THE UNITED STATES SUPREME COURT
Decided June 30, 1971
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
403 U.S. 713
We granted certiorari in these cases in which the United
to enjoin the New York Times and the Washington Post from publishing
contents of a classified study entitled "History of U.S.
Process on Viet Nam Policy."
"Any system of prior restraints of expression comes to this
a heavy presumption against its constitutional validity." Near v.
(1931). The Government "thus carries a heavy burden of showing
for the imposition of such a restraint." The District Court for the
District of New York, in the New York Times case, and the District
for the District of Columbia and the Court of Appeals for the District
of Columbia Circuit, in the Washington Post case, held that the
had not met that burden. We agree.
The judgment of the Court of Appeals for the District of
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
District of New York. The stays entered June 25, 1971, by the Court are
vacated. The judgments shall issue forthwith.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
I adhere to the view that the Government's case against the
Post should have been dismissed, and that the injunction against the
York Times should have been vacated without oral argument when the
were first presented to this Court. I believe that every moment's
of the injunctions against these newspapers amounts to a flagrant,
and continuing violation of the First Amendment. Furthermore, after
argument, I agree completely that we must affirm the judgment of the
of Appeals for the District of Columbia Circuit and reverse the
of the Court of Appeals for the Second Circuit for the reasons stated
my Brothers DOUGLAS and BRENNAN. In my view, it is unfortunate that
of my Brethren are apparently willing to hold that the publication of
may sometimes be enjoined. Such a holding would make a shambles of the
Our Government was launched in 1789 with the adoption of the
The Bill of Rights, including the First Amendment, followed in 1791.
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
of current news of vital importance to the people of this country.
In seeking injunctions against these newspapers, and in its
to the Court, the Executive Branch seems to have forgotten the
purpose and history of the First Amendment....
In the First Amendment, the Founding Fathers gave the free
protection it must have to fulfill its essential role in our democracy.
The press was to serve the governed, not the governors. The
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
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
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
should be commended for serving the purpose that the Founding Fathers
so clearly. In revealing the workings of government that led to the
war, the newspapers nobly did precisely that which the Founders hoped
trusted they would do.
The Government's case here is based on premises entirely
those that guided the Framers of the First Amendment.... We are asked
hold that, despite the First Amendment's emphatic command, the
Branch, the Congress, and the Judiciary can make laws enjoining
of current news and abridging freedom of the press in the name of
security." The Government does not even attempt to rely on any act of
Instead, it makes the bold and dangerously far-reaching contention that
the courts should take it upon themselves to "make" a law abridging
of the press in the name of equity, presidential power and national
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. To
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
injunctions like those sought here that Madison and his collaborators
to outlaw in this Nation for all time....
MR. JUSTICE BRENNAN, 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
propriety, in the future, of issuing temporary stays and restraining
to block the publication of material sought to be suppressed by the
So far as I can determine, never before has the United States sought to
enjoin a newspaper from publishing information in its possession. The
novelty of the questions presented, the necessary haste with which
were reached, the magnitude of the interests asserted, and the fact
all the parties have concentrated their arguments upon the question
permanent restraints were proper may have justified at least some of
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
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
stands as an absolute bar to the imposition of judicial restraints in
of the kind presented by these cases.
The error that has pervaded these cases from the outset was
of any injunctive relief whatsoever, interim or otherwise. The entire
of the Government's claim throughout these cases has been that
of the material sought to be enjoined "could," or "might," or "may"
the national interest in various ways. But the First Amendment
absolutely no prior judicial restraints of the press predicated upon
or conjecture that untoward consequences may result. Our cases, it is
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
Our cases have thus far indicated that such cases may arise only when
Nation "is at war," 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.
