counsel, trial judges, and appellate judges be placed nstanter. Would it have been unreasonable, since the newspaper could anticipate the Government's ublication? Stolen or not, if security was not in fact jeopardized, much of the material ted editorially to be [***57] the duty of an honorable press -- the newspapers and Gover , if necessary. To me it is hardly believable that a newspaper long regarded as a great or secret government documents. That duty, I had thought -- perhaps naively -- was to re ulated or not, removed any possibility of orderly litigation of the issues. If the action - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Interestingly the Times explained its refusal to allow the Government to examine its while denying that the Government of the United States has that power. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***58] Our grant of the writ of certiorari before final judgment in the Times case aborted the The consequence of all this melancholy series of events is that we literally do not kno t time for adequate treatment either in the prior proceedings or in this Court. It is int they pointed out that they had been working literally "around the clock" and simply were u MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN but I am not prepared to reach the merits. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 With respect to the question of inherent power of the Executive to classify papers, to this Court. No statute gives this Court express power to establish and enforce the ut y of its internal operations by whatever judicial measures may be required. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***59] I would affirm the Court of Appeals for the Second Circuit and allow the District Court ve priority to the Times case to the exclusion of all other business of that court but I w I should add that I am in general agreement with much of what MR. JUSTICE WHITE has exp [**2161] We all crave speedier judicial processes but when judges are pressured as in MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenti These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenti "Great cases like hard cases make bad law. For great cases are called great, not by re to the feelings and distorts the judgment. These immediate interests exercise a kind of h With all respect, I consider that the Court has been almost irresponsibly feverish in deal Both the Court of Appeals for the Second Circuit and the Court of Appeals for the Distr tion for interim relief were filed in this Court on June 24 at about 11 a. m. The applica une 26 at 11 a. m., a course which I joined only to avoid the possibility of even more per d in the [***61] Times case did not arrive until 7 or 8 o'clock that same night. The br This frenzied train of events took place in the name of the presumption against prior r rt to shun such a precipitate timetable. In order to decide the merits of these cases pro 1. Whether the Attorney General is authorized to bring these suits in the name of the U e construction and validity of a singularly opaque statute -- the Espionage Act, 18 U. S. 2. Whether the First Amendment permits the federal courts to enjoin publication of stor 3. Whether the threat to publish highly secret documents is of itself a sufficient impl n of such a breach of secrecy. 4. Whether the unauthorized disclosure of any of these particular documents would serio 5. What weight should be given to the opinion of high officers in the Executive Branch 6. Whether the newspapers are entitled to retain and use the documents notwithstanding papers received them with knowledge that they [**2162] had been feloniously acquired. C 7. Whether the threatened harm to the national security or the Government's possessory a. The strong First Amendment policy against prior restraints on publication; [*755] c. The extent to which the materials at issue have apparently already been otherwise di These are difficult questions of fact, of law, and of judgment; the potential consequen se cases the kind of consideration they deserve. It is a reflection on the stability of t dered by the torrent of publicity that has attended these litigations from their inception - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - * The hearing in the Post case before Judge Gesell began at 8 a. m. on June 21, and his Judge Gurfein was held on June 18 and his decision was rendered on June 19. The Governme rt rendered its decision on the following afternoon. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***64] Forced as I am to reach the merits of these cases, I dissent from the opinion and judgm ped form, even though in different circumstances I would have felt constrained to deal wit It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in t to present its case [*756] to the District Court. At the least this conclusion was no In the Post litigation the Government had more time to prepare; this was apparently the there is another and more fundamental reason why this judgment cannot stand -- a reason wh . It is plain to me that the scope of the judicial function in passing upon the activitie of powers upon which our constitutional system rests. In a speech on the floor of the House of Representatives, Chief Justice John Marshall, "The President is the sole organ of the nation in its external relations, and its sole From that time, shortly after the founding of the Nation, to this, there has been no subst s. From this constitutional primacy in the field of foreign affairs, it seems to [**2163] for [***66] the papers leading up to the negotiation of the Jay Treaty: "The nature of foreign negotiations requires caution, and their success must often depe or contemplated would be extremely impolitic; for this might have a pernicious influence o esidents 194-195 (1896). The power to evaluate the "pernicious influence" of premature disclosure is not, howeve ust review the initial Executive determination to the point of satisfying itself that the ment of judicial control." Cf. United States v. Reynolds, 345 U.S. 1, 8 (1953). [***67] M head of the Executive Department concerned -- here the Secretary of State or the Secretar f state. See id., at 8 and n. 20; Duncan v. Cammell, Laird & Co., [1942] A. C. 624, 638 ( But in my judgment the judiciary may not properly go beyond these two inquiries and red "The very nature of executive decisions as to foreign policy is political, not judicial. lex, and involve large elements of prophecy. They are and should be undertaken only by th facilities nor responsibility and which has long been held to belong in the domain of poli Even if there is some room for the judiciary to override the executive determination, i ost litigation that the conclusions of the Executive were given even the deference owing t Accordingly, I would vacate the judgment of the Court of Appeals for the District of Co y should be afforded the Government for procuring from the Secretary of State or the Secre with the views expressed in this opinion. And for the reasons stated above I would affir [**2164] Pending further hearings in each case conducted under the appropriate ground g courts from maintaining the status quo long enough to act responsibly in matters of such MR. JUSTICE BLACKMUN, dissenting. I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much th At this point the focus is on only the comparatively few documents specified by the Gov is gone and the sensationalism is eased, still feel the urge so to do. But we are concerned here with the few [***70] documents specified from the 47 volum "Great cases like hard cases make bad law. For great cases are called great, not by re torts the judgment. These immediate interests exercise a kind of hydraulic pressure . . . The present cases, if not great, are at least unusual in their posture and implications, a The New York Times clandestinely devoted a period of three months to examining the 47 v . It immediately assumed, and ever since has maintained, a frenetic pace and character. r otherwise, was abhorrent and was to be deemed violative of the First Amendment and of th lier 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 -- wit ed and largely assumed facts without the careful deliberation that, one would hope, should he judges, both trial and appellate, had not yet examined the basic material when the case n Post, on the excuse that it was trying to protect [***72] its source of information, With such respect as may be due to the contrary view, this, in my opinion, is not the w egedly concern the Nation's [*761] [**2165] vital welfare. The country would be n s no later than 1968, already about three years ago, and the Times itself took three month The First Amendment, after all, is only one part of an entire Constitution. Article II afety. Each provision of the Constitution is important, and I cannot subscribe to a doctr y of this Court. See, for example, Near v. Minnesota, 283 U.S. 697, 708 (1931), and Schen e very narrow right of the Government to prevent. Such standards are not yet developed. 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 tected by any constitutional right." 249 U.S., at 52. I therefore would remand these cases to be developed expeditiously, of course, [***74 , and with the preparation of briefs, oral argument, and court opinions of a quality bette in the preparation of litigation. But these cases and the issues involved and the courts, It may well be that if these cases were allowed to develop as they should be developed, and contrary considerations, for me, might prevail. But that is not the present posture The Court, however, decides the cases today the other way. I therefore add one final c I strongly urge, and sincerely hope, that these two newspapers will be fully aware of t idavits before his court (the basic papers had not then been made available by either part nation," and he defined "harm" to mean "the death of soldiers, the destruction of alliance east some cursory study not only to the affidavits, but to the material itself. I regret t damage has not already been done. If, however, damage has been done, and if, with the C greatly increased difficulty of negotiation with our enemies, the inability of our diplom he Nation's people will know where the responsibility for these sad consequences rests.