New York Times Co. v. United States

No. 1873

Argued June 26, 1971

Decided June 30, 1971 *

403 U.S. 713

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus



The United States, which brought these actions to enjoin publication in

the New York Times and in the Washington Post of certain classified

material, has not met the "heavy burden of showing justification for the

enforcement of such a [prior] restraint."



No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C.

___, 446 F.2d 1327, affirmed. [403 U.S. 714] Per curiam opinion.



PER CURIAM



We granted certiorari in these cases in which the United States seeks to

enjoin the New York Times and the Washington Post from publishing the

contents of a classified study entitled "History of U.S. Decision-Making

Process on Viet Nam Policy."  Post, pp. 942, 943.



"Any system of prior restraints of expression comes to this Court

bearing a heavy presumption against its constitutional validity." 

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 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 judgment affirming the judgment of the District Court for the

Southern District of New York.  The stays entered June 25, 1971, by the

Court are vacated.  The judgments shall issue forthwith.



So ordered. BLACK, J., concurring



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 [403 U.S. 715] that every

moment's continuance of the injunctions against these newspapers amounts

to a flagrant, indefensible, and continuing violation of the First

Amendment.  Furthermore, after oral argument, I agree completely that we

must affirm the judgment of the Court of Appeals for the District of

Columbia Circuit and reverse the judgment of the Court of Appeals for

the Second Circuit for the reasons stated by my Brothers DOUGLAS and

BRENNAN.  In my view, it is unfortunate that some of my Brethren are

apparently willing to hold that the publication of news may sometimes be

enjoined.  Such a holding would make a shambles of the First Amendment.



Our Government was launched in 1789 with the adoption of the

Constitution.  The Bill of Rights, including the First Amendment,

followed in 1791.  Now, for the first time in the 182 years since the

founding of the Republic, the federal courts are asked to hold that the

First Amendment does not mean what it says, but rather means that the

Government can halt the publication of current news of vital importance

to the people of this country.



In seeking injunctions against these newspapers, and in its presentation

to the Court, the Executive Branch seems to have forgotten the essential

purpose and history of the First Amendment.  When the Constitution was

adopted, many people strongly opposed it because the document contained

no Bill of Rights to safeguard certain basic freedoms.  They especially

feared that the [403 U.S. 716] new powers granted to a central

government might be interpreted to permit the government to curtail

freedom of religion, press, assembly, and speech.  In response to an

overwhelming public clamor, James Madison offered a series of amendments

to satisfy citizens that these great liberties would remain safe and

beyond the power of government to abridge.  Madison proposed what later

became the First Amendment in three parts, two of which are set out

below, and one of which proclaimed:



The people shall not be deprived or abridged of their right to speak, to

write, or to publish their sentiments, and the freedom of the press, as

one of the great bulwarks of liberty, shall be inviolable. (Emphasis

added.)  The amendments were offered to curtail and restrict the general

powers granted to the Executive, Legislative, and Judicial Branches two

years before in the original Constitution.  The Bill of Rights changed

the original Constitution into a new charter under which no branch of

government could abridge the people's freedoms of press, speech,

religion, and assembly.  Yet the Solicitor General argues and some

members of the Court appear to agree that the general powers of the

Government adopted in the original Constitution should be interpreted to

limit and restrict the specific and emphatic guarantees of the Bill of

Rights adopted later.  I can imagine no greater perversion of history. 

Madison and the other Framers of the First Amendment, able men [403 U.S.

717] that they were, wrote in language they earnestly believed could

never be misunderstood:  "Congress shall make no law . . . abridging the

freedom . . . of the press. . . ."  Both the history and language of the

First Amendment support the view that the press must be left free to

publish news, whatever the source, without censorship, injunctions, or

prior restraints.



In the First Amendment, the Founding Fathers gave the free press the

protection it must have to fulfill its essential role in our democracy. 

The press was to serve the governed, not the governors.  The

Government's power to censor the press was abolished so that the press

would remain forever free to censure the Government.  The press was

protected so that it could bare the secrets of government and inform the

people.  Only a free and unrestrained press can effectively expose

deception in government.  And paramount among the responsibilities of a

free press is the duty to prevent any part of the government from

deceiving the people and sending them off to distant lands to die of

foreign fevers and foreign shot and shell.  In my view, far from

deserving condemnation for their courageous reporting, the New York

Times, the Washington Post, and other newspapers should be commended for

serving the purpose that the Founding Fathers saw so clearly.  In

revealing the workings of government that led to the Vietnam war, the

newspapers nobly did precisely that which the Founders hoped and trusted

they would do.



The Government's case here is based on premises entirely different from

those that guided the Framers of the First Amendment.  The Solicitor

General has carefully and emphatically stated:



Now, Mr. Justice [BLACK], your construction of . . . [the First

Amendment] is well known, and I certainly respect it.  You say that no

law means no law, and that should be obvious.  I can only [403 U.S. 718]

say, Mr. Justice, that to me it is equally obvious that "no law" does

not mean "no law," and I would seek to persuade the Court that that is

true. . . .  [T]here are other parts of the Constitution that grant

powers and responsibilities to the Executive, and . . . the First

Amendment was not intended to make it impossible for the Executive to

function or to protect the security of the United States. And the

Government argues in its brief that, in spite of the First Amendment,

[t]he authority of the Executive Department to protect the nation

against publication of information whose disclosure would endanger the

national security stems from two interrelated sources:  the

constitutional power of the President over the conduct of foreign

affairs and his authority as Commander-in-Chief.



In other words, we are asked to hold that, despite the First Amendment's

emphatic command, the Executive Branch, the Congress, and the Judiciary

can make laws enjoining publication of current news and abridging

freedom of the press in the name of "national security."  The Government

does not even attempt to rely on any act of Congress.  Instead, it makes

the bold and dangerously far-reaching contention that the courts should

take it upon themselves to "make" a law abridging freedom of the press

in the name of equity, presidential power and national security, even

when the representatives of the people in Congress have adhered to the

command of the First Amendment and refused to make such a law.  See

concurring opinion of MR. JUSTICE DOUGLAS, [403 U.S. 719] post at   To

find that the President has "inherent power" to halt the publication of

news by resort to the courts would wipe out the First Amendment and

destroy the fundamental liberty and security of the very people the

Government hopes to make "secure."  No one can read the history of the

adoption of the First Amendment without being convinced beyond any doubt

that it was injunctions like those sought here that Madison and his

collaborators intended to outlaw in this Nation for all time.



The word "security" is a broad, vague generality whose contours should

not be invoked to abrogate the fundamental law embodied in the First

Amendment.  The guarding of military and diplomatic secrets at the

expense of informed representative government provides no real security

for our Republic.  The Framers of the First Amendment, fully aware of

both the need to defend a new nation and the abuses of the English and

Colonial governments, sought to give this new society strength and

security by providing that freedom of speech, press, religion, and

assembly should not be abridged.  This thought was eloquently expressed

in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice

that he was -- when the Court held a man could not be punished for

attending a meeting run by Communists. The greater the importance of

safeguarding the community from incitements to the overthrow of our

institutions by force and violence, the more imperative is the need to

preserve inviolate the constitutional rights of free speech, free press

and free [403 U.S. 720] assembly in order to maintain the opportunity

for free political discussion, to the end that government may be

responsive to the will of the people and that changes, if desired, may

be obtained by peaceful means.  Therein lies the security of the

Republic, the very foundation of constitutional government. DOUGLAS, J.,

concurring



MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.



While I join the opinion of the Court, I believe it necessary to express

my views more fully.



It should be noted at the outset that the First Amendment provides that

"Congress shall male no law . . . abridging the freedom of speech, or of

the press."  That leaves, in my view, no room for governmental restraint

on the press.



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 [403

U.S. 721] not more than $10,000 or imprisoned not more than ten years,

or both.



The Government suggests that the word "communicates" is broad enough to

encompass publication.



There are eight sections in the chapter on espionage and censorship, 

792-799.  In three of those eight, "publish" is specifically mentioned: 

 794(b) applies to Whoever, in time of war, with intent that the same

shall be communicated to the enemy, collects, records, publishes, or

communicates . . . [the disposition of armed forces].



Section 797 applies to whoever "reproduces, publishes, sells, or gives

away" photographs of defense installations.



Section 798, relating to cryptography, applies to whoever: 

"communicates, furnishes, transmits, or otherwise makes available . . .

or publishes" the described material.  (Emphasis added.)



Thus, it is apparent that Congress was capable of, and did, distinguish

between publishing and communication in the various sections of the

Espionage Act.



The other evidence that  793 does not apply to the press is a rejected

version of  793.  That version read:



During any national emergency resulting from a war to which the United

States is a party, or from threat of such a war, the President may, by

proclamation, declare the existence of such emergency and, by

proclamation, prohibit the publishing or communicating of, or the

attempting to publish or communicate any information relating to the

national defense which, in his judgment, is of such character that it is

or might be useful to the [403 U.S. 722] enemy. 55 Cong.Rec. 1763. 