Even if the present world situation were assumed to be
a time of war, or if the power of presently available armaments would
even in peacetime the suppression of information that would set in
a nuclear holocaust, in neither of these actions has the Government
or even alleged that publication of items from or based upon the
at issue would cause the happening of an event of that nature....And,
every restraint issued in this case, whatever its form, has violated
First Amendment -- and not less so because that restraint was justified
as necessary to afford the courts an opportunity to examine the claim
thoroughly. Unless and until the Government has clearly made out its
the First Amendment commands that no injunction may issue.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins,
In the governmental structure created by our Constitution,
is endowed with enormous power in the two related areas of national
and international relations. This power, largely unchecked by the
and Judicial branches, has been pressed to the very hilt since the
of the nuclear missile age. For better or for worse, the simple fact is
that a President of the United States possesses vastly greater
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
may lie in an enlightened citizenry -- in an informed and critical
opinion which alone can here protect the values of democratic
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
Yet it is elementary that the successful conduct of
and the maintenance of an effective national defense require both
and secrecy. Other nations can hardly deal with this Nation in an
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
those charged with their formulation could not communicate with each
freely, frankly, and in confidence. In the area of basic national
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
the Executive a large degree of unshared power in the conduct of
affairs and the maintenance of our national defense, then, under the
the Executive must have the largely unshared duty to determine and
the degree of internal security necessary to exercise that power
It is an awesome responsibility, requiring judgment and wisdom of a
order. I should suppose that moral, political, and practical
would dictate that a very first principle of that wisdom would be an
upon avoiding secrecy for its own sake. For when everything is
then nothing is classified, and the system becomes one to be
by the cynical or the careless, and to be manipulated by those intent
self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the
possible disclosure, recognizing that secrecy can best be preserved
when credibility is truly maintained. But, be that as it may, it is
to me that it is the constitutional duty of the Executive -- as a
of sovereign prerogative, and not as a matter of law as the courts know
law -- through the promulgation and enforcement of executive
to protect the confidentiality necessary to carry out its
in the fields of international relations and national defense.
This is not to say that Congress and the courts have no role
Undoubtedly, Congress has the power to enact specific and appropriate
laws to protect government property and preserve government secrets.
has passed such laws, and several of them are of very colorable
to the apparent circumstances of these cases. And if a criminal
is instituted, it will be the responsibility of the courts to decide
applicability of the criminal law under which the charge is brought.
if Congress should pass a specific law authorizing civil proceedings in
this field, the courts would likewise have the duty to decide the
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
regulations nor to apply specific laws. We are asked, instead, to
a function that the Constitution gave to the Executive, not the
We are asked, quite simply, to prevent the publication by two
of material that the Executive Branch insists should not, in the
interest, be published. I am convinced that the Executive is correct
respect to some of the documents involved. But I cannot say that
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.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins,
I concur in today's judgments, but only because of the
protection against prior restraints enjoyed by the press under our
system. I do not say that in no circumstances would the First Amendment
permit an injunction against publishing information about government
or operations. Nor, after examining the materials the Government
as the most sensitive and destructive, can I deny that revelation of
documents will do substantial damage to public interests. Indeed, I am
confident that their disclosure will have that result. But I
agree that the United States has not satisfied the very heavy burden
it must meet to warrant an injunction against publication in these
at least in the absence of express and appropriately limited
authorization for prior restraints in circumstances such as these....
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases
in a suit by the United States, "the First Amendment bars a court from
prohibiting a newspaper from publishing material whose disclosure would
pose a 'grave and immediate danger to the security of the United
" 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
to classify information as "secret" or "top secret." Congress has
recognized Presidential authority to classify documents and
Nor is there any issue here regarding the President's power as Chief
and Commander in Chief to protect national security by disciplining
who disclose information and by taking precautions to prevent leaks.
The problem here is whether, in these particular cases, the
Branch has authority to invoke the equity jurisdiction of the courts to
protect what it believes to be the national interest. The Government
that, in addition to the inherent power of any government to protect
the President's power to conduct foreign affairs and his position as
in Chief give him authority to impose censorship on the press to
his ability to deal effectively with foreign nations and to conduct the
military affairs of the country....
