NEW YORK TIMES CO. V. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88B00443R000903810015-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 52
• Document Creation Date: December 22, 2016
• Document Release Date: February 7, 2011
• Sequence Number: 15
• Publication Date: June 26, 1971
• Content Type: MISC

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NEW YORK TIMES CO. v. UNITED STATES 713
nd sentences with-
Witherspoon. 222
While the peti-
is Court, the Ten-
to authorize the
filing of bills of
ne, for good cause
app. 1970). With
at sound judicial
;he judgments be-
ennessee Supreme
)ortunity to apply
statute for leave
In so doing we,
rits of petitioners'
the new Tennessee
It is so ordered.
NEW YORK TIMES CO. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 1873. Argued June 26, 1971-Decided June 30, 1971*
The United States, which brought these actions to enjoin publication
in the New York Times and in the Washington Post of certain
classified material, has not met the "heavy burden of showing
justification for the enforcement of such a [prior] restraint."
No. 1873, 444 F. 2d 544, reversed and remanded; No. 1885, -
U. S. App. D. C. -, 446 F. 2d 1327, affirmed.
Alexander M. Bickel, argued the cause for petitioner in
No. 1873. With him on the brief were William E.
Hegarty and Lawrence J. McKay.
Solicitor General Griswold argued the cause for the
United States in both- cases. With him on the brief were
Assistant Attorney General Mardian and Daniel M.
Friedman.
William R. Glendon argued the cause for respondents
in No. 1885. With him on the brief were Roger A. Clark,
Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley
Godo f sky.
Briefs of amici curiae were filed by Bob Eckhardt and
Thomas I. Emerson for Twenty-Seven Members of Con-
gress; by Norman Dorsen, Melvin L. Wulf, Burt Neu-
borne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin
M. Karpatkin for the American Civil Liberties Union;
and by Victor Rabinowitz for the National Emergency
Civil Liberties Committee.
*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.
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714 OCTOBER TERM, 1970
Per Curiam 403 U. S.
PER CURIAM.
We granted certiorari in these cases in which the United
States seeks to enjoin the New York Times and the Wash-
ington Post from publishing the contents of a classified
study entitled "History of U. S. Decision-Making Process
on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its con-
stitutional validity." Bantam Books, Inc. v. Sullivan,
372 U. S. 58, 70 (1963) ; see also Near v. Minnesota, 283
U. S. 697 (1931). The Government "thus carries a heavy
burden of showing justification for the imposition of
such a restraint." Organization for a Better Austin v.
Keefe, 402 U. S. 415, 419 (1971). The District Court for
the Southern District of New York in the New York
Times case and the District Court for the District of
Columbia and the Court of Appeals for the District of
Columbia Circuit in the Washington Post case held that
the Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District
of Columbia Circuit is therefore affirmed. The order of
the Court of Appeals for the Second Circuit is reversed
and the case is remanded with directions to enter a judg-
ment affirming the judgment of the District Court for the
Southern District of New York. The stays entered June
25, 1971, by the Court are vacated. The judgments shall
issue forthwith.
So ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS
joins, concurring.
I adhere to the view that the Government's case
against the Washington Post should have been dismissed
and that the injunction against the New York Times
should have been vacated without oral argument when
the cases were first presented to this Court. I believe
that every moi
against these
indefensible, an
Amendment. F
completely that
Court of Appeals
reverse the judg
Second Circuit f
DOUGLAS and Bs
that some of my
that the publicat:
Such a holding
Amendment.
Our Governmei
tion of the Const
the First Amends
first time in the
Republic, the fed
First Amendment
means that the G
current news of
country.
In seeking inju:
in its presentatior
seems to have forg
of the First Amei
adopted, many pe
document containe
tain basic freedoir
1 In introducing the :
Madison said: "[B]ut
who opposed [the Con
twin effectual provisiol
rights ...." 1 Ann:
added: "[11t is the wis)
should be added to the
their liberties from the
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hich the United
3 and the Wash-
s of a classified
Making Process
-ession comes to
against its con-
nc. v. Sullivan,
Minnesota, 283
3 carries a heavy
imposition of
setter Austin v.
'istrict Court for
the New York
the District of
the District of
;t case held that
ien. We agree.
3 for the District
1. The order of
.rcuit is reversed
to enter a judg-
?ict Court for the
ays entered June
judgments shall
So ordered.
wernment's case
re been dismissed
Tew York Times
argument when
_,ourt. I believe
NEW YORK TIMES CO. v. UNITED STATES 715
713 BLACK, J., concurring
that every moment's continuance of the injunctions
against these newspapers amounts to a flagrant,
indefensible, and continuing violation of the First
Amendment. Furthermore, after oral argument, I agree
completely that we must affirm the judgment of the
Court of Appeals for the District of Columbia Circuit and
reverse the judgment of the Court of Appeals for the
Second Circuit for the reasons stated by my Brothers
DOUGLAS and BRENNAN. In my view it is unfortunate
that some of my Brethren are apparently willing to hold
that the publication of news may sometimes be enjoined.
Such a holding would make a shambles of the First
Amendment.
Our Government was launched in 1789 with the adop-
tion of the Constitution. The Bill of Rights, including
the First Amendment, followed in 1791. Now, for the
first time in the 182 years since the founding of the
Republic, the federal courts are asked to hold that the
First Amendment does not mean what it says, but rather
means that the Government can halt the publication of
current news of vital importance to the people of this
country.
In seeking injunctions against these newspapers and
in its presentation to the Court, the Executive Branch
seems to have forgotten the essential purpose and history
of the First Amendment. When the Constitution was
adopted, many people strongly opposed it because the
document contained no Bill of Rights to safeguard cer-
tain basic freedoms.' They especially feared that the
1 In introducing the Bill of Rights in the House of Representatives,
Madison said: "[B]ut I believe that the great mass of the people
who opposed [the Constitution], disliked it because it did not con-
tain effectual provisions against the encroachments on particular
rights ...." 1 Annals of Cong. 433. Congressman Goodhue
added: "[I]t is the wish of many of our constituents, that something
should be added to the Constitution, to secure in a stronger manner
their liberties from the inroads of power." Id., at 426.
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2 The other parts were:
"The civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be established, nor
shall the full and equal rights of conscience be in any manner, or
on any pretext, infringed."
"The people shall not be restrained from peaceably assembling and
consulting for their common good; nor from applying to the Legis-
lature by petitions, or remonstrances, for redress of their grievances."
1 Annals of Cong. 434.
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716 OCTOBER TERM, 1970
BLACK, J., concurring 403 U. S.
new powers granted to a central government might be
interpreted to permit the government to curtail freedom
of religion, press, assembly, and speech. In response to
an overwhelming public clamor, James Madison offered
a series of amendments to satisfy citizens that these great
liberties would remain safe and beyond the power of
government to abridge. Madison proposed what later
became the First Amendment in three parts, two of
which are set out below, and one of which proclaimed :
"The people shall not be deprived or abridged of their
right to speak, to write, or to publish their sentiments;
and the freedom of the press, as one of the great bul-
warks of liberty, shall be inviolable." 2 (Emphasis
added.) The amendments were offered to curtail and
restrict the general powers granted to the Executive, Leg-
islative, and Judicial Branches two years before in the
original Constitution. The Bill of Rights changed the
original Constitution into a new charter under which no
branch of government could abridge the people's 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 the specific and emphatic
guarantees of the Bill of Rights adopted later. I can
imagine no greater perversion of history. Madison and
the other Framers of the First Amendment, able men
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'ernment might be
to curtail freedom
,h. In response to
es Madison offered
ins that these great
?ond the power of
?oposed what later
free parts, two of
which proclaimed :
r abridged of their
i their sentiments;
of the great bul-
ile." 2 (Emphasis
red to curtail and
the Executive, Leg-
rears before in the
tights changed the
ter under which no
the people's free-
issembly. Yet the
tubers of the Court
ers of the Govern-
ition should be in-
-cific and emphatic
ipted later. I can
pry. Madison and
ndment, able men
on account of religious
;ion be established, nor
be in any manner, or
aceably assembling and
applying to the Legis-
.ss of their grievances."
that they were, wrote in language they earnestly believed
could never be misunderstood : "Congress shall make no
law ... abridging the freedom ... of the press ...."
Both the history and language of the First Amendment
support the view that the press must be left free to
publish news, whatever the source, without censorship,
injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave
the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve
the governed, not the governors. The Government's
power to censor the press was abolished so that the
press would remain forever free to censure the Govern-
ment. The press was protected so that it could bare
the secrets of government and inform the people. Only
a free and unrestrained press can effectively expose de-
ception in government. And paramount among the re-
sponsibilities of a free press is the duty to prevent any
part of the government from deceiving the people and
sending them off to distant lands to die of foreign fevers
and foreign shot and shell. In my view, far from
deserving condemnation for their courageous reporting,
the New York Times, the Washington Post, and other
newspapers should be commended for serving the pur-
pose that the Founding Fathers saw so clearly. In
revealing the workings of government that led to the
Vietnam war, the newspapers nobly did precisely that
which the Founders hoped and trusted they would do.
The Government's case here is based on premises en-
tirely different from those that guided the Framers of
the First Amendment. The Solicitor General has care-
fully and emphatically stated:
"Now, Mr. Justice [BLACK], your construction
of . . . [the First Amendment] is well known, and
I certainly respect it. You say that no law means
no law, and that should be obvious. I can only
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3 Tr. of Oral Arg. 76.
4 Brief for the United States 13-14.
5 Compare the views of the Solicitor General with those of James
Madison, the author of the First Amendment. When speaking of
the Bill of Rights in the House of Representatives, Madison said:
"If they [the first ten amendments] are incorporated into the Con-
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718 OCTOBER TERM, 1970
BLACK, J., concurring 403 U. S.
say, Mr. Justice, that to me it is equally obvious
that `no law' does not mean `no law', and I would
seek to persuade the Court that that is true... .
[T]here are other parts of the Constitution that
grant powers and responsibilities to the Executive,
and . . . the First Amendment was not intended to
make it impossible for the Executive to function or
to protect the security of the United States." 3
And the Government argues in its brief that in spite
of the First Amendment, "[t]he authority of the Execu-
tive Department to protect the nation against publica-
tion of information whose disclosure would endanger the
national security stems from two interrelated sources:
the constitutional power of the President over the con-
duct of foreign affairs and his authority as Commander-
in-Chief." 4
In other words, we are asked to hold that despite
the First Amendment's emphatic command, the Execu-
tive Branch, the Congress, and the Judiciary can make
laws enjoining publication of current news and abridg-
ing freedom of the press in the 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.' See concurring opinion of MR. JUSTICE DOUGLAS,
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is equally obvious
law', and I would
t that is true... .
Constitution that
3 to the Executive,
vas not intended to
hive to function or
ited States."
brief that in spite
ority of the Execu-
)n against publica-
wvould endanger the
tterrelated sources:
dent over the con-
ity as Commander-
hold that despite
amand, the Execu-
rudiciary can make
news and abridg-
ie of "national se-
ven attempt to rely
nakes the bold and
that the courts
ke" a law abridging
equity, presidential
ten the representa-
dhered to the com-
fused to make such
. JUSTICE DOUGLAS,
al with those of James
it. When speaking of
itatives, Madison said:
rporated into the Con-
NEW YORK TIMES CO. v. UNITED STATES 719
713 BLACK, J., concurring
post, at 721-722. To find that the President has "inher-
ent power" to halt the publication of news by resort to the
courts would wipe out the First Amendment and destroy
the fundamental liberty and security of the very people
the Government hopes to make "secure." No one can
read the history of the adoption of the First Amendment
without being convinced beyond any doubt that it was
injunctions like those sought here that Madison and his
collaborators intended to outlaw in this Nation for all
time.