During the debates in the Senate, the First Amendment was specifically

cited, and that provision was defeated.  55 Cong.Rec. 2167.



Judge Gurfein's holding in the Times case that this Act does not apply

to this case was therefore preeminently sound.  Moreover, the Act of

September 23, 1950, in amending 18 U.S.C.  793 states in  1(b) that:



Nothing in this Act shall be construed to authorize, require, or

establish military or civilian censorship or in any way to limit or

infringe upon freedom of the press or of speech as guaranteed by the

Constitution of the United States and no regulation shall be promulgated

hereunder having that effect. 64 Stat. 987.  Thus, Congress has been

faithful to the command of the First Amendment in this area.



So any power that the Government possesses must come from its "inherent

power."



The power to wage war is "the power to wage war successfully."  See

Hirabayashi v. United States, 320 U.S. 81, 93.  But the war power stems

from a declaration of war.  The Constitution by Art. I,  8, gives

Congress, not the President, power "[t]o declare War."  Nowhere are

presidential wars authorized.  We need not decide, therefore, what

leveling effect the war power of Congress might have.



These disclosures may have a serious impact.  But that is no basis for

sanctioning a previous restraint on [403 U.S. 723] the press.  As stated

by Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697, While

reckless assaults upon public men, and efforts to bring obloquy upon

those who are endeavoring faithfully to discharge official duties, exert

a baleful influence and deserve the severest condemnation in public

opinion, it cannot be said that this abuse is greater, and it is

believed to be less, than that which characterized the period in which

our institutions took shape.  Meanwhile, the administration of

government has become more complex, the opportunities for malfeasance

and corruption have multiplied, crime has grown to most serious

proportions, and the danger of its protection by unfaithful officials

and of the impairment of the fundamental security of life and property

by criminal alliances and official neglect, emphasizes the primary need

of a vigilant and courageous press, especially in great cities.  The

fact that the liberty of the press may be abused by miscreant purveyors

of scandal does not make any the less necessary the immunity of the

press from previous restraint in dealing with official misconduct.



As we stated only the other day in Organization for a Better Austin v.

Keefe, 402 U.S. 415, 419, "[a]ny prior restraint on expression comes to

this Court with a "heavy presumption" against its constitutional

validity."



The Government says that it has inherent powers to go into court and

obtain an injunction to protect the national interest, which, in this

case, is alleged to be national security.



Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in

no uncertain terms.



The dominant purpose of the First Amendment was to prohibit the

widespread practice of governmental suppression [403 U.S. 724] of

embarrassing information.  It is common knowledge that the First

Amendment was adopted against the widespread use of the common law of

seditious libel to punish the dissemination of material that is

embarrassing to the powers-that-be.  See T. Emerson, The System of

Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United

States, c. XIII (1941).  The present cases will, I think, go down in

history as the most dramatic illustration of that principle.  A debate

of large proportions goes on in the Nation over our posture in Vietnam. 

That debate antedated the disclosure of the contents of the present

documents.  The latter are highly relevant to the debate in progress.



Secrecy in government is fundamentally anti-democratic, perpetuating

bureaucratic errors.  Open debate and discussion of public issues are

vital to our national health.  On public questions, there should be

"uninhibited, robust, and wide-open" debate.  New York Times Co. v.

Sullivan, 376 U.S. 254,



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. BRENNAN, J., concurring



MR. JUSTICE BRENNAN, concurring. I



I write separately in these cases only to emphasize what should be

apparent:  that our judgments in the present cases may not be taken to

indicate the propriety, in the future, of issuing temporary stays and

restraining [403 U.S. 725] orders to block the publication of material

sought to be suppressed by the Government.  So far as I can determine,

never before has the United States sought to enjoin a newspaper from

publishing information in its possession.  The relative novelty of the

questions presented, the necessary haste with which decisions were

reached, the magnitude of the interests asserted, and the fact that all

the parties have concentrated their arguments upon the question whether

permanent restraints were proper may have justified at least some of the

restraints heretofore imposed in these cases.  Certainly it is difficult

to fault the several courts below for seeking to assure that the issues

here involved were preserved for ultimate review by this Court.  But

even if it be assumed that some of the interim restraints were proper in

the two cases before us, that assumption has no bearing upon the

propriety of similar judicial action in the future.  To begin with,

there has now been ample time for reflection and judgment; whatever

values there may be in the preservation of novel questions for appellate

review may not support any restraints in the future.  More important,

the First Amendment stands as an absolute bar to the imposition of

judicial restraints in circumstances of the kind presented by these

cases. II



The error that has pervaded these cases from the outset was the granting

of any injunctive relief whatsoever, interim or otherwise.  The entire

thrust of the Government's claim throughout these cases has been that

publication of the material sought to be enjoined "could," or "might,"

or "may" prejudice the national interest in various ways.  But the First

Amendment tolerates absolutely no prior judicial restraints of the press

predicated upon surmise or conjecture that untoward consequences [403

U.S. 726] may result.*  Our cases, it is true, have indicated that there

is a single, extremely narrow class of cases in which the First

Amendment's ban on prior judicial restraint may be overridden.  Our

cases have thus far indicated that such cases may arise only when the

Nation "is at war," Schenck v. United States, 249 U.S. 47, 52 (1919),

during which times [n]o one would question but that a government might

prevent actual obstruction to its recruiting service or the publication

of the sailing dates of transports or the number and location of troops.

Near v. Minnesota, 283 U.S. 697, 716 (1931).  Even if the present world

situation were assumed to be tantamount to a time of war, or if the

power of presently available armaments would justify even in peacetime

the suppression of information that would set in motion a nuclear

holocaust, in neither of these actions has the Government presented or

even alleged that publication of items from or based upon the material

at issue would cause the happening of an event of that nature.  "[T]he

chief purpose of [the First Amendment's] guaranty [is] to prevent

previous restraints upon publication."  Near v. Minnesota, supra, at

713.  Thus, only governmental allegation and proof that publication must

inevitably, directly, [403 U.S. 727] and immediately cause the

occurrence of an event kindred to imperiling the safety of a transport

already at sea can support even the issuance of an interim restraining

order.  In no event may mere conclusions be sufficient, for if the

Executive Branch seeks judicial aid in preventing publication, it must

inevitably submit the basis upon which that aid is sought to scrutiny by

the judiciary.  And, therefore, every restraint issued in this case,

whatever its form, has violated the First Amendment -- and not less so

because that restraint was justified as necessary to afford the courts

an opportunity to examine the claim more thoroughly.  Unless and until

the Government has clearly made out its case, the First Amendment

commands that no injunction may issue. STEWART, J., concurring



MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.



In the governmental structure created by our Constitution, the Executive

is endowed with enormous power in the two related areas of national

defense and international relations.  This power, largely unchecked by

the Legislative and Judicial 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 [403 U.S. 728] President of the United States

possesses vastly greater constitutional independence in these two vital

areas of power than does, say, a prime minister of a country with a

parliamentary form of government.



In the absence of the governmental checks and balances present in other

areas of our national life, the only effective restraint upon executive

policy and power in the areas of national defense and international

affairs may lie in an enlightened citizenry -- in an informed and

critical public opinion which alone can here protect the values of

democratic government.  For this reason, it is perhaps here that a press

that is alert, aware, and free most vitally serves the basic purpose of

the First Amendment.  For, without an informed and free press, there

cannot be an enlightened people.



Yet it is elementary that the successful conduct of international

diplomacy and the maintenance of an effective national defense require

both confidentiality and secrecy.  Other nations can hardly deal with

this Nation in an atmosphere of mutual trust unless they can be assured

that their confidences will be kept.  And, within our own executive

departments, the development of considered and intelligent international

policies would be impossible if those charged with their formulation

could not communicate with each other freely, frankly, and in

confidence.  In the area of basic national defense, the frequent need

for absolute secrecy is, of course, self-evident.



I think there can be but one answer to this dilemma, if dilemma it be. 

The responsibility must be where the power is.  If the Constitution

gives the Executive [403 U.S. 729] a large degree of unshared power in

the conduct of foreign affairs and the maintenance of our national

defense, then, under the Constitution, the Executive must have the

largely unshared duty to determine and preserve the degree of internal

security necessary to exercise that power successfully.  It is an

awesome responsibility, requiring judgment and wisdom of a high order. 

I should suppose that moral, political, and practical considerations

would dictate that a very first principle of that wisdom would be an

insistence upon avoiding secrecy for its own sake.  For when everything

is classified, then nothing is classified, and the system becomes one to

be disregarded by the cynical or the careless, and to be manipulated by

those intent on self-protection or self-promotion.  I should suppose, in

short, that the hallmark of a truly effective internal security system

would be the maximum possible disclosure, recognizing that secrecy can

best be preserved only when credibility is truly maintained.  But, be

that as it may, it is clear to me that it is the constitutional duty of

the Executive -- as a matter of sovereign prerogative, and not as a

matter of law as the courts know law -- through the promulgation and

enforcement of executive regulations, to protect [403 U.S. 730] the

confidentiality necessary to carry out its responsibilities in the

fields of international relations and national defense.



