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MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
MR. JUSTICE BRENNAN, 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.
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 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. 1
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 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 issues. If the action
of the judges up to now has been correct, that result is sheer
happenstance. 2
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 were not familiar with them.
This Court is in no better posture. I agree generally with MR.
JUSTICE HARLAN and MR. JUSTICE BLACKMUN but I am not prepared
to reach the merits. 3
I would affirm the Court of Appeals for the
Second Circuit and allow the District Court to complete the trial
aborted by our grant of certiorari, meanwhile 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.
---- Begin EndNotes ----
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.
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