The word "security" is a broad, vague generality whose
contours should not be invoked to abrogate the funda-
mental law embodied in the First Amendment. The
guarding of military and diplomatic secrets at the expense
of informed representative government provides no real
security for our Republic. The Framers of the First
Amendment, fully aware of both the need to defend a
new nation and the abuses of the English and Colonial
governments, sought to give this new society strength
and security by providing that freedom of speech, press,
religion, and assembly should not be abridged. This
thought was eloquently expressed in 1937 by Mr. Chief
Justice Hughes--great man and great Chief Justice that
he was-when the Court held a man could not be punished
for attending a meeting run by Communists.
"The greater the importance of safeguarding the
community from incitements to the overthrow of
our institutions by force and violence, the more im-
perative is the need to preserve inviolate the con-
stitutional rights of free speech, free press and free
stitution, independent tribunals of justice will consider themselves
in a peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the
Legislative or Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitu-
tion by the declaration of rights." 1 Annals of Cong. 439.
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720 OCTOBER TERM, 1970
DOUGLAS, J., concurring 403 U. S.
assembly in order to maintain the opportunity for
free political discussion, to the end that government
may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic,
the very foundation of constitutional government." 6
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK
joins, concurring.
While I join the opinion of the Court I believe it
necessary to express my views more fully.
It should be noted at the outset that the First Amend-
ment provides that "Congress shall make no law .. .
abridging the freedom of speech, or of the press." That
leaves, in my view, no room for governmental restraint
on the press."
There is, moreover, no statute barring the publication
by the press of the material which the Times and the Post
seek to use. Title 18 U. S. C. ? 793 (e) provides that
"[w]hoever having unauthorized possession of, access to,
or control over any document, writing ... or information
relating to the national defense which information the
possessor has reason to believe could be used to the
injury of the United States or to the advantage of any
foreign nation, willfully communicates . . . the same to
any person not entitled to receive it . . . [s] hall be fined
6 De Jonge v. Oregon, 299 U. S. 353, 365.
' See Beauharnais v. Illinois, 343 U. S. 250, 267 (dissenting opinion
of MR. JUSTICE BLACK), 284 (my dissenting opinion) ; Roth v. United
States, 354 U. S. 476, 508 (my dissenting opinion which MR. JUSTICE
BLACK joined) ; Yates v. United States, 354 U. S. 298, 339 (separate
opinion of MR. JUSTICE BLACK which I joined) ; New York Times Co.
v. Sullivan, 376 U. S. 254, 293 (concurring opinion of MR. JUSTICE
BLACK which I joined) ; Garrison v. Louisiana, 379 U. S. 64, 80 (my
concurring opinion which MR. JUSTICE BLACK joined).
not more that
years, or both
The Goveri
cates" is broa
There are E
and censorsh:
"publish" is s
"Whoever, in
be communic?
li8hes, or con
forces]."
Section 797
sells, or gives
Section 79E
ever: "commi
makes availal
rial.2 (Empl
Thus it is :
did distinguh
in the variou
The other
press is a rej
"During any
to which the
such a war, t
the existence
prohibit the
tempting to
relating to th
of such char
2 These docui
system of the
crime. But the
as the basis of
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NEW YORK TIMES CO. v. UNITED STATES 721
713 DOUGLAS, J., concurring
not more than $10,000 or imprisoned not more than ten
years, or both."
The Government suggests that the word "communi-
cates" is broad enough to encompass publication.
There are eight sections in the chapter on espionage
and censorship, ?? 792-799. In three of those eight
"publish" is specifically mentioned: ? 794 (b) applies to
"Whoever, in time of war, with intent that the same shall
be communicated to the enemy, collects, records, pub-
lishes, or communicates . . . [the disposition of armed
forces]."
Section 797 applies to whoever "reproduces, publishes,
sells, or gives away" photographs of defense installations.
Section 798 relating to cryptography applies to who-
ever: "communicates, furnishes, transmits, or otherwise
makes available . . . or publishes" the described mate-
rial.' (Emphasis added.)
Thus it is apparent that Congress was capable of and
did distinguish between publishing and communication
in the various sections of the Espionage Act.
The other evidence that ? 793 does not apply to the
press is a rejected version of ? 793. That version read:
"During any national emergency resulting from a war
to which the United States is a party, or from threat of
such a war, the President may, by proclamation, declare
the existence of such emergency and, by proclamation,
prohibit the publishing or communicating of, or the at-
tempting to publish or communicate any information
relating to the national defense which, in his judgment, is
of such character that it is or might be useful to the
2 These documents contain data concerning the communications
system of the United States, the publication of which is made a
crime. But the criminal sanction is not urged by the Unite ?"--?a
as the basis of equity power.
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722 OCTOBER TERM, 1970
DOUGLAS, J., concurring 403 U. S.
enemy." 55 Cong. Rec. 1763. During the debates in
the Senate the First Amendment was specifically cited
and that provision was defeated. 55 Cong. Rec. 2167.
Judge Gurfein's holding in the Times case that this
Act does not apply to this case was therefore pre-
eminently sound. Moreover, the Act of September 23,
1950, in amending 18 U. S. C. ? 793 states in ? 1 (b)
that :
"Nothing in this Act shall be construed to author-
ize, require, or establish military or civilian censor-
ship or in any way to limit or infringe upon freedom
of the press or of speech as guaranteed by the Con-
stitution of the United States and no regulation shall
be promulgated hereunder having that effect." 64
Stat. 987.
Thus Congress has been faithful to the command of the
First Amendment in this area.
So any power that the Government possesses must
come from its "inherent power."
The power to wage war is "the power to wage war suc-
cessfully." See Hirabayashi v. United States, 320 U. S.
81, 93. But the war power stems from a declaration of
war. The Constitution by Art. I, ? 8, gives Congress,
not the President, power "[t]o declare War." No-
where are presidential wars authorized. We need not
decide therefore what leveling effect the war power of
Congress might have.
These disclosures 3 may have a serious impact. But
that is no basis for sanctioning a previous restraint on
3 There are numerous sets of this material in existence and they
apparently are not under any controlled custody. Moreover, the
President has sent a set to the Congress. We start then with a case
where there already is rather wide distribution of the material that
is destined for publicity, not secrecy. I have gone over the material
listed in the in camera brief of the United States. It is all history,
not future events. None of it is more recent than 1968.
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erring 403 U. S.
During the debates in
was specifically cited
55 Cong. Rec. 2167.
Times case that this
se was therefore pre-
Act of September 23,
? 793 states in ? 1 (b)
be construed to author-
tary or civilian censor-
r infringe upon freedom
guaranteed by the Con-
i and no regulation shall
paving that effect." 64
to the command of the
rnment possesses must
power to wage war suc-
7nited States, 320 U. S.
as from a declaration of
. I, ? 8, gives Congress,
lo declare War." No-
thorized. We need not
effect the war power of
a serious impact. But
a previous restraint on
naterial in existence and they
Bled custody. Moreover, the
as. We start then with a case
tribution of the material that
I have gone over the material
nited States. It is all history,
recent than 1968.
NEW YORK TIMES CO. v. UNITED STATES 723
713 DOUGLAS, J., concurring
the press. As stated by Chief Justice Hughes in Near
v. Minnesota, 283 U. S. 697, 719-720:
"While reckless assaults upon public men, and
efforts to bring obloquy upon those who are endeavor-
ing faithfully to discharge official duties, exert a bale-
ful influence and deserve the severest condemnation
in public opinion, it cannot be said that this abuse is
greater, and it is believed to be less, than that which
characterized the period in which our institutions
took shape. Meanwhile, the administration of gov-
ernment has become more complex, the opportunities
for malfeasance and corruption have multiplied,
crime has grown to most serious proportions, and
the danger of its protection by unfaithful officials
and of the impairment of the fundamental security
of life and property by criminal alliances and official
neglect, emphasizes the primary need of a vigilant
and courageous press, especially in great cities. The
fact that the liberty of the press may be abused by
miscreant purveyors of scandal does not make
any the less necessary the immunity of the press
from previous restraint in dealing with official
misconduct."
As we stated only the other day in Organization for a
Better Austin v. Keefe, 402 U. S. 415, 419, "[a]ny prior
restraint on expression comes to this Court with a `heavy
presumption' against its constitutional validity."
The Government says that it has inherent powers to
go into court and obtain an injunction to protect the
national interest, which in this case is alleged to be na-
tional security.
Near v. Minnesota, 283 U. S. 697, repudiated that ex-
pansive doctrine in no uncertain terms.
The dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental sup-
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pression of embarrassing information. It is common
knowledge that the First Amendment was adopted against
the widespread use of the common law of seditious libel
to punish the dissemination of material that is embarrass-
ing to the powers-that-be. See T. Emerson, The System
of Freedom of Expression, c. V (1970) ; Z. Chafee, Free
Speech in the United States, c. XIII (1941). The pres-
ent cases will, I think, go down in history as the most
dramatic illustration of that principle. A debate of
large proportions goes on in the Nation over our posture
in Vietnam. That debate antedated the disclosure of the
contents of the present documents. The latter are highly
relevant to the debate in progress.
Secrecy in government is fundamentally anti-demo-
cratic, perpetuating bureaucratic errors. Open debate
and discussion of public issues are vital to our national
health. On public questions there should be "unin-
hibited, robust, and wide-open" 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 of the Court of Appeals
in the Times case and direct that it affirm the District
Court.
The stays in these cases that have been in effect for
more than a week constitute a flouting of the principles
of the First Amendment as interpreted in Near v.
Minnesota.
MR. JUSTICE BRENNAN, concurring.
I
I write separately in these cases only to emphasize
what should be apparent: that our judgments in the pres-
ent cases may not be taken to indicate the propriety, in
the future, of issuing temporary stays and restraining
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It is common
s adopted against
of seditious libel
;hat is embarrass-
rson, The System
; Z. Chafee, Free
941). The pres-
tory as the most
e. A debate of
over our posture
disclosure of the
latter are highly
itally anti-demo-
,s. Open debate
1 to our national
hould be "unin-
Lte. New York
i9-270.
court of Appeals
Court of Appeals
firm the District
)een in effect for
of the principles
Aed in Near v.
ily to emphasize
nents in the pres-
the propriety, in
and restraining
NEW YORK TIMES CO. v. UNITED STATES 725
713 BRENNAN, J., concurring
orders to block the publication of material sought to be
suppressed by the Government. So far as I can deter-
mine, never before has the United States sought to enjoin
a newspaper from publishing information in its posses-
sion. The relative novelty of the questions presented,
the necessary haste with which decisions were reached,
the magnitude of the interests asserted, and the fact that
all the parties have concentrated their arguments upon
the question whether permanent restraints were proper
may have justified at least some of the restraints hereto-
fore imposed in these cases. Certainly it is difficult to
fault the several courts below for seeking to assure that
the issues here involved were preserved for ultimate re-
view by this Court. But even if it be assumed that some
of the interim restraints were proper in the two cases
before us, that assumption has no bearing upon the pro-
priety of similar judicial action in the future. To begin
with, there has now been ample time for reflection and
judgment; whatever values there may be in the preser-
vation of novel questions for appellate review may not
support any restraints in the future. More important,
the First Amendment stands as an absolute bar to the
imposition of judicial restraints in circumstances of the
kind presented by these cases.