This is not to say that Congress and the courts have no role to play. 

Undoubtedly, Congress has the power to enact specific and appropriate

criminal laws to protect government property and preserve government

secrets.  Congress has passed such laws, and several of them are of very

colorable relevance to the apparent circumstances of these cases.  And

if a criminal prosecution is instituted, it will be the responsibility

of the courts to decide the applicability of the criminal law under

which the charge is brought.  Moreover, if Congress should pass a

specific law authorizing civil proceedings in this field, the courts

would likewise have the duty to decide the constitutionality of such a

law, as well as its applicability to the facts proved.



But in the cases before us, we are asked neither to construe specific

regulations nor to apply specific laws.  We are asked, instead, to

perform a function that the Constitution gave to the Executive, not the

Judiciary.  We are asked, quite simply, to prevent the publication by

two newspapers of material that the Executive Branch insists should not,

in the national interest, be published.  I am convinced that the

Executive is correct with respect to some of the documents involved. 

But I cannot say that disclosure of any of them will surely result in

direct, immediate, and irreparable damage to our Nation or its people. 

That being so, there can under the First Amendment be but one judicial

resolution of the issues before us.  I join the judgments of the Court.

WHITE, J., concurring



MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.



I concur in today's judgments, but only because of the concededly

extraordinary protection against prior restraints [403 U.S. 731] enjoyed

by the press under our constitutional system.  I do not say that in no

circumstances would the First Amendment permit an injunction against

publishing information about government plans or operations.  Nor, after

examining the materials the Government characterizes as the most

sensitive and destructive, can I deny that revelation of these documents

will do substantial damage to public interests.  Indeed, I am confident

that their disclosure will have that result.  But I nevertheless agree

that the United States has not satisfied the very heavy burden that it

must meet to warrant an injunction against publication in these cases,

at least in the absence of express and appropriately limited

congressional authorization for prior restraints in circumstances such

as these. [403 U.S. 732]



The Government's position is simply stated:  the responsibility of the

Executive for the conduct of the foreign affairs and for the security of

the Nation is so basic that the President is entitled to an injunction

against publication of a newspaper story whenever he can convince a

court that the information to be revealed threatens "grave and

irreparable" injury to the public interest; 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 [403 U.S. 733]

properly not discussed in today's opinions.  Moreover, because the

material poses substantial dangers to national interests, and because of

the hazards of criminal sanctions, a responsible press may choose never

to publish the more sensitive materials.  To sustain the Government in

these cases would start the courts down a long and hazardous road that I

am not willing to travel, at least without congressional guidance and

direction.



It is not easy to reject the proposition urged by the United States, and

to deny relief on its good faith claims in these cases that publication

will work serious damage to the country.  But that discomfiture is

considerably dispelled by the infrequency of prior-restraint cases. 

Normally, publication will occur and the damage be done before the

Government has either opportunity or grounds for suppression.  So here,

publication has already begun, and a substantial part of the threatened

damage has already occurred.  The fact of a massive breakdown in

security is known, access to the documents by many unauthorized people

is undeniable, and the efficacy of equitable relief against these or

other newspapers to avert anticipated damage is doubtful, at best.



What is more, terminating the ban on publication of the relatively few

sensitive documents the Government now seeks to suppress does not mean

that the law either requires or invites newspapers or others to publish

them, or that they will be immune from criminal action if they do. 

Prior restraints require an unusually heavy justification under the

First Amendment, but failure by the Government to justify prior

restraints does not measure its constitutional entitlement to a

conviction for criminal publication.  That the Government mistakenly

chose to proceed by injunction does not mean that it could not

successfully proceed in another way.



When the Espionage Act was under consideration in [403 U.S. 734] 1917,

Congress eliminated from the bill a provision that would have given the

President broad powers in time of war to proscribe, under threat of

criminal penalty, the publication of various categories of information

related to the national defense.  Congress at that time was unwilling to

clothe the President with such far-reaching powers to monitor the press,

and those opposed to this part of the legislation assumed that a

necessary concomitant of such power was the power to "filter out the

news to the people through some man."  55 Cong.Rec. 2008 (remarks of

Sen. Ashurst).  However, these same members of Congress appeared to have

little doubt that newspapers would be subject to criminal prosecution if

they insisted on publishing information of the type Congress had itself

determined should not be revealed.  Senator Ashurst, for example, was

quite sure that the editor of such a newspaper should be punished if he

did publish information as to the movements of the fleet, the troops,

the aircraft, the location of powder factories, the location of defense

works, and all that sort of thing. Id. at 2009. [403 U.S. 735]



The Criminal Code contains numerous provisions potentially relevant to

these cases.  Section 797 makes it a crime to publish certain

photographs or drawings of military installations.  Section 798, also in

precise language, proscribes knowing and willful publication of any

classified information concerning the cryptographic systems [403 U.S.

736] 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 [403 U.S. 737]

publish.  I would have no difficulty in sustaining convictions under

these sections on facts that would not justify the intervention of

equity and the imposition of a prior restraint.



The same would be true under those sections of the Criminal Code casting

a wider net to protect the national defense.  Section 793(e) makes it a

criminal act for any unauthorized possessor of a document "relating to

the national defense" either (1) willfully to communicate or cause to be

communicated that document to any person not entitled to receive it or

(2) willfully to retain the document and fail to deliver it to an

officer of the United States entitled to receive it.  The subsection was

added in 1950 because preexisting law provided no [403 U.S. 738] penalty

for the unauthorized possessor unless demand for the documents was made.

The dangers surrounding the unauthorized possession of such items are

self-evident, [403 U.S. 739] and it is deemed advisable to require their

surrender in such a case, regardless of demand, especially since their

unauthorized possession may be unknown to the authorities who would

otherwise make the demand. S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess.,

9 (1950).  Of course, in the cases before us, the unpublished documents

have been demanded by the United States, and their import has been made

known at least to counsel for the newspapers involved.  In Gorin v.

United States, 312 U.S. 19, 28 (1941), the words "national defense" as

used in a predecessor of  793 were held by a unanimous Court to have "a

well understood connotation" -- a "generic concept of broad

connotations, referring to the military and naval establishments and the

related activities of national preparedness" -- and to be "sufficiently

definite to apprise the public of prohibited activities" [403 U.S. 740]

and to be consonant with due process.  312 U.S. at 28.  Also, as

construed by the Court in Gorin, information "connected with the

national defense" is obviously not limited to that threatening "grave

and irreparable" injury to the United States.{10}



It is thus clear that Congress has addressed itself to the problems of

protecting the security of the country and the national defense from

unauthorized disclosure of potentially damaging information.  Cf.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, (1952); see also

id. at (Frankfurter, J., concurring).  It has not, however, authorized

the injunctive remedy against threatened publication.  It has apparently

been satisfied to rely on criminal sanctions and their deterrent effect

on the responsible, as well as the irresponsible, press.  I am not, of

course, saying that either of these newspapers has yet committed a

crime, or that either would commit a crime if it published all the

material now in its possession.  That matter must await resolution in

the context of a criminal proceeding if one is instituted by the United

States.  In that event, the issue of guilt or innocence would be

determined by procedures and standards quite different from those that

have purported to govern these injunctive proceedings. MARSHALL, J.,

concurring



MR. JUSTICE MARSHALL, concurring.



The Government contends that the only issue in these cases is whether,

in a suit by the United States, "the First Amendment bars a court from

prohibiting a newspaper [403 U.S. 741] from publishing material whose

disclosure would pose a 'grave and immediate danger to the security of

the United States.' " Brief for the United States 7. With all due

respect, I believe the ultimate issue in these cases is even more basic

than the one posed by the Solicitor General. The issue is whether this

Court or the Congress has the power to make law.



In these cases, there is no problem concerning the President's power to

classify information as "secret" or "top secret."  Congress has

specifically recognized Presidential authority, which has been formally

exercised in Exec.Order 10501 (1953), to classify documents and

information.  See, e.g., 18 U.S.C.  798; 50 U.S.C.  783.  Nor is there

any issue here regarding the President's power as Chief Executive and

Commander in Chief to protect national security by disciplining

employees who disclose information and by taking precautions to prevent

leaks.



The problem here is whether, in these particular cases, the Executive

Branch has authority to invoke the equity jurisdiction of the courts to

protect what it believes to be the national interest.   See In re Debs,

158 U.S. 564, 584 (1895).  The Government argues that, in addition to

the inherent power of any government to protect itself, the President's

power to conduct foreign affairs and his position as Commander in Chief

give him authority to impose censorship on the press to protect his

ability to deal effectively with foreign nations and to conduct the

military affairs of the country.  Of course, it is beyond cavil that the

President has broad powers by virtue of his primary responsibility for

the conduct of our foreign affairs and his position as Commander in

Chief.  Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S.