It would, however, be utterly inconsistent with the concept
of powers for this Court to use its power of contempt to prevent
that Congress has specifically declined to prohibit. There would be a
damage to the basic concept of these co-equal branches of Government
when the Executive Branch has adequate authority granted by Congress to
protect "national security," it can choose, instead, to invoke the
power of a court to enjoin the threatened conduct. The Constitution
that Congress shall make laws, the President execute laws, and courts
laws. It may be more convenient for the Executive Branch if it need
convince a judge to prohibit conduct, rather than ask the Congress to
a law, and it may be more convenient to enforce a contempt order than
seek a criminal conviction in a jury trial. Moreover, it may be
politically wise to get a court to share the responsibility for
those who the Executive Branch has probable cause to believe are
the law. But convenience and political considerations of the moment do
not justify a basic departure from the principles of our system of
In these cases, we are not faced with a situation where
failed to provide the Executive with broad power to protect the Nation
from disclosure of damaging state secrets. Congress has, on several
given extensive consideration to the problem of protecting the military
and strategic secrets of the United States. This consideration has
in the enactment of statutes making it a crime to receive, disclose,
withhold, and publish certain documents, photographs, instruments,
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior
expression that, from the time of Near v. Minnesota we have had little
occasion to be concerned with cases involving prior restraints against
news reporting on matters of public interest. There is, therefore,
variation among the members of the Court in terms of resistance to
restraints against publication. Adherence to this basic constitutional
principle, however, does not make these cases simple. In these cases,
imperative of a free and unfettered press comes into collision with
imperative, the effective functioning of a complex modern government,
specifically, the effective exercise of certain constitutional powers
the Executive. Only those who view the First Amendment as an absolute
all circumstances -- a view I respect, but reject -- can find such
as these to be simple or easy.
These cases are not simple for another and more immediate
do not know the facts of the cases. No District Judge knew all the
No Court of Appeals judge knew all the facts. No member of this Court
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
in unseemly haste. MR. JUSTICE HARLAN covers the chronology of events
the hectic pressures under which these cases have been processed, and I
need not restate them. The prompt setting of these cases reflects our
abhorrence of prior restraint. But prompt judicial action does not mean
Here, moreover, the frenetic haste is due in large part to
in which the Times proceeded from the date it obtained the purloined
It seems reasonably clear now that the haste precluded reasonable and
judicial treatment of these cases, and was not warranted. The
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
The newspapers make a derivative claim under the First
denominate this right as the public "right to know"; by implication,
Times asserts a sole trusteeship of that right by virtue of its
"scoop." The right is asserted as an absolute. Of course, the First
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
if there was no fire. There are other exceptions, some of which Chief
Hughes mentioned by way of example in Near v. Minnesota. There are no
other exceptions no one has had occasion to describe or discuss.
such exceptions may be lurking in these cases and, would have been
had they been properly considered in the trial courts, free from
deadlines and frenetic pressures. An issue of this importance should be
tried and heard in a judicial atmosphere conducive to thoughtful,
deliberation, especially when haste, in terms of hours, is unwarranted
in light of the long period the Times, by its own choice, deferred
It is not disputed that the Times has had unauthorized
the documents for three to four months, during which it has had its
analysts studying them, presumably digesting them and preparing the
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
for purposes it considered proper, and thus public knowledge was
No doubt this was for a good reason; the analysis of 7,000 pages of
material drawn from a vastly greater volume of material would
take time, and the writing of good news stories takes time. But why
the United States Government, from whom this information was illegally
acquired by someone, along with all the counsel, trial judges, and
judges be placed under needless pressure? After these months of
the alleged "right to know" has somehow and suddenly become a right
must be vindicated instanter.
Would it have been unreasonable, since the newspaper could
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
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
editorially to be the duty of an honorable press --the newspapers and
might well have narrowed the area of disagreement as to what was and
not publishable, leaving the remainder to be resolved in orderly
if necessary. To me, it is hardly believable that a newspaper long
as a great institution in American life would fail to perform one of
basic and simple duties of every citizen with respect to the discovery
or possession of stolen property or secret government documents. That
I had thought -- perhaps naively -- was to report forthwith, to
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
Our grant of the writ of certiorari before final judgment in
case aborted the trial in the District Court before it had made a
record pursuant to the mandate of the Court of Appeals for the Second
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
record, and surely without time for adequate treatment either in the
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
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
not familiar with them. This Court is in no better posture. I agree
with MR. JUSTICE HARLAN and MR. JUSTICE BLACKMUN, but I am not prepared
to reach the merits....