II
The error that has pervaded these cases from the out-
set was the granting of any injunctive relief whatsoever,
interim or otherwise. The entire thrust of the Govern-
ment's claim throughout these cases has been that publi-
cation of the material sought to be 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 the press predicated
upon surmise or conjecture that untoward consequences
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726 OCTOBER TERM, 1970
BRENNAN, J., concurring 403 U. S.
may result.* Our cases, it is true, have indicated that
there is a single, extremely narrow class of cases in which
the First Amendment's ban on prior judicial restraint
may be overridden. Our cases have thus far indicated
that such cases may arise only when the Nation "is at
war," Schenck v. United States, 249 U. S. 47, 52 (1919),
during which times "[n]o one would question but that a
government might prevent actual obstruction to its re-
cruiting service or the publication of the sailing dates of
transports or the number and location of troops." Near
v. Minnesota, 283 U. S. 697, 716 (1931). Even if the
present world situation were assumed to be tantamount
to a time of war, or if the power of presently available
armaments would justify even in peacetime the suppres-
sion of information that would set in motion a nuclear
holocaust, in neither of these actions has the Government
presented or even alleged that publication of items from
or based upon the material at issue would cause the
happening of an event of that nature. "[T]he chief pur-
pose of [the First Amendment's] guaranty [is] to pre-
vent previous restraints upon publication." Near v.
Minnesota, supra, at 713. Thus, only governmental alle-
gation and proof that publication must inevitably, di-
*Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases
regarding temporary restraints of allegedly obscene materials are
not in point. For those cases rest upon the proposition that
"obscenity is not protected by the freedoms of speech and press."
Roth v. United States, 354 U. S. 476, 481 (1957). Here there is no
question but that the material sought to be suppressed is within
the protection of the First Amendment; the only question is
whether, notwithstanding that fact, its publication may be enjoined
for a time because of the presence of an overwhelming national
interest. Similarly, copyright cases have no pertinence here: the
Government is not asserting an interest in the particular form of
words chosen in the documents, but is seeking to suppress the ideas
expressed therein. And the copyright laws, of course, protect only
the form of expression and not the ideas expressed.
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ing 403 U. S.
have indicated that
ass of cases in which
or judicial restraint
e thus far indicated
n the Nation "is at
U. S. 47, 52 (1919),
question but that a
:)struction to its re-
the sailing dates of
-n of troops." Near
1931). Even if the
d to be tantamount
presently available
,cetime the suppres-
.n motion a nuclear
has the Government
ration of items from
to would cause the
"[T]he chief pur-
:aranty [is] to pre-
lication." Near v.
governmental alle
just inevitably, di-
965), and similar cases
obscene materials are
the proposition that
of speech and press."
)57). Here there is no
e suppressed is within
the only question is
ration may be enjoined
overwhelming national
pertinence here: the
the particular form of
g to suppress the ideas
of course, protect only
?ressed.
rectly, and immediately cause the occurrence of an event
kindred to imperiling the safety of a transport already
at sea can support even the issuance of an interim re-
straining order. In no event may mere conclusions be
sufficient: for if the Executive Branch seeks judicial aid
in preventing publication, it must inevitably submit the
basis upon which that aid is sought to scrutiny by the
judiciary. And therefore, every restraint issued in this
case, whatever its form, has violated the First Amend-
ment-and not less so because that restraint was jus-
tified as necessary to afford the courts an opportunity
to examine the claim more thoroughly. Unless and until
the Government has clearly made out its case, the First
Amendment commands that no injunction may issue.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE
joins, concurring.
In the governmental structure created by our Consti-
tution, the Executive is endowed with enormous power
in the two related areas of national defense and inter-
national. relations. This power, largely unchecked by the
Legislative 1 and Judicial 2 branches, has been pressed
to the very hilt since the advent of the nuclear missile
age. For better or for worse, the simple fact is that a
1 The President's power to make treaties and to appoint am-
bassadors is, of course, limited by the requirement of Art. II, ? 2,
of the Constitution that he obtain the advice and consent of the
Senate. Article I, ? 8, empowers Congress to "raise and support
Armies," and "provide and maintain a Navy." And, of course,
Congress alone can declare war. This power was last exercised almost
30 years ago at the inception of World War II. Since the end of that
war in 1945, the Armed Forces of the United States have suffered
approximately half a million casualties in various parts of the world.
2 See Chicago & Southern Air Lines v. Waterman S. S. Corp.,
333 U. S. 103; Hirabayashi v. United States, 320 U. S. 81; United
States v. Curtiss-Wright Corp., 299 U. S. 304; cf. Mora v.
McNamara, 128 U. S. App. D. C. 297, 387 F. 2d 862, cert. denied,
389 U. S. 934.
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728 OCTOBER TERM, 1970
STEWART, J., concurring 403 U. S.
President of the United States possesses vastly greater
constitutional independence in these two vital areas of
power than does, say, a prime minister of a country with
a parliamentary form of government.
In the absence of the governmental checks and bal-
ances present in other areas of our national life, the only
effective restraint upon executive policy and power in
the areas of national defense and international affairs
may lie in an enlightened citizenry-in an informed and
critical public opinion which alone can here protect the
values of democratic government. For this reason, it is
perhaps here that a press that is alert, aware, and free
most vitally serves the basic purpose of the First Amend-
ment. For without an informed and free press there
cannot be an enlightened people.
Yet it is elementary that the successful conduct of
international diplomacy and the maintenance of an ef-
fective national defense require both confidentiality and
secrecy. Other nations can hardly deal with this Nation
in an atmosphere of mutual trust unless they can be
assured that their confidences will be kept. And within
our own executive departments, the development of con-
sidered and intelligent international policies would be im-
possible if those charged with their formulation could not
communicate with each other freely, frankly, and in con-
fidence. In the area of basic national defense the fre-
quent need for absolute secrecy is, of course, self-evident.
I think there can be but one answer to this dilemma,
if dilemma it be. The responsibility must be where
the power is.3 If the Constitution gives the Executive
3 "It is quite apparent that if, in the maintenance of our inter-
national relations, embarrassment-perhaps serious embarrassment-
is to be avoided and success for our aims achieved, congressional legis-
lation which is to be made effective through negotiation and inquiry
within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which
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uses vastly greater
two vital areas of
of a country with
I checks and bal-
.onal life, the only
icy and power in
ternational affairs
i an informed and
i here protect the
r this reason, it is
t, aware, and free
the First Amend-
free press there
essful conduct of
tenance of an ef-
onfidentiality and
l with this Nation
iless they can be
:ept. And within
,ielopment of con-
licies would be im-
iulation could not
tnkly, and in con-
. defense the fre-
urse, self-evident.
to this dilemma,
must be where
'es the Executive
enance of our inter-
:us embarrassment-
d, congressional legis-
;otiation and inquiry
d to the President a
)ry restriction which
a large degree of unshared power in the conduct of
foreign affairs and the maintenance of our national de-
fense, then under the Constitution the Executive must
have the largely unshared duty to determine and pre-
serve the degree of internal security necessary to exer-
cise that power successfully. It is an awesome responsi-
bility, requiring judgment and wisdom of a high order.
I should suppose that moral, political, and practical con-
siderations would dictate that a very first principle of
that wisdom would be an insistence upon avoiding
secrecy for its own sake. For when everything is classi-
fied, then nothing is classified, and the system becomes one
to be disregarded by the cynical or the careless, and to be
manipulated by those intent on self-protection or self-
promotion. I should suppose, in short, that the hall-
mark of a truly effective internal security system would
be the maximum possible disclosure, recognizing that
secrecy can best be preserved only when credibility is
truly maintained. But be that as it may, it is clear to
me that it is the constitutional duty of the Executive-
as a matter of sovereign prerogative and not as a matter
of law as the courts know law-through the promulga-
tion and enforcement of executive regulations, to protect
would not be admissible were domestic affairs alone involved. More-
over, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this
true in time of war. He has his confidential sources of information.
He has his agents in the form of diplomatic, consular and other
officials. Secrecy in respect of information gathered by them may
be highly necessary, and the premature disclosure of it productive of
harmful results. Indeed, so clearly is this true that the first Pres-
ident refused to accede to a request to lay before the House of Rep-
resentatives the instructions, correspondence and documents relating
to the negotiation of the Jay Treaty-a refusal the wisdom of which
was recognized by the House itself and has never since been
doubted...." United States v. Curtiss-Wright Corp., 299 U. S.
304, 320.
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730 OCTOBER TERM, 1970
WHITE, J., concurring 403 U. S.
the confidentiality necessary to carry out its responsibili-
ties in the fields of international relations and national
defense.
This is not to say that Congress and the courts have
no role to play. Undoubtedly Congress has the power to
enact specific and appropriate criminal laws to protect
government property and preserve government secrets.
Congress has passed such laws, and several of them are
of very colorable relevance to the apparent circum-
stances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to
decide the applicability of the criminal law under which
the charge is brought. Moreover, if Congress should
pass a specific law authorizing civil proceedings in this
field, the courts would likewise have the duty to decide
the constitutionality of such a law as well as its appli-
cability to the facts proved.
But in the cases before us we are asked neither to con-
strue specific regulations nor to apply specific 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 that the Executive Branch
insists should not, in the national interest, be 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.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART
joins, concurring.
I concur in today's judgments, but only because of the
concededly extraordinary protection against prior re-
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NEW YORK TIMES CO. v. UNITED STATES 731
t its responsibili-
)ns and national
the courts have
has the power to
laws to protect
ernment secrets.
era) of them are
pparent circum-
al prosecution is
of the courts to
law under which
Congress should
)ceedings in this
e duty to decide
?yell as its appli-
d neither to con-
)ecific laws. We
-n that the Con-
Judiciary. We
e publication by
executive Branch
.st, be published.
correct with re-
'ed. But I can-
will surely result
damage to our
there can under
;ial resolution of
nts of the Court.
ly because of the
tgainst prior re-
713 WHrrs, J., concurring
straints enjoyed by the press under our constitutional
system. I do not say that in no circumstances would
the First Amendment permit an injunction against pub-
lishing information about government plans or opera-
tions.) Nor, after examining the materials the Govern-
ment characterizes as the most sensitive and destructive,
can I deny that revelation of these documents will do
substantial damage to public interests. Indeed, I am
confident that their disclosure will have that result. But
I nevertheless agree that the United States has not satis-
fied the very heavy burden that it must meet to warrant
an injunction against publication in these cases, at least
in the absence of express and appropriately limited con-
gressional authorization for prior restraints in circum-
stances such as these.
1 The Congress has authorized a strain of prior restraints against
private parties in certain instances. The National Labor Relations
Board routinely issues cease-and-desist orders against employers
who it finds have threatened or coerced employees in the exercise
of protected rights. See 29 U. S. C. ? 160 (c). Similarly, the
Federal Trade Commission is empowered to impose cease-and-desist
orders against unfair methods of competition. 15 U. S. C. ? 45 (b).
Such orders can, and quite often do, restrict what may be spoken
or written under certain circumstances. See, e. g., NLRB v.
Gissel Packing Co., 395 U. S. 575, 616-620 (1969). Article I, ? 8, of
the Constitution authorizes Congress to secure the "exclusive right"
of authors to their writings, and no one denies that a newspaper
can properly be enjoined from publishing the copyrighted works
of another. See Westermann Co. v. Dispatch Co., 249 U. S. 100
(1919). Newspapers do themselves rely from time to time on the
copyright as a means of protecting their accounts of important
events. However, those enjoined under the statutes relating to
the National Labor Relations Board and the Federal Trade Com-
mission are private parties, not the press; and when the press
is enjoined under the copyright laws the complainant is a private
copyright holder enforcing a private right. These situations are
quite distinct from the Government's request for an injunction
against publishing information about the affairs of government, a
request admittedly not based on any statute.
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WHITE, J., concurring 403 U. S.
The Government's position is simply stated : The re-
sponsibility of the Executive for the conduct of the foreign
affairs and for the security of the Nation is so basic that
the President is entitled to an injunction against publi-
cation of a newspaper story whenever he can convince a
court that the information to be revealed threatens "grave
and irreparable" injury to the public interest; 2 and the
injunction should issue whether or not the material to
be published is classified, whether or not publication
would be lawful under relevant criminal statutes enacted
by Congress, and regardless of the circumstances by which
the newspaper came into possession of the information.