103 (1948); Hirabayashi v. United States, 320 U.S. 81, 93 (1943); United

States v. Curtiss [403 U.S. 742] Wright Corp., 299 U.S. 304 (1936). 

And, in some situations, it may be that, under whatever inherent powers

the Government may have, as well as the implicit authority derived from

the President's mandate to conduct foreign affairs and to act as

Commander in Chief, there is a basis for the invocation of the equity

jurisdiction of this Court as an aid to prevent the publication of

material damaging to "national security," however that term may be

defined.



It would, however, be utterly inconsistent with the concept of

separation of powers for this Court to use its power of contempt to

prevent behavior that Congress has specifically declined to prohibit. 

There would be a similar damage to the basic concept of these co-equal

branches of Government if, when the Executive Branch has adequate

authority granted by Congress to protect "national security," it can

choose, instead, to invoke the contempt power of a court to enjoin the

threatened conduct.  The Constitution provides that Congress shall make

laws, the President execute laws, and courts interpret laws.  Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).  It did not provide for

government by injunction in which the courts and the Executive Branch

can "make law" without regard to the action of Congress.  It may be more

convenient for the Executive Branch if it need only convince a judge to

prohibit conduct, rather than ask the Congress to pass a law, and it may

be more convenient to enforce a contempt order than to seek a criminal

conviction in a jury trial.  Moreover, it may be considered politically

wise to get a court to share the responsibility for arresting those who

the Executive Branch has probable cause to believe are violating the

law.  But convenience and political considerations of the [403 U.S. 743]

moment do not justify a basic departure from the principles of our

system of government.



In these cases, we are not faced with a situation where Congress has

failed to provide the Executive with broad power to protect the Nation

from disclosure of damaging state secrets.  Congress has, on several

occasions, given extensive consideration to the problem of protecting

the military and strategic secrets of the United States.  This

consideration has resulted in the enactment of statutes making it a

crime to receive, disclose, communicate, withhold, and publish certain

documents, photographs, instruments, appliances, and information.  The

bulk of these statutes is found in chapter 37 of U.S.C. Title 18,

entitled Espionage and Censorship.  In that chapter, [403 U.S. 744]

Congress has provided penalties ranging from a $10,000 fine to death for

violating the various statutes.



Thus, it would seem that in order for this Court to issue an injunction

it would require a showing that such an injunction would enhance the

already exiting power of the Government to act.  See Bennett v. Laman,

277 N.Y. 368, 14 N.E.2d 439 (1938).  It is a traditional axiom of equity

that a court of equity will not do a useless thing, just as it is a

traditional axiom that equity will not enjoin the commission of a crime.

 See Z. Chafee & E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce,

Injunctions  580a (1909).  Here, there has been no attempt to make such

a showing.  The Solicitor General does not even mention in his brief

whether the Government considers that there is probable cause to believe

a crime has been committed, or whether there is a conspiracy to commit

future crimes.



If the Government had attempted to show that there was no effective

remedy under traditional criminal law, it would have had to show that

there is no arguably applicable statute.  Of course, at this stage, this

Court could not and cannot determine whether there has been a violation

of a particular statute or decide the constitutionality of any statute. 

Whether a good faith prosecution could have been instituted under any

statute could, however, be determined. [403 U.S. 745]



At least one of the many statutes in this area seems relevant to these

cases.  Congress has provided in 18 U.S.C.  793(e) that whoever, having

unauthorized possession of, access to, or control over any document,

writing, code book, signal book . . . or note relating to the national

defense, or information relating to the national defense which

information the possessor has reason to believe could be used to the

injury of the United States or to the advantage of any foreign nation,

willfully communicates, delivers, transmits . . . the same to any person

not entitled to receive it, or willfully retains the same and fails to

deliver it to the officer or employee of the United States entitled to

receive it . . . [s]hall be fined not more than $10,000 or imprisoned

not more than ten years, or both. Congress has also made it a crime to

conspire to commit any of the offenses listed in 18 U.S.C.  793(e).



It is true that Judge Gurfein found that Congress had not made it a

crime to publish the items and material specified in  793(e).  He found

that the words "communicates, delivers, transmits . . ." did not refer

to publication of newspaper stories.  And that view has some support in

the legislative history, and conforms with the past practice of using

the statute only to prosecute those charged with ordinary espionage. 

But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey).  Judge Gurfein's

view of the statute is not, however, the only plausible construction

that could be given.  See my Brother WHITE's concurring opinion.



Even if it is determined that the Government could not in good faith

bring criminal prosecutions against the New York Times and the

Washington Post, it is clear that Congress has specifically rejected

passing legislation that would have clearly given the President the

power he seeks here and made the current activity of the newspapers

unlawful.  When Congress specifically declines to make conduct unlawful,

it is not for this Court [403 U.S. 746] to redecide those issues -- to

overrule Congress.  See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952).



On at least two occasions, Congress has refused to enact legislation

that would have made the conduct engaged in here unlawful and given the

President the power that he seeks in this case.  In 1917, during the

debate over the original Espionage Act, still the basic provisions of 

793, Congress rejected a proposal to give the President in time of war

or threat of war authority to directly prohibit by proclamation the

publication of information relating to national defense that might be

useful to the enemy.  The proposal provided that:



During any national emergency resulting from a war to which the United

States is a party, or from threat of such a war, the President may, by

proclamation, declare the existence of such emergency and, by

proclamation, prohibit the publishing or communicating of, or the

attempting to publish or communicate any information relating to the

national defense which, in his judgment, is of such character that it is

or might be useful to the enemy.  Whoever violates any such prohibition

shall be punished by a fine of not more than $10,000 or by imprisonment

for not more than 10 years, or both:  Provided, That nothing in this

section shall be construed to limit or restrict any discussion, comment,

or criticism of the acts or policies of the Government or its

representatives or the publication of the same. 55 Cong.Rec. 1763. 

Congress rejected this proposal after war against Germany had been

declared, even though many believed that there was a grave national

emergency and that the threat of security leaks and espionage was

serious.  The Executive Branch has not gone to Congress and requested

that the decision to provide such power be reconsidered.  Instead, [403

U.S. 747] the Executive Branch comes to this Court and asks that it be

granted the power Congress refused to give.



In 1957, the United States Commission on Government Security found that

[a]irplane journals, scientific periodicals, and even the daily

newspaper have featured articles containing information and other data

which should have been deleted in whole or in part for security reasons.

In response to this problem, the Commission proposed that Congress enact

legislation making it a crime for any person willfully to disclose

without proper authorization, for any purpose whatever, information

classified "secret" or "top secret," knowing, or having reasonable

grounds to believe, such information to have been so classified. Report

of Commission on Government Security 619-620 (1957).  After substantial

floor discussion on the proposal, it was rejected.   See 103 Cong.Rec.

10447-10450.  If the proposal that Sen. Cotton championed on the floor

had been enacted, the publication of the documents involved here would

certainly have been a crime.  Congress refused, however, to make it a

crime.  The Government is here asking this Court to remake that

decision.  This Court has no such power.



Either the Government has the power under statutory grant to use

traditional criminal law to protect the country or, if there is no basis

for arguing that Congress has made the activity a crime, it is plain

that Congress has specifically refused to grant the authority the

Government seeks from this Court.  In either case, this Court does not

have authority to grant the requested relief.  It is not for this Court

to fling itself into every breach perceived by some Government official,

nor is it for this Court to take on itself the burden of enacting law,

especially a law that Congress has refused to pass.



I believe that the judgment of the United States Court of Appeals for

the District of Columbia Circuit should [403 U.S. 748] be affirmed and

the judgment of the United States Court of Appeals for the Second

Circuit should be reversed insofar as it remands the case for further

hearings. BURGER, J., dissenting



MR. CHIEF JUSTICE BURGER, dissenting.



So clear are the constitutional limitations on prior restraint against

expression that, from the time of Near v. Minnesota, 283 U.S. 697

(1931), until recently in Organization for a Better Austin v. Keefe, 402

U.S. 415 (1971), we have had little occasion to be concerned with cases

involving prior restraints against news reporting on matters of public

interest.  There is, therefore, little variation among the members of

the Court in terms of resistance to prior restraints against

publication.  Adherence to this basic constitutional principle, however,

does not make these cases simple.  In these cases, the imperative of a

free and unfettered press comes into collision with another imperative,

the effective functioning of a complex modern government, and,

specifically, the effective exercise of certain constitutional powers of

the Executive.  Only those who view the First Amendment as an absolute

in all circumstances -- a view I respect, but reject -- can find such

cases as these to be simple or easy.