We all crave speedier judicial processes, but, when judges
as in these cases, the result is a parody of the judicial function.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR.
These cases forcefully call to mind the wise admonition of
Holmes, dissenting in Northern Securities Co. v. United States, 193
197, 400-401 (1904):
"Great cases, like hard cases, make bad law. For great cases
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
interests exercise a kind of hydraulic pressure which makes what
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
feverish in dealing with these cases....
This frenzied train of events took place in the name of the
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
In order to decide the merits of these cases properly, some or all of
following questions should have been faced:
1. Whether the Attorney General is authorized to bring these
the name of the United States.
2. Whether the First Amendment permits the federal courts to
publication of stories which would present a serious threat to national
3. Whether the threat to publish highly secret documents is
a sufficient implication of national security to justify an injunction
on the theory that, regardless of the contents of the documents, harm
results simply from the demonstration of such a breach of secrecy.
4. Whether the unauthorized disclosure of any of these
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
notwithstanding the seemingly uncontested facts that the documents, or
the originals of which they are duplicates, were purloined from the
possession, and that the newspapers received them with knowledge that
had been feloniously acquired.
7. Whether the threatened harm to the national security or
possessory interest in the documents justifies the issuance of an
against publication in light of --
a. The strong First Amendment policy against
b. The doctrine against enjoining conduct in
of criminal statutes; and
c. The extent to which the materials at issue
already been otherwise disseminated.
These are difficult questions of fact, of law, and of
potential consequences of erroneous decision are enormous. The time
has been available to us, to the lower courts, and to the parties has
wholly inadequate for giving these cases the kind of consideration they
deserve. It is a reflection on the stability of the judicial process
these great issues -- as important as any that have arisen during my
on the Court -- should have been decided under the pressures engendered
by the torrent of publicity that has attended these litigations from
Forced as I am to reach the merits of these cases, I dissent
opinion and judgments of the Court. Within the severe limitations
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
Second Circuit in the Times litigation to observe that its order must
on the conclusion that, because of the time elements the Government had
not been given an adequate opportunity to present its case to the
Court. At the least this conclusion was not an abuse of discretion....
It is plain to me that the scope of the judicial function in
upon the activities of the Executive Branch of the Government in the
of foreign affairs is very narrowly restricted. This view is, I think,
dictated by the concept of separation of powers upon which our
In a speech on the floor of the House of Representatives,
John Marshall, then a member of that body, stated: "The President is
sole organ of the nation in its external relations, and its sole
with foreign nations."
From that time, shortly after the founding of the Nation, to
has been no substantial challenge to this description of the scope of
From this constitutional primacy in the field of foreign
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
of the Jay Treaty:
"The nature of foreign negotiations requires caution, and
must often depend on secrecy; and even when brought to a conclusion, a
full disclosure of all the measures, demands, or eventual concessions
may have been proposed or contemplated would be extremely impolitic;
this might have a pernicious influence on future negotiations, or
immediate inconveniences, perhaps danger and mischief, in relation to
The power to evaluate the "pernicious influence" of
is not, however, lodged in the Executive alone. I agree that, in
of its duty to protect the values of the First Amendment against
pressures, the judiciary must review the initial Executive
to the point of satisfying itself that the subject matter of the
does lie within the proper compass of the President's foreign relations
power. Constitutional considerations forbid "a complete abandonment of
judicial control." This safeguard is required in the analogous area of
executive claims of privilege for secrets of state.
But, in my judgment, the judiciary may not properly go
two inquiries and redetermine for itself the probable impact of
on the national security.
"[T]he 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.
are and should be undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They are decisions of a
for which the Judiciary has neither aptitude, facilities nor
and which has long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry."
Even if there is some room for the judiciary to override the
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
of the Executive were given even the deference owing to an
agency, much less that owing to a co-equal branch of the Government
within the field of its constitutional prerogative....
MR. JUSTICE BLACKMUN, dissenting.
I join MR. JUSTICE HARLAN in his dissent. I also am in
with much that MR. JUSTICE WHITE says, by way of admonition, in the
part of his opinion....
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