At least in the absence of legislation by Congress, based
on its own investigations and findings, I am quite unable
to agree that the inherent powers of the Executive and
the courts reach so far as to authorize remedies having
such sweeping potential for inhibiting publications by the
press. Much of the difficulty inheres in the "grave and
irreparable danger" standard suggested by the United
States. If the United States were to have judgment
under such a standard in these cases, our decision would
be of little guidance to other courts in other cases, for
the material at issue here would not be available from
the Court's opinion or from public records, nor would it
be published by the press. Indeed, even today where
we hold that the United States has not met its burden,
the material remains sealed in court records and it is
2 The "grave and irreparable danger" standard is that asserted by
the Government in this Court. In remanding to Judge Gurfein for
further hearings in the Times litigation, five members of the Court
of Appeals for the Second Circuit directed him to determine whether
disclosure of certain items specified with particularity by the Gov-
ernment would "pose such grave and immediate danger to the
security of the United States as to warrant their publication being
enjoined."
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stated : The re-
luct of the foreign
n is so basic that
:)n against publi-
Le can convince a
threatens "grave
iterest; ' and the
the material to
not publication
statutes enacted
stances by which
the information.
Congress, based
am quite unable
e Executive and
remedies having
blications by the
the "grave and
by the United
have judgment
r decision would
other cases, for
available from
ds, nor would it
en today where
met its burden,
!cords and it is
is that asserted by
Judge Gurfein for
zbers of the Court
determine whether
arity by the Gov-
le danger to the
publication being
NEW YORK TIMES CO. v. UNITED STATES 733
713 WHITE, J., concurring
properly not discussed in today's opinions. Moreover,
because the material poses substantial dangers to national
interests and because of the hazards of criminal sanctions,
a responsible press may choose never to publish the more
sensitive materials. To sustain the Government in these
cases would start the courts down a long and hazardous
road that I am not willing to travel, at least without
congressional guidance and direction.
It is not easy to reject the proposition urged by the
United States and to deny relief on its good-faith claims
in these cases that publication will work serious damage
to the country. But that discomfiture is considerably
dispelled by the infrequency of prior-restraint cases.
Normally, publication will occur and the damage be
done before the Government has either opportunity or
grounds for suppression. So here, publication has al-
ready begun and a substantial part of the threatened
damage has already occurred. The fact of a massive
breakdown in security is known, access to the documents
by many unauthorized people is undeniable, and the
efficacy of equitable relief against these or other news-
papers to avert anticipated damage is doubtful at best.
What is more, terminating the ban on publication of
the relatively few sensitive documents the Govern-
ment now seeks to suppress does not mean that the law
either requires or invites newspapers or others to publish
them or that they will be immune from criminal action
if they do. Prior restraints require an unusually heavy
justification under the First Amendment; but failure by
the Government to justify prior restraints does not meas-
ure its constitutional entitlement to a conviction for
criminal publication. That the Government mistakenly
chose to proceed by injunction does not mean that it
could not successfully proceed in another way.
When the Espionage Act was under consideration in
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734 OCTOBER TERM, 1970
WHITE, J., concurring 403 U. S.
1917, Congress eliminated from the bill a provision that
would have given the President broad powers in time
of war to proscribe, under threat of criminal penalty, the
publication of various categories of information related
to the national defense.' Congress at that time was un-
willing to clothe the President with such far-reaching
powers to monitor the press, and those opposed to this
part of the legislation assumed that a necessary con-
comitant of such power was the power to "filter out the
news to the people through some man." 55 Cong. Rec.
2008 (remarks of Sen. Ashurst). However, these same
members of Congress appeared to have little doubt that
newspapers would be subject to criminal prosecution
if they insisted on publishing information of the type
Congress had itself determined should not be revealed.
Senator Ashurst, for example, was quite sure that the
editor of such a newspaper "should be punished if he
did publish information as to the movements of the
fleet, the troops, the aircraft, the location of powder
factories, the location of defense works, and all that sort
of thing." Id., at 2009.'
3 "Whoever, in time of war, in violation of reasonable regulations
to be prescribed by the President, which he is hereby authorized
to make and promulgate, shall publish any information with respect
to the movement, numbers, description, condition, or disposition of
any of the armed forces, ships, aircraft, or war materials of the
United States, or with respect to the plans or conduct of any naval
or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification
or defense of any place, or any other information relating to the
public defense calculated to be useful to the enemy, shall be punished
by a fine . . . or by imprisonment . . . ." 55 Cong. Rec. 2100.
' Senator Ashurst also urged that " `freedom of the press' means
freedom from the restraints of a censor, means the absolute liberty
and right to publish whatever you wish; but you take your
chances of punishment in the courts of your country for the violation
of the laws of libel, slander, and treason." 55 Cong. Rec. 2005.
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11 a provision that
d powers in time
minal penalty, the
iformation related
that time was un-
such far-reaching
;e opposed to this
a necessary con-
to "filter out the
55 Cong. Rec.
,vever, these same
little doubt that
ninal prosecution
ation of the type
l not be revealed.
cite sure that the
)e punished if he
iovements of the
cation of powder
;, and all that sort
reasonable regulations
is hereby authorized
3rmation with respect
:ion, or disposition of
war materials of the
conduct of any naval
y works or measures
I for the fortification
cation relating to the
.my, shall be punished
i Cong. Rec. 2100.
i of the press' means
s the absolute liberty
but you take your
entry for the violation
i Cong. Rec. 2005.
The Criminal Code contains numerous provisions po-
tentially relevant to these cases. Section 7971 makes it
a crime to publish certain photographs or drawings of
military installations. Section 798,8 also in precise lan-
guage, proscribes knowing and willful publication of any
classified information concerning the cryptographic sys-
S Title 18 U. S. C. ? 797 provides:
"On and after thirty days from the date upon which the President
defines any vital military or naval installation or equipment as
being within the category contemplated under section 795 of this
title, whoever reproduces, publishes, sells, or gives away any photo-
graph, sketch, picture, drawing, map, or graphical representation
of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer of the
military or naval post, camp, or station concerned, or higher author-
ity, unless such photograph, sketch, picture, drawing, map, or
graphical representation has clearly indicated thereon that it has
been censored by the proper military or naval authority, shall be
fined not more than $1,000 or imprisoned not more than one year,
or both."
6 In relevant part 18 U. S. C. ? 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes,
transmits, or otherwise makes available to an unauthorized person,
or publishes, or uses in any manner prejudicial to the safety or inter-
est of the United States or for the benefit of any foreign government
to the detriment of the United States any classified information-
"(1) concerning the nature, preparation, or use of any code,
cipher, or cryptographic system of the United States or any foreign
government; or
"(2) concerning the design, construction, use, maintenance, or
repair of any device, apparatus, or appliance used or prepared or
planned for use by the United States or any foreign government
for cryptographic or communication intelligence purposes; or
"(3) concerning the communication intelligence activities of the
United States or any foreign government; or
"(4) obtained by the process of communication intelligence from
the communications of any foreign government, knowing the same
to have been obtained by such processes-
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both."
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WHITE, J., concurring 403 U. S.
tems or communication intelligence activities of the
United States as well as any information obtained from
communication intelligence operations.' If any of the
material here at issue is of this nature, the newspapers
are presumably now on full notice of the position of the
United States and must face the consequences if they
' The purport of 18 U. S. C. ? 798 is clear. Both the House and
Senate Reports on the bill, in identical terms, speak of furthering
the security of the United States by preventing disclosure of in-
formation concerning the cryptographic systems and the communi-
cation intelligence systems of the United States, and explaining that
"[t]his bill makes it a crime to reveal the methods, techniques, and
materiel used in the transmission by this Nation of enciphered or
coded messages. . . . Further, it makes it a crime to reveal methods
used by this Nation in breaking the secret codes of a foreign nation.
It also prohibits under certain penalties the divulging of any infor-
mation which may have come into this Government's hands as a
result of such a code-breaking." H. R. Rep. No. 1895, 81st Cong.,
2d Sess., 1 (1950). The narrow reach of the statute was explained
as covering "only a small category of classified matter, a category
which is both vital and vulnerable to an almost unique degree."
Id., at 2. Existing legislation was deemed inadequate.
"At present two other acts protect this information, but only in
a limited way. These are the Espionage Act of 1917 (40 Stat. 217)
and the act of June 10, 1933 (48 Stat. 122). Under the first,
unauthorized revelation of information of this kind can be penalized
only if it can be proved that the person making the revelation did
so with an intent to injure the United States. Under the second,
only diplomatic codes and messages transmitted in diplomatic codes
are protected. The present bill is designed to protect against
knowing and willful publication or any other revelation of all
important information affecting the United States communication
intelligence operations and all direct information about all United
States codes and ciphers." Ibid.
Section 798 obviously was intended to cover publications by non-
employees of the Government and to ease the Government's burden
in obtaining convictions. See H. R. Rep. No. 1895, supra, at
2-5. The identical Senate Report, not cited in parallel in the text
of this footnote, is S. Rep. No. 111, 81st Cong., 1st Sess. (1949).
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.JM, 1970
acurring 403 U. S.
.ligence activities of the
nformation obtained from
)erations.7 If any of the
is nature, the newspapers
-tice of the position of the
the consequences if they
is clear. Both the House and
;ical terms, speak of furthering
:)y preventing disclosure of in-
Dhic systems and the communi-
iited States, and explaining that
gal the methods, techniques, and
,y this Nation of enciphered or
ekes it a crime to reveal methods
secret codes of a foreign nation.
tlties the divulging of any infor-
, this Government's hands as a
[. R. Rep. No. 1895, 81st Cong.,
ach of the statute was explained
of classified matter, a category
e to an almost unique degree."
deemed inadequate.
ect this information, but only in
onage Act of 1917 (40 Stat. 217)
18 Stat. 122). Under the first,
;ion of this kind can be penalized
person making the revelation did
nited States. Under the second,
s transmitted in diplomatic codes
is designed to protect against
or any other revelation of all
he United States communication
ect information about all United
ed to cover publications by non-
to ease the Government's burden
[. R. Rep. No. 1895, supra, at
t, not cited in parallel in the text
11, 81st Cong., 1st Sass. (1949).
NEW YORK TIMES CO. v. UNITED STATES 737
713 WHrria, J., concurring
publish. I would have no difficulty in Sustaining con-
victions under these sections on facts that would not
justify the intervention of equity and the imposition of
a prior restraint.
The same would be true under those sections of the
Criminal Code casting a wider net to protect the national
defense. Section 793 (e) ? makes it a criminal act for
any unauthorized possessor of a document "relating to
the national defense" either (1) willfully to communicate
or cause to be communicated that document to any per-
son not entitled to receive it or (2) willfully to retain
the document and fail to deliver it to an officer of the
United States entitled to receive it. The subsection was
added in 1950 because pre-existing law provided no
Section 793 (e) of 18 U. S. C. provides that:
of, access to, or
"(e) Whoever having unauthorized possession
control over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, trans-
mit or cause to be communicated, delivered, or transmitted the same
to any person not entitled to receive it, or willfully retains the same
and fails to deliver it to the officer or employee of the United
States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000
fine, or both. It should also be noted that 18 U. S. C. ? 793 (g),
added in 1950 (see 64 Stat. 1004; S. Rep. No. 2369, pt. 1, 81st
Cong., 2d Sess., 9 (1950)), provides that "[i]f two or more persons
conspire to violate any of the foregoing provisions of this section,
and one or more of such persons do any act to effect the object
of the conspiracy, each of the parties to such conspiracy shall
be subject to the punishment provided for the offense which is
the object of such conspiracy."