These cases are not simple for another and more immediate reason.  We do

not know the facts of the cases.  No District Judge knew all the facts. 

No Court of Appeals judge knew all the facts.  No member of this Court

knows all the facts.



Why are we in this posture, in which only those judges to whom the First

Amendment is absolute and permits of no restraint in any circumstances

or for any reason, are really in a position to act?



I suggest we are in this posture because these cases have been conducted

in unseemly haste.  MR. JUSTICE HARLAN covers the chronology of events

demonstrating the hectic pressures under which these cases have been

processed, and I need not restate them.  The prompt [403 U.S. 749]

setting of these cases reflects our universal abhorrence of prior

restraint.  But prompt judicial action does not mean unjudicial haste.



Here, moreover, the frenetic haste is due in large part to the manner in

which the Times proceeded from the date it obtained the purloined

documents.  It seems reasonably clear now that the haste precluded

reasonable and deliberate judicial treatment of these cases, and was not

warranted.  The precipitate action of this Court aborting trials not yet

completed is not the kind of judicial conduct that ought to attend the

disposition of a great issue.



The newspapers make a derivative claim under the First Amendment; they

denominate this right as the public "right to know"; by implication, the

Times asserts a sole trusteeship of that right by virtue of its

journalistic "scoop."  The right is asserted as an absolute.  Of course,

the First Amendment right itself is not an absolute, as Justice Holmes

so long ago pointed out in his aphorism concerning the right to shout

"fire" in a crowded theater if there was no fire.  There are other

exceptions, some of which Chief Justice Hughes mentioned by way of

example in Near v. Minnesota.  There are no doubt other exceptions no

one has had occasion to describe or discuss.  Conceivably, such

exceptions may be lurking in these cases and, would have been flushed

had they been properly considered in the trial courts, free from

unwarranted deadlines and frenetic pressures.  An issue of this

importance should be tried and heard in a judicial atmosphere conducive

to thoughtful, reflective deliberation, especially when haste, in terms

of hours, is unwarranted in light of the long period the Times, by its

own choice, deferred publication. [403 U.S. 750]



It is not disputed that the Times has had unauthorized possession of the

documents for three to four months, during which it has had its expert

analysts studying them, presumably digesting them and preparing the

material for publication.  During all of this time, the Times,

presumably in its capacity as trustee of the public's "right to know,"

has held up publication for purposes it considered proper, and thus

public knowledge was delayed.  No doubt this was for a good reason; the

analysis of 7,000 pages of complex material drawn from a vastly greater

volume of material would inevitably take time, and the writing of good

news stories takes time.  But why should the United States Government,

from whom this information was illegally acquired by someone, along with

all the counsel, trial judges, and appellate judges be placed under

needless pressure?  After these months of deferral, the alleged "right

to know" has somehow and suddenly become a right that must be vindicated

instanter.



Would it have been unreasonable, since the newspaper could anticipate

the Government's objections to release of secret material, to give the

Government an opportunity to review the entire collection and determine

whether agreement could be reached on publication?  Stolen or not, if

security was not, in fact, jeopardized, much of the material could no

doubt have been declassified, since it spans a period ending in 1968. 

With such an approach -- one that great newspapers have in the past

practiced and stated editorially to be the duty of an honorable press --

the newspapers and Government might well have narrowed [403 U.S. 751]

the area of disagreement as to what was and was not publishable, leaving

the remainder to be resolved in orderly litigation, if necessary.  To

me, it is hardly believable that a newspaper long regarded as a great

institution in American life would fail to perform one of the basic and

simple duties of every citizen with respect to the discovery or

possession of stolen property or secret government documents.  That

duty, I had thought -- perhaps naively -- was to report forthwith, to

responsible public officers.  This duty rests on taxi drivers, Justices,

and the New York Times.  The course followed by the Times, whether so

calculated or not, removed any possibility of orderly litigation of the

issue.  If the action of the judges up to now has been correct, that

result is sheer happenstance.



Our grant of the writ of certiorari before final judgment in the Times

case aborted the trial in the District Court before it had made a

complete record pursuant to the mandate of the Court of Appeals for the

Second Circuit.



The consequence of all this melancholy series of events is that we

literally do not know what we are acting on.  As I see it, we have been

forced to deal with litigation concerning rights of great magnitude

without an adequate record, and surely without time for adequate

treatment either in the prior proceedings or in this Court.  It is

interesting to note that counsel on both sides, in oral argument before

this Court, were frequently unable to respond to questions on factual

points.  Not surprisingly, they pointed out that they had been working

literally "around the clock," and simply were unable to review the

documents that give rise to these cases and [403 U.S. 752] were not

familiar with them.  This Court is in no better posture.  I agree

generally with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN, but I am not

prepared to reach the merits.



I would affirm the Court of Appeals for the Second Circuit and allow the

District Court to complete the trial aborted by our grant of certiorari,

meanwhile preserving the status quo in the Post case.  I would direct

that the District Court, on remand, give priority to the Times case to

the exclusion of all other business of that court, but I would not set

arbitrary deadlines.



I should add that I am in general agreement with much of what MR.

JUSTICE WHITE has expressed with respect to penal sanctions concerning

communication or retention of documents or information relating to the

national defense.



We all crave speedier judicial processes, but, when judges are

pressured, as in these cases, the result is a parody of the judicial

function. HARLAN, J., dissenting



MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN

join, dissenting.



These cases forcefully call to mind the wise admonition of Mr. Justice

Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S.

197, (1904):



Great cases, like hard cases, make bad law.  For great cases are called

great not by reason of their [403 U.S. 753] real importance in shaping

the law of the future, but because of some accident of immediate

overwhelming interest which appeals to the feelings and distorts the

judgment.  These immediate interests exercise a kind of hydraulic

pressure which makes what previously was clear seem doubtful, and before

which even well settled principles of law will bend. With all respect, I

consider that the Court has been almost irresponsibly feverish in

dealing with these cases.



Both the Court of Appeals for the Second Circuit and the Court of

Appeals for the District of Columbia Circuit rendered judgment on June

23.  The New York Times' petition for certiorari, its motion for

accelerated consideration thereof, and its application for interim

relief were filed in this Court on June 24 at about 11 a.m.  The

application of the United States for interim relief in the Post case was

also filed here on June 24 at about 7:15 p.m.  This Court's order

setting a hearing before us on June 26 at 11 a.m., a course which I

joined only to avoid the possibility of even more peremptory action by

the Court, was issued less than 24 hours before.  The record in the Post

case was filed with the Clerk shortly before 1 p.m. on June 25; the

record in the Times case did not arrive until 7 or 8 o'clock that same

night.  The briefs of the parties were received less than two hours

before argument on June 26.



This frenzied train of events took place in the name of the presumption

against prior restraints created by the First Amendment.  Due regard for

the extraordinarily important and difficult questions involved in these

litigations should have led the Court to shun such a precipitate

timetable.  In order to decide the merits of these cases properly, some

or all of the following questions should have been faced:



1. Whether the Attorney General is authorized to bring these suits in

the name of the United States.  Compare [403 U.S. 754] In re Debs, 158

U.S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952).  This question involves as well the construction and

validity of a singularly opaque statute -- the Espionage Act, 18 U.S.C. 

793(e).



2. Whether the First Amendment permits the federal courts to enjoin

publication of stories which would present a serious threat to national

security.  See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum).



3. Whether the threat to publish highly secret documents is of itself a

sufficient implication of national security to justify an injunction on

the theory that, regardless of the contents of the documents, harm

enough results simply from the demonstration of such a breach of

secrecy.



4. Whether the unauthorized disclosure of any of these particular

documents would seriously impair the national security.



5. What weight should be given to the opinion of high officers in the

Executive Branch of the Government with respect to questions 3 and 4.



6. Whether the newspapers are entitled to retain and use the documents

notwithstanding the seemingly uncontested facts that the documents, or

the originals of which they are duplicates, were purloined from the

Government's possession, and that the newspapers received them with

knowledge that they had been feloniously acquired.  Cf. Liberty Lobby,

Inc. v. Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).



7. Whether the threatened harm to the national security or the

Government's possessory interest in the documents justifies the issuance

of an injunction against publication in light of --



a. The strong First Amendment policy against prior restraints on

publication; [403 U.S. 755]



b. The doctrine against enjoining conduct in violation of criminal

statutes; and



c. The extent to which the materials at issue have apparently already

been otherwise disseminated.



These are difficult questions of fact, of law, and of judgment; the

potential consequences of erroneous decision are enormous.  The time

which has been available to us, to the lower courts, and to the parties

has been wholly inadequate for giving these cases the kind of

consideration they deserve.  It is a reflection on the stability of the

judicial process that these great issues -- as important as any that

have arisen during my time on the Court -- should have been decided

under the pressures engendered by the torrent of publicity that has

attended these litigations from their inception.



