 |
 |
 |
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
MR. JUSTICE BLACKMUN, dissenting.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
MR. CHIEF JUSTICE BURGER, dissenting.
MR. JUSTICE MARSHALL, concurring.
MR. JUSTICE WHITE,
with whom MR. JUSTICE STEWART joins, concurring.
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 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 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 "no 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. "The 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, and immediately cause the occurrence of an event
kindred to imperiling the safety of a transport already at sea
can support even the issuance of an interim restraining order.
In no event may mere conclusions be sufficient: for if the Executive
Branch seeks judicial aid in preventing publication, it must inevitably
submit the basis upon which that aid is sought to scrutiny by
the judiciary. And therefore, every restraint issued in this
case, whatever its form, has violated the First Amendment -- and
not less so because that restraint was justified as necessary
to afford the courts an opportunity to examine the claim more
thoroughly. Unless and until the Government has clearly made
out its case, the First Amendment commands that no injunction
may issue.
* Freedman
v. Maryland, 380 U.S. 51 (1965), and similar cases regarding temporary
restraints of allegedly obscene materials are not in point. For
those cases rest upon the proposition that "obscenity is
not protected by the freedoms of speech and press." Roth
v. United States, 354 U.S. 476, 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.
|
|
|
© 1995 - 2009, Touro Law Center