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WHITE, J., concurring 403 U. S.
penalty for the unauthorized possessor unless demand
for the documents was made.' "The dangers surround-
ing the unauthorized possession of such items are self-
9 The amendment of ? 793 that added subsection (e) was part of
the Subversive Activities Control Act of 1950, which was in turn
Title I of the Internal Security Act of 1950. See 64 Stat. 987.
The report of the Senate Judiciary Committee best explains the
purposes of the amendment:
"Section 18 of the bill amends section 793 of title 18 of the
United States Code (espionage statute). The several paragraphs
of section 793 of title 18 are designated as subsections (a) through
(g) for purposes of convenient reference. The significant changes
which would be made in section 793 of title 18 are as follows:
"(1) Amends the fourth paragraph of section 793, title 18 (subsec.
(d) ), to cover the unlawful dissemination of `information relating
to the national defense which information the possessor has reason
to believe could be used to the injury of the United States or to
the advantage of any foreign nation.' The phrase `which informa-
tion the possessor has reason to believe could be used to the injury
of the United States or to the advantage of any foreign nation'
would modify only `information relating to the national defense'
and not the other items enumerated in the subsection. The fourth
paragraph of section 793 is also amended to provide that only those
with lawful possession of the items relating to national defense
enumerated therein may retain them subject to demand therefor.
Those who have unauthorized possession of such items are treated
in a separate subsection.
"(2) Amends section 793, title 18 (subsec. (e)), to provide that
unauthorized possessors of items enumerated in paragraph 4 of
section 793 must surrender possession thereof to the proper author-
ities without demand. Existing law provides no penalty for the
unauthorized possession of such items unless a demand for them
is made by the person entitled to receive them. The dangers
surrounding the unauthorized possession of such items are self-
evident, and it is deemed advisable to require their surrender in
such a case, regardless of demand, especially since their unauthorized
possession may be unknown to the authorities who would otherwise
make the demand. The only difference between subsection (d) and
subsection (e) of section 793 is that a demand by the person entitled
to receive the items would be a necessary element of an offense
under subsection (d) where the possession is lawful, whereas such
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NEW YORK TIMES CO. v. UNITED STATES 739
it unless demand
dangers surround-
;h items are self-
lion (e) was part of
1, which was in turn
1. See 64 Stat. 987.
ee best explains the
3 of title 18 of the
several paragraphs
)sections (a) through
to significant changes
are as follows:
793, title 18 (subset.
`information relating
possessor has reason
United States or to
rase `which informa-
be used to the injury
any foreign nation'
the national defense'
beection. The fourth
-ovide that only those
to national defense
to demand therefor.
ich items are treated
(e) ), to provide that
. in paragraph 4 of
to the proper author-
: no penalty for the
a demand for them
them. The dangers
such items are self-
re their surrender in
ice their unauthorized
who would otherwise
en subsection (d) and
by the person entitled
iement of an offense
lawful, whereas such
713 Wrrrrn, J., concurring
evident, and it is deemed advisable to require their sur-
render in such a case, regardless of demand, especially
since their unauthorized possession may be unknown to
the authorities who would otherwise make the demand."
S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950).
Of course, in the cases before us, the unpublished docu-
ments have been demanded by the United States and
their import has been made known at least to counsel for
the newspapers involved. In Gorin v. United States,
312 U. S. 19, 28 (1941), the words "national defense"
as used in a predecessor of ? 793 were held by a unani-
mous Court to have "a well understood connotation"-
a "generic concept of broad connotations, referring to
the military and naval establishments and the related
activities of national preparedness"-and to be "suffi-
ciently definite to apprise the public of prohibited activi-
a demand would not be a necessary element of an offense under sub-
section (e) where the possession is unauthorized." S. Rep. No.
2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations
of the District Court for the Southern District of New York in
this case, that in prosecuting for communicating or withholding a
"document" as contrasted with similar action with respect to "infor-
mation" the Government need not prove an intent to injure the
United States or to benefit a foreign nation but only willful and
knowing conduct. The District Court relied on Gorin v. United
States, 312 U. S. 19 (1941). But that case arose under other
parts of the predecessor to ? 793, see 312 U. S., at 21-22-parts
that imposed different intent standards not repeated in ? 793 (d)
or ? 793 (e). Cf. 18 U. S. C. ?? 793 (a), (b), and (c). Also,
from the face of subsection (e) and from the context of the Act of
which it was a part, it seems undeniable that a newspaper, as well
as others unconnected with the Government, are vulnerable to
prosecution under ? 793 (e) if they communicate or withhold the
materials covered by that section. The District Court ruled that
`.communication" did not reach publication by a newspaper of
documents relating to the national defense. I intimate no views
on the correctness of that conclusion. But neither communication
nor publication is necessary to violate the subsection.
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740 OCTOBER TERM, 1970
MARSHALL, J., concurring 403 U. S.
ties" and to be consonant with due process. 312 U. S.,
at 28. Also, as construed by the Court in Gorin, infor-
mation "connected with the national defense" i obvi-
ously not limited to that threatening "grave and
arable" injury to the United States.10
It is thus clear that Congress has addressed itself to
the problems of protecting the security of the country
and the national defense from unauthorized disclosure
of potentially damaging information. Cf. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585-586
(1952); see also id., at 593-628 (Frankfurter, J., con-
curring). It has not, however, authorized the injunc-
tive remedy against threatened publication. It has ap-
parently been satisfied to rely on criminal sanctions and
their deterrent effect on the responsible as well as the
irresponsible press. I am not, of course, saying that
either of these newspapers has yet committed a crime
or that either would commit a crime if it published
all the material now in its possession. That matter
must await resolution in the context of a criminal pro-
ceeding if one is instituted by the United States. In
that event, the issue of guilt or innocence would be
determined by procedures and standards quite different
from those that have purported to govern these injunc-
tive proceedings.
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these
cases is whether in a suit by the United States, "the
First Amendment bars a court from prohibiting a news-
10 Also relevant is 18 U. S. C. ? 794. Subsection (b) thereof
forbids in time of war the collection or publication, with intent
that it shall be communicated to the enemy, of any information with
respect to the movements of military forces, "or with respect to
the plans or conduct . of any naval or military operations . .
or any other information relating to the public defense, which might
be useful to the enemy ...."
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NEW YORK TIMES CO. v. UNITED STATES 741
)cess. 312 U. S.,
t in Gorin, infor-
lefense" is obvi-
`grave and irrep-
ddressed itself to
y of the country
iorized disclosure
Cf. Youngstown
S. 579, 585-586
akfurter, J., con-
rized the injunc-
tion. It has ap-
pal sanctions and
le as well as the
.use, saying that
mmitted a crime
e if it published
-n. That matter
)f a criminal pro-
nited States. In
ocence would be
ds quite different
'ern these injunc-
)nly issue in these
cited States, "the
?ohibiting a news-
bsection (b) thereof
)lication, with intent
any information with
"or with respect to
litary operations ...
defense, which might
713 MARSHALL, J., concurring
paper from publishing material whose disclosure would
pose a `grave and immediate danger to the security of
the United States.'" Brief for the United States 7.
With all due respect, I believe the ultimate issue in these
cases is even more basic than the one posed by the Solici-
tor General. The issue is whether this Court or the
Congress has the power to make law.
In these cases there is no problem concerning the Presi-
dent's power to classify information as "secret" or "top
secret." Congress has specifically recognized Presiden-
tial authority, which has been formally exercised in
Exec. Order 10501 (1953), to classify documents and
information. See, e. g., 18 U. S. C. ? 798; 50 U. S. C.
? 783.1 Nor is there any issue here regarding the Pres-
ident's power as Chief Executive and Commander in
Chief to protect national security by disciplining em-
ployees who disclose information and by taking pre-
cautions to prevent leaks.
The problem here is whether in these particular cases
the Executive Branch has authority to invoke the equity
jurisdiction of the courts to protect what it believes to
be the national interest. See In re Debs, 158 U. S. 564,
584 (1895). The Government argues that in addition to
the inherent power of any government to protect itself,
the President's power to conduct foreign affairs and his
position as Commander in Chief give him authority to
impose censorship on the press to protect his ability
to deal effectively with foreign nations and to con-
duct the military affairs of the country. Of course,
it is beyond cavil that the President has broad powers
by virtue of his primary responsibility for the conduct of
our foreign affairs and his position as Commander in
Chief. Chicago & Southern Air Lines v. Waterman
S. S. Corp., 333 U. S. 103 (1948) ; Hirabayashi v. United
States, 320 U. S. 81, 93 (1943) ; United States v. Curtiss-
1 See n. 3, infra.
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MARSHALL, J., concurring 403 U. S.
Wright Corp., 299 U. S. 304 (1936).2 And in some
situations it may be that under whatever inherent
powers the Government may have, as well as the implicit
authority derived from the President's mandate to con-
duct foreign affairs and to act as Commander in Chief,
there is a basis for the invocation of the equity jurisdic-
tion of this Court as an aid to prevent the publication of
material damaging to "national security," however that
term may be defined.
It would, however, be utterly inconsistent with the con-
cept of separation of powers for this Court to use its
power of contempt to prevent behavior that Congress has
specifically declined to prohibit. There would be a simi-
lar damage to the basic concept of these co-equal branches
of Government if when the Executive Branch has ade-
quate authority granted by Congress to protect "national
security" it can choose instead to invoke the contempt
power of a court to enjoin the threatened conduct. The
Constitution provides that Congress shall make laws,
the President execute laws, and courts interpret laws.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952). It did not provide for government by injunc-
tion in which the courts and the Executive Branch can
"make law" without regard to the action of Congress.
It may be more convenient for the Executive Branch if
it need only convince a judge to prohibit conduct rather
than ask the Congress to pass a law, and it may be more
convenient to enforce a contempt order than to seek a
criminal conviction in a jury trial. Moreover, it may be
considered politically wise to get a court to share the
responsibility for arresting those who the Executive
Branch has probable cause to believe are violating the
law. But convenience and political considerations of the
2 But see Kent v. Dulles, 357 U. S. 116 (1958) ; Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579 (1952).
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NEW YORK TIMES CO. v. UNITED STATES 743
And in some
.atever inherent
+11 as the implicit
mandate to con-
nander in Chief,
equity jurisdic-
he publication of
1," however that
ent with the con-
Court to use its
hat Congress has
would be a simi-
;o-equal branches
Branch has ade-
protect "national
ike the contempt
3d conduct. The
Shall make laws,
.a interpret laws.
ter, 343 U. S. 579
iment by injunc-
utive Branch can
Lion of Congress.
ecutive Branch if
)it conduct rather
;d it may be more
-r than to seek a
)reover, it may be
)urt to share the
o the Executive
are violating the
isiderations of the
713 MARSHALL, J., concurring
moment do not justify a basic departure from the princi-
ples of our system of government.
In these cases we are not faced with a situation where
Congress has failed to provide the Executive with broad
power to protect the Nation from disclosure of damaging
state secrets. Congress has on several occasions given
extensive consideration to the problem of protecting the
military and strategic secrets of the United States. This
consideration has resulted in the enactment of statutes
making it a crime to receive, disclose, communicate,
withhold, and publish certain documents, photographs,
instruments, appliances, and information. The bulk of
these statutes is found in chapter 37 of U. S. C., Title 18,
entitled Espionage and Censorship.' In that chapter,
8 There are several other statutory provisions prohibiting and pun-
ishing the dissemination of information, the disclosure of which Con-
gress thought sufficiently imperiled national security to warrant that
result. These include 42 U. S. C. ?? 2161 through 2166 relating to the
authority of the Atomic Energy Commission to classify and declassify
"Restricted Data" ["Restricted Data" is a term of art employed
uniquely by the Atomic Energy Act]. Specifically, 42 U. S. C.