Forced as I am to reach the merits of these cases, I dissent from the

opinion and judgments of the Court.  Within the severe limitations

imposed by the time constraints under which I have been required to

operate, I can only state my reasons in telescoped form, even though, in

different circumstances, I would have felt constrained to deal with the

cases in the fuller sweep indicated above.



It is a sufficient basis for affirming the Court of Appeals for the

Second Circuit in the Times litigation to observe that its order must

rest on the conclusion that, because of the time elements the Government

had not been given an adequate opportunity to present its case [403 U.S.

756] to the District Court.  At the least this conclusion was not an

abuse of discretion.



In the Post litigation, the Government had more time to prepare; this

was apparently the basis for the refusal of the Court of Appeals for the

District of Columbia Circuit on rehearing to conform its judgment to

that of the Second Circuit.  But I think there is another and more

fundamental reason why this judgment cannot stand -- a reason which also

furnishes an additional ground for not reinstating the judgment of the

District Court in the Times litigation, set aside by the Court of

Appeals.  It is plain to me that the scope of the judicial function in

passing upon the activities of the Executive Branch of the Government in

the field of foreign affairs is very narrowly restricted.  This view is,

I think, dictated by the concept of separation of powers upon which our

constitutional system rests.



In a speech on the floor of the House of Representatives, Chief Justice

John Marshall, then a member of that body, stated:



The President is the sole organ of the nation in its external relations,

and its sole representative with foreign nations. 10 Annals of Cong. 613

(1800).  From that time, shortly after the founding of the Nation, to

this, there has been no substantial challenge to this description of the

scope of executive power.  See United States v. Curtiss-Wright Corp.,

299 U.S. 304, (1936), collecting authorities.



From this constitutional primacy in the field of foreign affairs, it

seems to me that certain conclusions necessarily follow.  Some of these

were stated concisely by President Washington, declining the request of

the House of Representatives for the papers leading up to the

negotiation of the Jay Treaty:



The nature of foreign negotiations requires caution, and their success

must often depend on secrecy; [403 U.S. 757] and even when brought to a

conclusion, a full disclosure of all the measures, demands, or eventual

concessions which may have been proposed or contemplated would be

extremely impolitic; for this might have a pernicious influence on

future negotiations, or produce immediate inconveniences, perhaps danger

and mischief, in relation to other powers. 1 J. Richardson, Messages and

Papers of the Presidents 194-195 (1896).



The power to evaluate the "pernicious influence" of premature disclosure

is not, however, lodged in the Executive alone.  I agree that, in

performance of its duty to protect the values of the First Amendment

against political pressures, the judiciary must review the initial

Executive determination to the point of satisfying itself that the

subject matter of the dispute does lie within the proper compass of the

President's foreign relations power.  Constitutional considerations

forbid "a complete abandonment of judicial control."  Cf. United States

v. Reynolds, 345 U.S. 1, 8 (1953).  Moreover, the judiciary may properly

insist that the determination that disclosure of the subject matter

would irreparably impair the national security be made by the head of

the Executive Department concerned -- here, the Secretary of State or

the Secretary of Defense -- after actual personal  consideration by that

officer.  This safeguard is required in the analogous area of executive

claims of privilege for secrets of state.  See id. at 8 and n. 20;

Duncan v. Cammell, Laird  Co., [1942] A.C. 624, 638 (House of Lords).



But, in my judgment, the judiciary may not properly go beyond these two

inquiries and redetermine for itself the probable impact of disclosure

on the national security. [T]he very nature of executive decisions as to

foreign policy is political, not judicial.  Such decisions [403 U.S.

758] are wholly confided by our Constitution to the political

departments of the government, Executive and Legislative.  They are

delicate, complex, and involve large elements of prophecy.  They are and

should be undertaken only by those directly responsible to the people

whose welfare they advance or imperil.  They are decisions of a kind for

which the Judiciary has neither aptitude, facilities nor responsibility,

and which has long been held to belong in the domain of political power

not subject to judicial intrusion or inquiry. Chicago & Southern Air

Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (Jackson,

J.).



Even if there is some room for the judiciary to override the executive

determination, it is plain that the scope of review must be exceedingly

narrow.  I can see no indication in the opinions of either the District

Court or the Court of Appeals in the Post litigation that the

conclusions of the Executive were given even the deference owing to an

administrative agency, much less that owing to a co-equal branch of the

Government operating within the field of its constitutional prerogative.



Accordingly, I would vacate the judgment of the Court of Appeals for the

District of Columbia Circuit on this ground, and remand the case for

further proceedings in the District Court.  Before the commencement of

such further proceedings, due opportunity should be afforded the

Government for procuring from the Secretary of State or the Secretary of

Defense or both an expression of their views on the issue of national

security.  The ensuing review by the District Court should be in

accordance with the views expressed in this opinion.  And, for the

reasons stated above, I would affirm the judgment of the Court of

Appeals for the Second Circuit.



Pending further hearings in each case conducted under the appropriate

ground rules, I would continue the [403 U.S. 759] restraints on

publication.  I cannot believe that the doctrine prohibiting prior

restraints reaches to the point of preventing courts from maintaining

the status quo long enough to act responsibly in matters of such

national importance as those involved here. BLACKMUN, J., dissenting



MR. JUSTICE BLACKMUN, dissenting.



I join MR. JUSTICE HARLAN in his dissent.  I also am in substantial

accord with much that MR. JUSTICE WHITE says, by way of admonition, in

the latter part of his opinion.



At this point, the focus is on only the comparatively few documents

specified by the Government as critical.  So far as the other material

-- vast in amount -- is concerned, let it be published and published

forthwith if the newspapers, once the strain is gone and the

sensationalism is eased, still feel the urge so to do.



But we are concerned here with the few documents specified from the 47

volumes.  Almost 70 years ago, Mr. Justice Holmes, dissenting in a

celebrated case, observed:



Great cases, like hard cases, make bad law.  For great cases are called

great not by reason of their real importance in shaping the law of the

future, but because of some accident of immediate overwhelming interest

which appeals to the feelings and distorts the judgment.  These

immediate interests exercise a kind of hydraulic pressure. . . . Northen

Securities Co. v. United States, 193 U.S. 197, (1904).  The present

cases, if not great, are at least unusual in their posture and

implications, and the Holmes observation certainly has pertinent

application.



The New York Times clandestinely devoted a period of three months to

examining the 47 volumes that came into its unauthorized possession. 

Once it had begun publication [403 U.S. 760] of material from those

volumes, the New York case now before us emerged.  It immediately

assumed, and ever since has maintained, a frenetic pace and character. 

Seemingly, once publication started, the material could not be made

public fast enough.  Seemingly, from then on, every deferral or delay,

by restraint or otherwise, was abhorrent, and was to be deemed violative

of the First Amendment and of the public's "right immediately to know." 

Yet that newspaper stood before us at oral argument and professed

criticism of the Government for not lodging its protest earlier than by

a Monday telegram following the initial Sunday publication.



The District of Columbia case is much the same.



Two federal district courts, two United States courts of appeals, and

this Court -- within a period of less than three weeks from inception

until today -- have been pressed into hurried decision of profound

constitutional issues on inadequately developed and largely assumed

facts without the careful deliberation that, one would hope, should

characterize the American judicial process.  There has been much writing

about the law and little knowledge and less digestion of the facts.  In

the New York case, the judges, both trial and appellate, had not yet

examined the basic material when the case was brought here.  In the

District of Columbia case, little more was done, and what was

accomplished in this respect was only on required remand, with the

Washington Post, on the excuse that it was trying to protect its source

of information, initially refusing to reveal what material it actually

possessed, and with the District Court forced to make assumptions as to

that possession.



With such respect as may be due to the contrary view, this, in my

opinion, is not the way to try a lawsuit of this magnitude and asserted

importance.  It is not the way for federal courts to adjudicate, and to

be required to adjudicate, issues that allegedly concern the Nation's

[403 U.S. 761] vital welfare.  The country would be none the worse off

were the cases tried quickly, to be sure, but in the customary and

properly deliberative manner.  The most recent of the material, it is

said, dates no later than 1968, already about three years ago, and the

Times itself took three months to formulate its plan of procedure and,

thus, deprived its public for that period.



The First Amendment, after all, is only one part of an entire

Constitution.  Article II of the great document vests in the Executive

Branch primary power over the conduct of foreign affairs, and places in

that branch the responsibility for the Nation's safety.  Each provision

of the Constitution is important, and I cannot subscribe to a doctrine

of unlimited absolutism for the First Amendment at the cost of

downgrading other provisions.  First Amendment absolutism has never

commanded a majority of this Court.  See, for example, Near v.

Minnesota, 283 U.S. 697, 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 newspapers concede that there are

situations where restraint is in order and is constitutional.  Mr.

