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New York Times Co. v. United States
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.
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, 400-401 (1904):
"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 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
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; 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 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, 319-321 (1936),
collecting authorities.
From this constitutional primacy in the
field of foreign affairs, it seems to me that certain conclusions
necessarily follow. Some of these were stated concisely by 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;
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.
"The very nature of executive decisions
as to foreign policy is political, not judicial. Such decisions
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 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.
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