? 2162 authorizes the Atomic Energy Commission to classify certain
information. Title 42 U. S. C. ? 2274, subsection (a), provides
penalties for a person who "communicates, transmits, or discloses
[restricted data] ... with intent to injure the United States or
with intent to secure an advantage to any foreign nation ...."
Subsection (b) of ? 2274 provides lesser penalties for one who "com-
municates, transmits, or discloses" such information "with reason to
believe such data will be utilized to injure the United States or to
secure an advantage to any foreign nation . . . ." Other sections of
Title 42 of the United States Code dealing with atomic energy pro-
hibit and punish acquisition, removal, concealment, tampering with,
alteration, mutilation, or destruction of documents incorporating "Re-
stricted Data" and provide penalties for employees and former em-
ployees of the Atomic Energy Commission, the armed services, con-
tractors and licensees of the Atomic Energy Commission. Title 42
U. S. C. ?? 2276, 2277. Title 50 U. S. C. App. ? 781, 56 Stat. 390,
prohibits the making of any sketch or other representation of military
installations or any military equipment located on any military instal-
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MARSHALL, J., concurring 403 U. S.
Congress has provided penalties ranging from a $10,000
fine to death for violating the various statutes.
Thus it would seem that in order for this Court to
issue an injunction it would require a showing that such
an injunction would enhance the already existing power
of the Government to act. See Bennett v. Laman, 277
N. Y. 368, 14 N. E. 2d 439 (1938). It is a traditional
axiom of equity that a court of equity will not do a 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 935-954 (5th 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 is probable cause to believe
a crime has been committed or whether there is a con-
spiracy to commit future crimes.
If the Government had attefnpted to show that there
was no effective remedy under traditional criminal law,
it would have had to show that there is no arguably
applicable statute. Of course, at this stage this Court
could not and cannot determine whether there has been a
violation of a particular statute or decide the constitu-
tionality of any statute. Whether a good-faith prosecu-
tion could have been instituted under any statute could,
however, be determined.
lation, as specified; and indeed Congress in the National Defense Act
of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction
on federal district courts over civil actions "to enjoin any violation"
thereof. 50 U. S. C. App. ? 1152 (6). Title 50 U. S. C. ? 783 (b)
,makes it unlawful for any officers or employees of the United States
or any corporation which is owned by the United States to communi-
cate material which has been "classified" by the President to any
person who that governmental employee knows or has reason to be-
lieve is an agent or representative of any foreign government or any
Communist organization.
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ag from a $10,000
statutes.
for this Court to
Showing that such
dy existing power
ett v. Laman, 277
It is a traditional
will not do a use-
m that equity will
See Z. Chafee &
1 H. Joyce, In-
iere has been no
he Solicitor Gen-
whether the Gov-
le cause to believe
er there is a con-
o show that there
)nal criminal law,
-e is no arguably
stage this Court
!r there has been a
cide the constitu-
)od-faith prosecu-
any statute could,
National Defense Act
conferred jurisdiction
enjoin any violation"
5) U. S. C.?783(b)
of the United States
d States to communi-
the President to any
or has reason to be-
n government or any
713 MARSHALL, J., concurring
At least one of the many statutes in this area seems rel-
evant to these cases. Congress has provided in 18 U. S. C.
? 793 (e) that whoever "having unauthorized possession
of, access to, or control over any document, writing, code
book, signal book . . . or note relating to the national
defense, or information relating to the national defense
which information the possessor has reason to believe
could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates,
delivers, transmits ... the same to any person not entitled
to receive it, or willfully retains the same and fails to de-
liver it to the officer or employee of the United States
entitled to receive it ... [s]hall be fined not more than
$10,000 or imprisoned not more than ten years, or both."
Congress has also made it a crime to conspire to com-
mit any of the offenses listed in 18 U. S. C. ? 793 (e).
It is true that Judge Gurfein found that Congress had
not made it a crime to publish the items and material
specified in ? 793 (e). He found that the words "com-
municates, delivers, transmits . . ." did not refer to pub-
lication of newspaper stories. And that view has some
support in the legislative history and conforms with the
past practice of using the statute only to prosecute those
charged with ordinary espionage. But see 103 Cong.
Rec. 10449 (remarks of Sen. Humphrey). Judge Gur-
fein's view of the statute is not, however, the only
plausible construction that could be given. See my
Brother WHITE'S concurring opinion.
Even if it is determined that the Government could
not in good faith bring criminal prosecutions against
the New York Times and the Washington Post, it is
clear that Congress has specifically rejected passing legis-
lation that would have clearly given the President the
power he seeks here and made the current activity of the
newspapers unlawful. When Congress specifically de-
clines to make conduct unlawful it is not for this Court
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746 OCTOBER TERM, 1970
MARSHALL, J., concurring 403 U. S.
to redecide those issues-to overrule Congress. See
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952).
On at least two occasions Congress has refused to enact
legislation that would have made the conduct engaged in
here unlawful and given the President the power that
he seeks in this case. In 1917 during the debate over the
original Espionage Act, still the basic provisions of ? 793,
Congress rejected a proposal to give the President in time
of war or threat of war authority to directly prohibit by
proclamation the publication of information relating to
national defense that might be useful to the enemy. The
proposal provided that :
"During any national emergency resulting from a
war to which the United States is a party, or from
threat of such a war, the President may, by procla-
mation, declare the existence of such emergency and,
by proclamation, prohibit the publishing or communi-
cating of, or the attempting to publish or communi-
cate any information relating to the national defense
which, in his judgment, is of such character that it is
or might be useful to the enemy. Whoever violates
any such prohibition shall be punished by a fine of
not more than $10,000 or by imprisonment for not
more than 10 years, or both: Provided, That nothing
in this section shall be construed to limit or restrict
any discussion, comment, or criticism of the acts or
policies of the Government or its representatives or
the publication of the same." 55 Cong. Rec. 1763.
Congress rejected this proposal after war against 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-
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Congress. See
r, 343 U. S. 579
refused to enact
duct engaged in
the power that
debate over the
visions of ? 793,
'resident in time
ctly prohibit by
,tion relating to
ie enemy. The
?esulting from a
b party, or from
may, by procla-
emergency and,
ing or communi-
sh or communi-
national defense
3racter that it is
Jhoever violates,
ied by a fine of
onment for not
d, That nothing
limit or restrict
n of the acts or
presentatives or
'ong. Rec. 1763.
ar against Ger-
iy believed that
l that the threat
is. The Execu-
I requested that
.onsidered. In-
713 MARSHALL, J., concurring
stead, the Executive Branch comes to this Court and
asks that it be granted the power Congress refused to
give.
In 1957 the United States Commission on Government
Security found that "[a]irplane journals, scientific peri-
odicals, and even the daily newspaper have featured
articles containing information and other data which
should have been deleted in whole or in part for security
reasons." In response to this problem the Commission
proposed that "Congress enact legislation making it a
crime for any person willfully to disclose without proper
authorization, for any purpose whatever, information
classified `secret' or `top secret,' knowing, or having rea-
sonable grounds to believe, such information to have been
so classified." Report of Commission on Government
Security 619-620 (1957). After substantial floor discus-
sion on the proposal, it was rejected. See 103 Cong.
Rec. 10447-10450. If the proposal that Sen. Cotton
championed on the floor had been enacted, the publica-
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 to
remake that decision. This Court has no such power.
Either the Government has the power under statutory
grant to use traditional criminal law to protect the coun-
try or, if there is no basis for arguing that Congress has
made the activity a crime, it is plain that Congress has
specifically refused to grant the authority the 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 into every breach per-
ceived by some Government official nor is it for this Court
to take on itself the burden of enacting law, especially
a law that Congress has refused to pass.
I believe that the judgment of the United States Court
of Appeals for the District of Columbia Circuit should
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BURGER, C. J., dissenting 403 U. S.
be affirmed and the judgment of the United States Court
of Appeals for the Second Circuit should be reversed in-
sofar as it remands the case for further hearings.
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior
restraint against expression, that from the time of Near
v. Minnesota, 283 U. S. 697 (1931), until recently in
Organization for a Better Austin v. Keefe, 402 U. S. 415
(1971), we have had little occasion to be concerned with
cases involving prior restraints against news reporting
on matters of public interest. There is, therefore, little
variation among the members of the Court in terms of
resistance to prior restraints against publication. Ad-
herence to this basic constitutional principle, however,
does not make these cases simple. In these cases, the
imperative of a free and unfettered press comes into col-
lision with another imperative, the effective functioning
of a complex modern government and specifically the
effective exercise of certain constitutional powers of the
Executive. Only those who view the First Amendment
as an absolute in all circumstances--a view I respect, but
reject-can find such cases as these to be simple or easy.
These cases are not simple for another and more im-
mediate reason. We do not know the facts of the cases.
No District Judge knew all the facts. No Court of Ap-
peals judge knew all the facts. No member of this Court
knows all the facts.
Why are we in this posture, in which only those judges
to whom the First Amendment is absolute and permits
of no restraint in any circumstances or for any reason,
are really in a position to act?
I suggest we are in this posture because these cases
have been conducted in unseemly haste. MR. JUSTICE
HARLAN covers the chronology of events demonstrating
the hectic pressures under which these cases have been
processed and I need not restate them. The prompt
set
pri
me
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to
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anc
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Such
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ing 403 U. S.
United States Court
could be reversed in-
-ther hearings.
enting.
limitations on prior
om the time of Near
1), until recently in
Keefe, 402 U. S. 415
to be concerned with
ainst news reporting
re is, therefore, little
ae Court in terms of
ist publication. Ad-
I principle, however,
In these cases, the
press comes into col-
effective functioning
and specifically the
ational powers of the
,he First Amendment
-a view I respect, but
to be simple or easy.
another and more im-
the facts of the cases.
!ts. No Court of Ap-
member of this Court
hich only those judges
absolute and permits
;es or for any reason,
~e because these cases
haste. MR. JUSTICE
events demonstrating
these cases have been
them. The prompt
NEW YORK TIMES CO. v. UNITED STATES 749
713 BURGER, C. J., dissenting
setting of these cases reflects our universal abhorrence of
prior restraint. But prompt judicial action does not
mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part
to the manner in which the Times proceeded from the
date it obtained the purloined documents. It seems
reasonably clear now that the haste precluded reasonable
and deliberate judicial treatment of these cases and was
not warranted. The precipitate action of this Court
aborting trials not yet completed is not the kind of
judicial conduct that ought to attend the disposition
of a great issue.
The newspapers make a derivative claim under the
First Amendment; they denominate this right as the
public "right to know" ; by implication, the Times asserts
a sole trusteeship of that right by virtue of its journalistic
"scoop." The right is asserted as an absolute. Of course,
the First Amendment right itself is not an absolute, as
Justice Holmes so long ago pointed out in his aphorism
concerning the right to shout "fire" in a crowded theater
if there was no fire. There are other exceptions, some of
which Chief Justice Hughes mentioned by way of ex-
ample in Near v. Minnesota. There are no doubt other
exceptions no one has had occasion to describe or dis-
cuss. Conceivably such exceptions may be lurking in
these cases and would have been flushed had they been
properly considered in the trial courts, free from unwar-
ranted deadlines and frenetic pressures. An issue of
this importance should be tried and heard in a judicial
atmosphere conducive to thoughtful, reflective delibera-
tion, especially when haste, in terms of hours, is unwar-
ranted in light of the long period the Times, by its
own choice, deferred publication.'
1 As noted elsewhere the Times conducted its analysis of the 47
volumes of Government documents over a period of several months
and did so with a degree of security that a government might envy.
Such security was essential, of course, to protect the enterprise
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BURGER, C. J., dissenting 403 U. S.
