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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.
I concur in today's judgments, but only because
of the concededly extraordinary protection against prior restraints
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. 1 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.
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; 2 and
the injunction should issue whether or not the material to be
published is classified, whether or not publication would be lawful
under relevant criminal statutes enacted by Congress, and regardless
of the circumstances by which the newspaper came into possession
of the information.
At least in the absence of legislation by Congress,
based on its own investigations and findings, I am quite unable
to agree that the inherent powers of the Executive and the courts
reach so far as to authorize remedies having such sweeping potential
for inhibiting publications by the press. Much of the difficulty
inheres in the "grave and irreparable danger" standard
suggested by the United States. If the United States were to have
judgment under such a standard in these cases, our decision would
be of little guidance to other courts in other cases, for the
material at issue here would not be available from the Court's
opinion or from public records, nor would it be published by the
press. Indeed, even today where we hold that the United States
has not met its burden, the material remains sealed in court records
and it is 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 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. 3
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. 4
The Criminal Code contains numerous provisions
potentially relevant to these cases. Section 797 5
makes it a crime to publish certain photographs or drawings of
military installations. Section 798, 6
also in precise language, proscribes knowing and willful publication
of any classified information concerning the cryptographic systems
or communication intelligence activities of the United States
as well as any information obtained from communication intelligence
operations. 7 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 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.
"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."
The same would be true under those sections
of the Criminal Code casting a wider net to protect the national
defense. Section 793 (e) 8
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
pre-existing law provided no penalty for the unauthorized possessor
unless demand for the documents was made. 9
" 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." 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" 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, 585-586 (1952); see also id., at 593-628 (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.
---- Begin EndNotes ----
1 The Congress has authorized a strain of prior restraints against private parties in certain instances. The National Labor Relations Board routinely issues cease-and-desist orders against employers who it finds have threatened or coerced employees in the exercise of protected rights. See 29 U. S. C. § 160 (c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15 U. S. C. § 45 (b). Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e. g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969). Article I, § 8, of the Constitution authorizes Congress to secure the "exclusive right" of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., 249 U.S. 100 (1919). Newspapers do themselves rely from time to time on the copyright as a means of protecting their accounts of important events. However, those enjoined under the statutes relating to the National Labor Relations Board and the Federal Trade 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:
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 "this 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. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that "if 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 . . . ."
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