Justice Holmes gave us a suggestion when he said in Schenck, It is a

question of proximity and degree.  When a nation is at war, many things

that might be said in time of peace are such a hindrance to its effort

that their utterance will not be endured so long as men fight and that

no Court could regard them as protected by any constitutional right. 249

U.S. at 52.



I therefore would remand these cases to be developed expeditiously, of

course, but on a schedule permitting the [403 U.S. 762] orderly

presentation of evidence from both sides, with the use of discovery, if

necessary, as authorized by the rules, and with the preparation of

briefs, oral argument, and court opinions of a quality better than has

been seen to this point.  In making this last statement, I criticize no

lawyer or judge.  I know from past personal experience the agony of time

pressure in the preparation of litigation.  But these cases and the

issues involved and the courts, including this one, deserve better than

has been produced thus far.



It may well be that, if these cases were allowed to develop as they

should be developed, and to be tried as lawyers should try them and as

courts should hear them, free of pressure and panic and sensationalism,

other light would be shed on the situation, and contrary considerations,

for me, might prevail.  But that is not the present posture of the

litigation.



The Court, however, decides the cases today the other way.  I therefore

add one final comment.



I strongly urge, and sincerely hope, that these two newspapers will be

fully aware of their ultimate responsibilities to the United States of

America.  Judge Wilkey, dissenting in the District of Columbia case,

after a review of only the affidavits before his court (the basic papers

had not then been made available by either party), concluded that there

were a number of examples of documents that, if in the possession of the

Post and if published, "could clearly result in great harm to the

nation," and he defined "harm" to mean the death of soldiers, the

destruction of alliances, the greatly increased difficulty of

negotiation with our enemies, the inability of our diplomats to

negotiate. . . . I, for one, have now been able to give at least some

cursory study not only to the affidavits, but to the material itself.  I

regret to say that, from this examination, I fear that Judge Wilkey's

statements have possible foundation.  I therefore share [403 U.S. 763]

his concern.  I hope that damage has not already been done.  If,

however, damage has been done, and if, with the Court's action today,

these newspapers proceed to publish the critical documents and there

results therefrom the death of soldiers, the destruction of alliances,

the greatly increased difficulty of negotiation with our enemies, the

inability of our diplomats to negotiate, to which list I might add the

factors of prolongation of the war and of further delay in the freeing

of United States prisoners, then the Nation's people will know where the

responsibility for these sad consequences rests. Footnotes BLACK, J.,

concurring (Footnotes)



* 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.



1. In introducing the Bill of Rights in the House of Representatives,

Madison said: [B]ut I believe that the great mass of the people who

opposed [the Constitution] disliked it because it did not contain

effectual provisions against the encroachments on particular rights. . .

. 1 Annals of Cong. 433.  Congressman Goodhue added: [I]t is the wish of

many of our constituents that something should be added to the

Constitution to secure in a stronger manner their liberties from the

inroads of power. Id. at 426.



2. The other parts were:



The civil rights of none shall be abridged on account of religious

belief or worship, nor shall any national religion be established, nor

shall the full and equal rights of conscience be in any manner, or on

any pretext, infringed.



The people shall not be restrained from peaceably assembling and

consulting for their common good, nor from applying to the Legislature

by petitions, or remonstrances, for redress of their grievances. 1

Annals of Cong. 434.



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 Constitution,

independent tribunals of justice will consider themselves in a peculiar

manner the guardians of those rights; they will be an impenetrable

bulwark against every assumption of power in the Legislative or

Executive; they will be naturally led to resist every encroachment upon

rights expressly stipulated for in the Constitution by the declaration

of rights. 1 Annals of Cong. 439.



6. De Jonge v. Oregon, 299 U.S. 353, 365. DOUGLAS, J., concurring

(Footnotes)



1. See Beauharnais v. Illinois, 343 U.S. 250, 267 (dissenting opinion of

MR. JUSTICE BLACK), 284 (my dissenting opinion); Roth v. United States,

354 U.S. 476, 508 (my dissenting opinion which MR. JUSTICE BLACK

joined); Yates v. United States, 354 U.S. 298, 339 (separate opinion of

MR. JUSTICE BLACK which 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).



2. These documents contain data concerning the communications system of

the United States, the publication of which is made a crime.  But the

criminal sanction is not urged by the United States as the basis of

equity power.



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. BRENNAN, J.,

concurring (Footnotes)



* 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. STEWART, J., concurring (Footnotes)



1. The President's power to make treaties and to appoint ambassadors is,

of course, limited by the requirement of Art. II,  2, of the

Constitution that he obtain the advice and consent of the Senate. 

Article I,  8, empowers Congress to "raise and support Armies," and

"provide and maintain a Navy."  And, of course, Congress alone can

declare war.  This power was last exercised almost 30 years ago at the

inception of World War II.  Since the end of that war in 1945, the Armed

Forces of the United States have suffered approximately half a million

casualties in various parts of the world.



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.



3. It is quite apparent that, if, in the maintenance of our

international relations, embarrassment -- perhaps serious embarrassment

-- is to be avoided and success for our aims achieved, congressional

legislation which is to be made effective through negotiation and

inquiry within the international field must often accord to the

President a degree of discretion and freedom from statutory restriction

which would not be admissible were domestic affairs alone involved. 

Moreover, he, not Congress, has the better opportunity of knowing the

conditions which prevail in foreign countries, and especially is this

true in time of war.  He has his confidential sources of information. 

He has his agents in the form of diplomatic, consular and other

officials.  Secrecy in respect of information gathered by them may be

highly necessary, and the premature disclosure of it productive of

harmful results.  Indeed, so clearly is this true that the first

President refused to accede to a request to lay before the House of

Representatives the instructions, correspondence and documents relating

to the negotiation of the Jay Treaty -- a refusal the wisdom of which

was recognized by the House itself, and has never since been doubted. .

. . United States v. Curtiss-Wright Corp., 299 U.S. 304, 320. WHITE, J.,

concurring (Footnotes)



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, (1969).  Article I,

 8, of the Constitution authorizes Congress to secure the "exclusive

right" of authors to their writings, and no one denies that a newspaper

can properly be enjoined from publishing the copyrighted works of

another.  See Westermann Co. v. Dispatch Co., 249 U.S. 100 (1919). 

Newspapers do themselves rely from time to time on the copyright as a

means of protecting their accounts of important events.  However, those

enjoined under the statutes relating to the National Labor Relations

Board and the Federal Trade Commission are private parties, not the

press, and, when the press is enjoined under the copyright laws, the

complainant is a private copyright holder enforcing a private right. 

These situations are quite distinct from the Government's request for an

injunction against publishing information about the affairs of

government, a request admittedly not based on any statute.



2. The "grave and irreparable danger" standard is that asserted by the

Government in this Court.  In remanding to Judge Gurfein for further

hearings in the Times litigation, five members of the Court of Appeals

for the Second Circuit directed him to determine whether disclosure of

certain items specified with particularity by the Government would "pose

such grave and immediate danger to the security of the United States as

to warrant their publication being enjoined."



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.



4. Senator Ashurst also urged that "freedom of the press" means freedom

from the restraints of a censor, means the absolute liberty and right to

publish whatever you wish; but you take your chances of punishment in

the courts of your country for the violation of the laws of libel,

slander, and treason. 55 Cong.Rec. 2005.



5. Title 18 U.S.C.  797 provides:



On and after thirty days from the date upon which the President defines

any vital military or naval installation or equipment as being within

the category contemplated under section 795 of this title, whoever

reproduces, publishes, sells, or gives away any photograph, sketch,

picture, drawing, map, or graphical representation of the vital military

or naval installations or equipment so defined, without first obtaining

permission of the commanding officer of the military or naval post,

camp, or station concerned, or higher authority, unless such photograph,

sketch, picture, drawing, map, or graphical representation has clearly

indicated thereon that it has been censored by the proper military or

naval authority, shall be fined not more than $1,000 or imprisoned not

more than one year, or both.



6. In relevant part 18 U.S.C.  798 provides:



(a) Whoever knowingly and willfully communicates, furnishes, transmits,

or otherwise makes available to an unauthorized person, or publishes, or

uses in any manner prejudicial to the safety or interest of the United

States or for the benefit of any foreign government to the detriment of

the United States any classified information --



(1) concerning the nature, preparation, or use of any code, cipher, or

cryptographic system of the United States or any foreign government; or



(2) concerning the design, construction, use, maintenance, or repair of

any device, apparatus, or appliance used or prepared or planned for use

by the United States or any foreign government for cryptographic or

communication intelligence purposes; or



(3) concerning the communication intelligence activities of the United

States or any foreign government; or



(4) obtained by the process of communication intelligence from the

communications of any foreign government, knowing the same to have been

obtained by such processes --



Shall be fined not more than $10,000 or imprisoned not more than ten

years, or both.