It is not disputed that the Times has had unauthorized
possession of the documents for three to four months,
during which it has had its expert analysts studying them,
presumably digesting them and preparing the material
for publication. During all of this time, the Times, pre-
sumably in its capacity as trustee of the 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; the analysis of 7,000
pages of complex material drawn from a vastly greater
volume of material would inevitably take time and the
writing of good news stories takes time. But why should
the United States Government, from whom this 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 the past practiced and
stated editorially to be the duty of an honorable press-
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 that the
Times contemplated enjoining its use by any other publisher in
violation of its copyright. Paradoxically this would afford it a
protection, analogous to prior restraint, against all others-a pro-
tection the Times denies the Government of the United States.
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me
thi,
thu
tha
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had unauthorized
e to four months,
?sts studying them,
firing the material
-e, the Times, pre-
;he public's "right
r purposes it con-
edge was delayed.
.e analysis of 7,000
i a vastly greater
ake time and the
But why should
whom this infor-
ieone, along with
pellate judges be
? these months of
has somehow and
At be vindicated
ice the newspaper
ections to release
nt an opportunity
-termine whether
Aion? Stolen or
ized, much of the
3lassified, since it
ch an approach-
last practiced and
ionorable press-
t well have nar-
righted its material
argument that the
other publisher in
would afford it a
t all others-a pro-
he United States.
NEW YORK TIMES CO. v. UNITED STATES 751
713 Bum=, C. J., dissenting
rowed the area of disagreement as to what was and was
not publishable, leaving the remainder to be resolved in
orderly litigation, if necessary. To me it is hardly be-
lievable that a newspaper long regarded as a great in-
stitution in American life would fail to perform one of
the basic and simple duties of every citizen with respect
to the discovery or possession of stolen property or secret
government documents. That duty, I had thought-per-
haps naively-was to report forthwith, to responsible
public officers. This duty rests on taxi drivers, Justices,
and the New York Times. The course followed by the
Times, whether so calculated or not, removed any pos-
sibility of orderly litigation of the issues. If the action
of the judges up to now has been correct, that result is
sheer happenstance.'
Our grant of the writ of certiorari before final judg-
ment in the Times case aborted the trial in the District
Court before it had made a complete record pursuant to
the mandate of the Court of Appeals for the Second
Circuit.
The consequence of all this melancholy series of events
is that we literally do not know what we are acting on.
As I see it, we have been forced to deal with litigation
concerning rights of great magnitude without an ade-
quate record, and surely without time for adequate treat-
ment either in the prior proceedings or in this Court.
It is interesting to note that counsel on both sides, in
oral argument before this Court, were frequently unable
to respond to questions on factual points. Not surpris-
ingly they pointed out that they had been working
literally "around the clock" and simply were unable to
review the documents that give rise to these cases and
2 Interestingly the Times explained its refusal to allow the Govern-
ment to examine its own purloined documents by saying in substance
this might compromise its sources and informants! The Times
thus asserts a right to guard the secrecy of its sources while denying
that the Government of the United States has that power.
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752 OCTOBER TERM, 1970
HARLAN, J., dissenting 403 U. S.
were not familiar with them. This Court is in no better
posture. I agree generally with MR. JUSTICE HARLAN
and MR. JUSTICE BLACKMUN but I am not prepared to
reach the merits.3
I would affirm the Court of Appeals for the Second
Circuit and allow the District Court to complete the
trial aborted by our grant of certiorari, meanwhile pre-
serving the status quo in the Post case. I would direct
that the District Court on remand give priority to the
Times case to the exclusion of all other business of that
court but I would not set arbitrary deadlines.
I should add that I am in general agreement with
much of what MR. JUSTICE WHITE has expressed with
respect to penal sanctions concerning communication or
retention of documents or information relating to the
national defense.
We all crave speedier judicial processes but when
judges are pressured as in these cases the result is a
parody of the judicial function.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE
and MR. JUSTICE BLACKMUN join, dissenting.
These cases forcefully call to mind the wise admoni-
tion of Mr. Justice Holmes, dissenting in Northern
Securities Co. v. United States, 193 U. S. 197, 400-401
(1904):
"Great cases like hard cases make bad law. For
great cases are called great, not by reason of their
3 With respect to the question of inherent power of the Executive
to classify papers, records, and documents as secret, or otherwise un-
available for public exposure, and to secure aid of the courts for
enforcement, there may be an analogy with respect to this Court.
No statute gives this Court express power to establish and enforce
the utmost security measures for the secrecy of our deliberations and
records. Yet I have little doubt as to the inherent power of the
Court to protect the confidentiality of its internal operations by what-
ever judicial measures may be required.
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-urt is in no better ;
JUSTICE HARLAN }
n not prepared to
is for the Second
to complete the
i, meanwhile pre-
I would direct
,re priority to the
r business of that
tdlines.
. agreement with
is expressed with
!ommunication or
i relating to the
cesses but when
s the result is a
[E CHIEF JUSTICE
tenting.
,he wise admoni-
ng in Northern
S. 197, 400-401
:e bad law. For
r reason of their
ver of the Executive
ret, or otherwise un-
d of the courts for
spect to this Court.
3tablish and enforce
ur deliberations and
,erent power of the
operations by what-
NEW YORK TIMES CO. v. UNITED STATES 753
HARLAN, J., dissenting
real importance in shaping the law of the future,
but because of some accident of immediate over-
whelming interest which appeals to the feelings and
distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before
which even well settled principles of law will bend."
With all respect, I consider that the Court has been
almost irresponsibly feverish in dealing with these cases.
Both the Court of Appeals for the Second Circuit
and the Court of Appeals for the District of Columbia
Circuit rendered judgment on June 23. The New York
Times' petition for certiorari, its motion for accelerated
consideration thereof, and its application for interim relief
were filed in this Court on June 24 at about 11 a. m. The
application of the United States for interim relief in the
Post case was also filed here on June 24 at about 7:15
p. m. This Court's order setting a hearing before us on
June 26 at 11 a. m., a course which I joined only to avoid
the possibility of even more peremptory action by the
Court, was issued less than 24 hours before. The record
in the Post case was filed with the Clerk shortly before
1 p. m. on June 25; the record in the Times case did not
arrive until 7 or 8 o'clock that same night. The briefs
of the parties were received less than two hours before
argument on June 26.
This frenzied train of events took place in the name
of the presumption against prior restraints created by
the First Amendment. Due regard for the extraordi-
narily important and difficult questions involved in these
litigations should have led the Court to shun such a pre-
cipitate timetable. In order to decide the merits of
these cases properly, some or all of the following ques-
tions should have been faced:
1. Whether the Attorney General is authorized to
bring these suits in the name of the United States. Com-
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754 OCTOBER TERM, 1970
HARLAN, J., dissenting 403 U. S.
pare In re Debs, 158 U. S. 564 (1895), with Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). This
question involves as well the construction and validity
of a singularly opaque statute-the Espionage Act, 18
U. S. C. ? 793 (e).
2. Whether the First Amendment permits the federal
courts to enjoin publication of stories which would pre-
sent a serious threat to national security. See Near v.
Minnesota, 283 U. S. 697, 716 (1931) (dictum).
3. Whether the threat to publish highly secret docu-
ments is of itself a sufficient implication of national secu-
rity to justify an injunction on the theory that regardless
of the contents of the documents harm enough results
simply from the demonstration of such a breach of
secrecy.
4. Whether the unauthorized disclosure of any of these
particular documents would seriously impair the national
security.
5. What weight should be given to the opinion of high
officers in the Executive Branch of the Government with
respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and
use the documents notwithstanding the seemingly uncon-
tested facts that the documents, or the originals of which
they are duplicates, were purloined from the Govern-
ment's possession and that the newspapers received them
with knowledge that they had been feloniously acquired.
Cf. Liberty Lobby, Inc. v. Pearson, 129 U. S. App. D. C.
74, 390 F. 2d 489 (1967, amended 1968).
7. Whether the threatened harm to the national secu-
rity or the Government's possessory interest in the docu-
ments justifies the issuance of an injunction against
publication in light of-
a. The strong First Amendment policy against prior
restraints on publication;
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, with Youngstown
.579 (1952). This
action and validity
Espionage Act, 18
permits the federal
3 which would pre-
irity. See Near v.
(dictum).
highly secret docu-
)n of national secu-
~ory that regardless
trm enough results
such a breach of
sure of any of these
impair the national
the opinion of high
e Government with
titled to retain and
to seemingly uncon-
e originals of which
from the Govern-
apers received them
3loniously acquired.
l9 U. S. App. D. C.
68).
the national secu-
riterest in the docu-
injunction against
)olicy against prior
713 HARLAN, J., dissenting
b. The doctrine against enjoining conduct in violation
of criminal statutes; and
c. The extent to which the materials at issue have ap-
parently already been otherwise disseminated.
These are difficult questions of fact, of law, and of
judgment; the potential consequences of erroneous deci-
sion are enormous. The time which has been available
to us, to the lower courts,* and to the parties has been
wholly inadequate for giving these cases the kind of
consideration they deserve. It is a reflection on the
stability of the judicial process that these great issues-
as important as any that have arisen during my time on
the Court-should have been decided under the pressures
engendered by the torrent of publicity that has attended
these litigations from their inception.
Forced as I am to reach the merits of these cases, I
dissent from the opinion and judgments of the Court.
Within the severe limitations imposed by the time con-
straints under which I have been required to operate, I
can only state my reasons in telescoped form, even though
in different circumstances I would have felt constrained
to deal with the cases in the fuller sweep indicated above.
It is a sufficient basis for affirming the Court of Ap-
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
*The hearing in the Post case before Judge Gesell began at 8 a. m.
on June 21, and his decision was rendered, under the hammer of a
deadline imposed by the Court of Appeals, shortly before 5 p. m.
on the same day. The hearing in the Times case before Judge Gur-
fein was held on June 18 and his decision was rendered on June 19.
The Government's appeals in the two cases were heard by the Courts
of Appeals for the District of Columbia and Second Circuits, each
court sitting en banc, on June 22. Each court rendered its decision
on the following afternoon.
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HARLAN, J., dissenting 403 U. S.
to the District Court. At the least this conclusion was
not an abuse of discretion.
In the Post litigation the Government had more time
to prepare; this was apparently the basis for the refusal
of the Court of Appeals for the District of Columbia Cir-
cuit on rehearing to conform its judgment to that of
the Second Circuit. But I think there is another and
more fundamental reason why this judgment cannot
stand-a reason which also furnishes an additional
ground for not reinstating the judgment of the District
Court in the Times litigation, set aside by the Court of
Appeals. It is plain to me that the scope of the judicial
function in passing upon the activities of the Executive
Branch of the Government in the field of foreign affairs
is very narrowly restricted. This view is, I think, dic-
tated by the concept of separation of powers upon which
our constitutional system rests.
In a speech on the floor of the House of Representa-
tives, Chief Justice John Marshall, then a member of
that body, stated:
"The President is the sole organ of the nation in
its external relations, and its sole representative with
foreign nations." 10 Annals of Cong. 613 (1800).
From that time, shortly after the founding of the Nation,
to this, there has been no substantial challenge to this
description of the scope of executive power. See United
States v. Curtiss-Wright Corp., 299 U. S. 304, 319-321
(1936), collecting authorities.