7. The purport of 18 U.S.C.  798 is clear.  Both the House and Senate

Reports on the bill, in identical terms, speak of furthering the

security of the United States by preventing disclosure of information

concerning the cryptographic systems and the communication intelligence

systems of the United States, and explaining that [t]his bill makes it a

crime to reveal the methods, techniques, and materiel used in the

transmission by this Nation of enciphered or coded messages. . . . 

Further, it makes it a crime to reveal methods used by this Nation in

breaking the secret codes of a foreign nation.  It also prohibits under

certain penalties the divulging of any information which may have come

into this Government's hands as a result of such a code-breaking.

H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950).  The narrow reach of

the statute was explained as covering "only a small category of

classified matter, a category which is both vital and vulnerable to an

almost unique degree."  Id. at 2.  Existing legislation was deemed

inadequate.



At present, two other acts protect this information, but only in a

limited way.  These are the Espionage Act of 1917 (40 Stat. 217) and the

act of June 10, 1933 (48 Stat. 122).  Under the first, unauthorized

revelation of information of this kind can be penalized only if it can

be proved that the person making the revelation did so with an intent to

injure the United States.  Under the second, only diplomatic codes and

messages transmitted in diplomatic codes are protected.  The present

bill is designed to protect against knowing and willful publication or

any other revelation of all important information affecting the United

States communication intelligence operations and all direct information

about all United States codes and ciphers. Ibid.  Section 798 obviously

was intended to cover publications by nonemployees of the Government,

and to ease the Government's burden in obtaining convictions.  See

H.R.Rep. No. 1895, supra, at 2-5.  The identical Senate Report, not

cited in parallel in the text of this footnote, is S.Rep. No. 111, 81st

Cong., 1st Sess. (1949).



8. Section 793(e) of 18 U.S.C. provides that:



(e) Whoever having unauthorized possession of, access to, or control

over any document, writing, code book, signal book, sketch, photograph,

photographic negative, blueprint, plan, map, model, instrument,

appliance, or note relating to the national defense, or information

relating to the national defense which information the possessor has

reason to believe could be used to the injury of the United States or to

the advantage of any foreign nation, willfully communicates, delivers,

transmits or causes to be communicated, delivered, or transmitted, or

attempts to communicate, deliver, transmit or cause to be communicated,

delivered, or transmitted the same to any person not entitled to receive

it, or willfully retains the same and fails to deliver it to the officer

or employee of the United States entitled to receive it; is guilty of an

offense punishable by 10 years in prison, a $10,000 fine, or both.  It

should also be noted that 18 U.S.C.  793(g), added in 1950 (see 64 Stat.

1004; S.Rep. No. 239, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides

that, [i]f two or more persons conspire to violate any of the foregoing

provisions of this section, and one or more of such persons do any act

to effect the object of the conspiracy, each of the parties to such

conspiracy shall be subject to the punishment provided for the offense

which is the object of such conspiracy.



9. The amendment of  793 that added subsection (e) was part of the

Subversive Activities Control Act of 1950, which was, in turn, Title I

of the Internal Security Act of 1950.  See 64 Stat. 987.  The report of

the Senate Judiciary Committee best explains the purposes of the

amendment:



Section 18 of the bill amends section 793 of title 18 of the United

States Code (espionage statute).  The several paragraphs of section 793

of title 18 are designated as subsections (a) through (g) for purposes

of convenient reference.  The significant changes which would be made in

section 793 of title 18 are as follows:



(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)),

to cover the unlawful dissemination of "information relating to the

national defense which information the possessor has reason to believe

could be used to the injury of the United States or to the advantage of

any foreign nation."  The phrase "which information the possessor has

reason to believe could be used to the injury of the United States or to

the advantage of any foreign nation" would modify only "information

relating to the national defense," and not the other items enumerated in

the subsection.  The fourth paragraph of section 793 is also amended to

provide that only those with lawful possession of the items relating to

national defense enumerated therein may retain them subject to demand

therefor.  Those who have unauthorized possession of such items are

treated in a separate subsection.



(2) Amends section 793, title 18 (subsec. (e)), to provide that

unauthorized possessors of items enumerated in paragraph 4 of section

793 must surrender possession thereof to the proper authorities without

demand.  Existing law provides no penalty for the unauthorized

possession of such items unless a demand for them is made by the person

entitled to receive them.  The dangers surrounding the unauthorized

possession of such items are self-evident, and it is deemed advisable to

require their surrender in such a case, regardless of demand, especially

since their unauthorized possession may be unknown to the authorities

who would otherwise make the demand.  The only difference between

subsection (d) and subsection (e) of section 793 is that a demand by the

person entitled to receive the items would be a necessary element of an

offense under subsection (d) where the possession is lawful, whereas

such a demand would not be a necessary element of an offense under

subsection (e) where the possession is unauthorized. S.Rep. No. 2369,

pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).



It seems clear from the foregoing, contrary to the intimations of the

District Court for the Southern District of New York in this case, that,

in prosecuting for communicating or withholding a "document," as

contrasted with similar action with respect to "information," the

Government need not prove an intent to injure the United States or to

benefit a foreign nation, but only willful and knowing conduct.  The

District Court relied on Gorin v. United States, 312 U.S. 19 (1941). 

But that case arose under other parts of the predecessor to  793, see

312 U.S. at 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.



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. . .

. MARSHALL, J., concurring (Footnotes)



1. See n.3, infra.



2. But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579 (1952).



3. There are several other statutory provisions prohibiting and

punishing the dissemination of information, the disclosure of which

Congress thought sufficiently imperiled national security to warrant

that result.  These include 42 U.S.C.  2161 through 2166, relating to

the authority of the Atomic Energy Commission to classify and declassify

"Restricted Data" ["Restricted Data" is a term of art employed uniquely

by the Atomic Energy Act].  Specifically, 42 U.S.C.  2162 authorizes the

Atomic Energy Commission to classify certain information.  Title 42

U.S.C.  2274, subsection (a), provides penalties for a person who

communicates, transmits, or discloses [restricted data] . . . with

intent to injure the United States or with intent to secure an advantage

to any foreign nation. . . . Subsection (b) of  2274 provides lesser

penalties for one who "communicates, transmits, or discloses" such

information "with reason to believe such data will be utilized to injure

the United States or to secure an advantage to any foreign nation. . .

."  Other sections of Title 42 of the United States Code dealing with

atomic energy prohibit and punish acquisition, removal, concealment,

tampering with, alteration, mutilation, or destruction of documents

incorporating "Restricted Data" and provide penalties for employees and

former employees of the Atomic Energy Commission, the armed services,

contractors and licensees of the Atomic Energy Commission.  Title 42

U.S.C.  2276, 2277.  Title 50 U.S.C.App.  781, 56 Stat. 390, prohibits

the making of any sketch or other representation of military

installations or any military equipment located on any military

installation, as specified; and, indeed, Congress, in the National

Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred

jurisdiction on federal district courts over civil actions "to enjoin

any violation" thereof.  50 U.S.C.App.  1152(6).  Title 50 U.S.C. 

783(b) makes it unlawful for any officers or employees of the United

States or any corporation which is owned by the United States to

communicate material which has been "classified" by the President to any

person who that governmental employee knows or has reason to believe is

an agent or representative of any foreign government or any Communist

organization. BURGER, J., dissenting (Footnotes)



1. As noted elsewhere, the Times conducted its analysis of the 47

volumes of Government documents over a period of several months, and did

so with a degree of security that a government might envy.  Such

security was essential, of course, to protect the enterprise from

others.  Meanwhile, the Times has copyrighted its material, and there

were strong intimations in the oral argument that the Times contemplated

enjoining its use by any other publisher in violation of its copyright. 

Paradoxically, this would afford it a protection, analogous to prior

restraint, against all others -- a protection the Times denies the

Government of the United States.



2. Interestingly, the Times explained its refusal to allow the

Government to examine its own purloined documents by saying in substance

this might compromise its sources and informants!  The Times thus

asserts a right to guard the secrecy of its sources while denying that

the Government of the United States has that power.



3. With respect to the question of inherent power of the Executive to

classify papers, records, and documents as secret, or otherwise

unavailable for public exposure, and to secure aid of the courts for

enforcement, there may be an analogy with respect to this Court.  No

statute gives this Court express power to establish and enforce the

utmost security measures for the secrecy of our deliberations and

records.  Yet I have little doubt as to the inherent power of the Court

to protect the confidentiality of its internal operations by whatever

judicial measures may be required. HARLAN, J., dissenting (Footnotes)



* The hearing in the Post case before Judge Gesell began at 8 a.m. on

June 21, and his decision was rendered, under the hammer of a deadline

imposed by the Court of Appeals, shortly before 5 p.m. on the same day. 

The hearing in the Times case before Judge Gurfein was held on June 18,

and his decision was rendered on June 19.  The Government's appeals in

the two cases were heard by the Courts of Appeals for the District of

Columbia and Second Circuits, each court sitting en banc, on June 22. 

Each court rendered its decision on the following afternoon.