From this constitutional primacy in the field of foreign
affairs, it seems to me that certain conclusions necessarily
follow. Some of these were stated concisely by Presi-
dent Washington, declining the request of the House of
Representatives for the papers leading up to the nego-
tiation of the Jay Treaty:
"The nature of foreign negotiations requires cau-
tion, and their success must often depend on secrecy;
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;his conclusion was
ent had more time
asis for the refusal
!t of Columbia Cir-
lgment to that of
.re is another and
judgment cannot
tes an additional
ant of the District
.e by the Court of
ope of the judicial
of the Executive
I. of foreign affairs
v is, I think, dic-
owers upon which
se of Representa-
ien a member of
i of the nation in
!presentative with
,ong. 613 (1800).
ing of the Nation,
challenge to this
wer. See United
S. 304, 319-321
D
to field of foreign
usions necessarily
ncisely by Presi-
of the House of
up to the nego-
)ns requires cau-
+pend on secrecy;
NEW YORK TIMES CO. v. UNITED STATES 757
713 HARLAN, J., dissenting
and even when brought to a conclusion a full dis-
closure of all the measures, demands, or eventual
concessions which may have been proposed or con-
templated would be extremely impolitic; for this
might have a pernicious influence on future nego-
tiations, or produce immediate inconveniences,
perhaps danger and mischief, in relation to other
powers." 1 J. Richardson, Messages and Papers of
the Presidents 194-195 (1896).
The power to evaluate the "pernicious influence" of
premature disclosure is not, however, lodged in the
Executive alone. I agree that, in performance of its duty
to protect the values of the First Amendment against
political pressures, the judiciary must review the initial
Executive determination to the point of satisfying itself
that the subject matter of the dispute does lie within the
proper compass of the President's foreign relations power.
Constitutional considerations forbid "a complete aban-
donment of judicial control." Cf. United States v.
Reynolds, 345 U. S. 1, 8 (1953). Moreover, the judi-
ciary may properly insist that the determination that
disclosure of the 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 Defense-after actual personal
consideration by that officer. This safeguard is required
in the analogous area of executive claims of privilege
for secrets of state. See id., at 8 and n. 20; Duncan v.
Cammell, Laird & Co., [1942] A. C. 624, 638 (House of
Lords).
But in my judgment the judiciary may not properly
go beyond these two inquiries and redetermine for itself
the probable impact of disclosure on the national
security.
"[T]he very nature of executive decisions as to
foreign policy is political, not judicial. Such de-
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758 OCTOBER TERM, 1970
HARLAN, J., dissenting 403 U. S.
cisions are wholly confided by our Constitution to
the political departments of the government, Execu-
tive and Legislative. They are delicate, complex,
and involve large elements of prophecy. They are
and should be undertaken only by those directly re-
sponsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to be-
long in the domain of political power not subject to
judicial intrusion or inquiry." Chicago & Southern
Air Lines v. Waterman Steamship Corp., 333 U. S.
103, 111 (1948) (Jackson, J.).
Even if there is some room for the judiciary to over-
ride the executive determination, it is plain that the
scope of review must be exceedingly narrow. I can see
no indication in the opinions of either the District Court
or the Court of Appeals in the Post litigation that the
conclusions of the Executive were given even the defer-
ence owing to an administrative agency, much less that
owing to a co-equal branch of the Government operating
within the field of its constitutional prerogative.
Accordingly, I would vacate the judgment of the Court
of Appeals for the District of Columbia Circuit on this
ground and remand the case for further proceedings in
the District Court. Before the commencement of such
further proceedings, due opportunity should be afforded
the Government for procuring from the Secretary of
State or the Secretary of Defense or both an expression
of their views on the issue of national security. The
ensuing review by the District Court should be in ac-
cordance with the views expressed in this opinion. And
for the reasons stated above I would affirm the judgment
of the Court of Appeals for the Second Circuit.
Pending further hearings in each case conducted under
the appropriate ground rules, I would continue the
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ur Constitution to
overnment, Execu-
delicate, complex,
)phecy. They are
7 those directly re-
lfare they advance
f a kind for which
ude, facilities nor
been held to he-
wer not subject to
'iicago & Southern
o Corp., 333 U. S.
judiciary to over-
is plain that the
farrow. I can see
the District Court
litigation that the
-n even the defer-
:y, much less that
,rnment operating
)rerogative.
ment of the Court
is Circuit on this
ter proceedings in
encement of such
hould be afforded
the Secretary of
oth an expression
al security. The
should be in ac-
lis opinion. And
irm the judgment
nd Circuit.
conducted under
ild continue the
NEW YORK TIMES CO. v. UNITED STATES 759
713 BLACKMUN, J., dissenting
restraints on publication. I cannot believe that the doc-
trine prohibiting prior restraints reaches to the point of
preventing courts from maintaining the status quo long
enough to act responsibly in matters of such national
importance as those involved here.
MR. JUSTICE BI.ACxmuN, dissenting.
I join MR. JUSTICE HARLAN in his dissent. I also am
in substantial accord with much that MR. JUSTICE WHITE
says, by way of admonition, in the latter part of his
opinion.
At this point the focus is on only the comparatively
few documents specified by the Government as critical.
So far as the other material-vast in amount-is con-
cerned, let it be published and published forthwith if the
newspapers, once the strain is gone and the sensationalism
is eased, still feel the urge so to do.
But we are concerned here with the few documents
specified from the 47 volumes. Almost 70 years ago Mr.
Justice Holmes, dissenting in a celebrated case, observed :
"Great cases like hard cases make bad law. For
great cases are called great, not by reason of their
real importance in shaping the law of the future, but
because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts
the judgment. These immediate interests exercise a
kind of hydraulic pressure ...." Northern Se-
curities Co. v. United States, 193 U. S. 197, 400-401
(1904).
The present cases, if not great, are at least unusual in
their posture and implications, and the Holmes observa-
tion certainly has pertinent application.
The New York Times clandestinely devoted a period of
three months to examining the 47 volumes that came into
its unauthorized possession. Once it had begun publi-
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760 OCTOBER TERM, 1970
BLACKMUN, J., dissenting 403 U. S.
cation of material from those volumes, the New York
case now before us emerged. It immediately assumed,
and ever since has maintained, a frenetic pace and char-
acter. Seemingly, once publication started, the material
could not be made public fast enough. Seemingly, from
then on, every deferral or delay, by 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 us at oral
argument and professed criticism of the Government for
not lodging its protest earlier than by a Monday telegram
following the initial Sunday publication.
The District of Columbia case is much the same.
Two federal district courts, two United States courts of
appeals, and this Court-within a period of less than
three weeks from inception until today-have been
pressed into hurried decision of profound constitutional
issues on inadequately developed and largely assumed
facts without the careful deliberation that, one would
hope, should characterize the American judicial process.
There has been much writing about the law and little
knowledge and less digestion of the facts. In the New
York case the judges, both trial and appellate, had not yet
examined the basic material when the case was brought
here. In the District of Columbia case, little more was
done, and what was accomplished in this respect was only
on required remand, with the Washington Post, on the
excuse that it was trying to protect its source of infor-
mation, initially refusing to reveal what material it
actually possessed, and with the District Court forced
to make assumptions as to that possession.
With such respect as may be due to the contrary view,
this, in my opinion, is not the way to try a lawsuit of
this magnitude and asserted importance. It is not the
way for federal courts to adjudicate, and to be required
to adjudicate, issues that allegedly concern the Nation's
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Les, the New York
nediately assumed,
etic pace and char-
;arted, the material
Seemingly, from
restraint or other-
ned violative of the
"right immediately
I before us at oral
he Government for
a Monday telegram
ion.
uch the same.
ted States courts of
)eriod of less than
today-have been
)und constitutional
id largely assumed
n that, one would
%n judicial process.
the law and little
:acts. In the New
pellate, had not yet
e case was brought
iae, little more was
its respect was only
ngton Post, on the
its source of infor-
what material it
strict Court forced
%sion.
the contrary view,
to try a lawsuit of
nce. It is not the
and to be required
-ncern the Nation's
NEW YORK TIMES CO. v. UNITED STATES 761
713 BLACKMUN, J., dissenting
vital welfare. The country would be none the worse off
were the cases tried quickly, to be sure, but in the custo-
mary and properly deliberative manner. The most recent
of the material, it is said, dates no later than 1968, already
about three years ago, and the Times itself took three
months to formulate its plan of procedure and, thus, de-
prived its public for that period.
The First Amendment, after all, is only one part of an
entire Constitution. Article II of the great document
vests in the Executive Branch primary power over the
conduct of foreign affairs and places in that branch the
responsibility for the Nation's safety. Each provision of
the Constitution is important, and I cannot subscribe to
a doctrine of unlimited absolutism for the First Amend-
ment at the cost of downgrading other provisions. First
Amendment absolutism has never commanded a majority
of this Court. See, for example, Year v. Minnesota, 283
U. S. 697, 708 (1931), and Schenck v. United States, 249
U. S. 47, 52 (1919). What is needed here is a weighing,
upon properly developed standards, of the broad right of
the press to print and of the very narrow right of the
Government to prevent. Such standards are not yet
developed. The parties here are in disagreement as to
what those standards should be. But even the news-
papers concede that there are situations where restraint
is in order and is constitutional. Mr. Justice Holmes
gave us a suggestion when he said in Schenck,
"It is a question of proximity and degree. When a
nation is at war many things that might be said in
time of peace are such a hindrance to its effort that
their utterance will not be endured so long as men
fight and that no Court could regard them as pro-
tected by any constitutional right." 249 U. S., at
52.
I therefore would remand these cases to be developed
expeditiously, of course, but on a schedule permitting the
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762 OCTOBER TERM, 1970
BLACKMUN, J., dissenting 403 U. S.
orderly presentation of evidence from both sides, with
the use of discovery, if necessary, as authorized by the
rules, and with the preparation of briefs, oral argument,
and court opinions of a quality better than has been seen
to this point. In making this last statement, I criticize
no lawyer or judge. I know from past personal experi-
ence the agony of time pressure in the preparation of
d
litigation. But these thcases an the is one, involved an
has
the courts, including
been produced thus far.
It may well be that if these cases were allowed to de-
velop as they should be developed, and to be tried as
lawyers should try them and as courts should hear them,
free of pressure and panic and sensationalism, other
light would be shed on the situation and contrary con-
siderations, for me, might prevail. But that is not the
present posture of the litigation.
The Court, however, decides the cases today the other
way. I therefore add one final comment.
I strongly urge, and sincerely hope, that these two
newspapers will be fully aware of their ultimate responsi-
bilities to the United States of America. Judge Wilkey,
dissenting in the District of Columbia case, after a review
of only the affidavits before his court (the basic papers
had not then been made available by either party), con-
cluded that there were a number of examples of docu-
ments that, if in the possession of the Post, and if pub-
lished, "could clearly result in great harm to the nation,"
and he defined "harm" to mean "the death of soldiers,
the destruction of alliances, the greatly increased 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 not only to
the affidavits, but to the material itself. I regret to say
that from this examination I fear that Judge Wilkey's
statements have possible foundation. I therefore share
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-oth sides, with
thorized by the
oral argument,
~n has been seen
ment, I criticize
personal experi-
preparation of
es involved and
better than has
e allowed to de-
l to be tried as
Could hear them,
tionalism, other
-d contrary con-
that is not the
today the other
.t.
that these two
Itimate responsi-
Judge Wilkey,
se, after a review
the basic papers
ther party), con-
:amples of docu-
?ost, and if pub-
n to the nation,"
leath of soldiers,
y increased diffi-
.e inability of our
one, have now
Study not only to
I regret to say
t Judge Wilkey's
I therefore share
NEW YORK TIMES CO. v. UNITED STATES 763
713 BLACHMUN, J., dissenting
his concern. I hope that damage has not already been
done. If, however, damage has been done, and if, with
the Court's action today, these newspapers proceed to
publish the critical documents and there results there-
from "the death of soldiers, the destruction of alliances,
the greatly increased difficulty of negotiation with our
enemies, the inability of our diplomats.to negotiate," to
which list I might add the factors of prolongation of the
war and of further delay in the freeing of United States
prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.
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