by Neil Sheehan
Senator Cotton, a sponsor of the bill, recognized in debate that “it should be made crystal clear that at the present time penalties for disclosure of secret information can only be applied against those employed by the Government. The recommendation extended such control over those outside the Government.” The bill proposed was never passed. The significance lies, however, in the awareness by the Congress of the problems of prior restraint and its determination to reject them except in the limited cases involved in Section 794 and Section 798 involving codes, communication intelligence, and the like.
The injunction sought by the Government must, therefore, rest upon the premise that in the absence of statutory authority there is inherent power in the Executive to protect the national security. It was conceded at the argument that there is Constitutional power to restrain serious security breaches vitally affecting the interests of the Nation. This Court does not doubt the right of the Government to injunctive relief against a newspaper that is about to publish information or documents absolutely vital to current national security. But it does not find that to be the case here. Nor does this Court have to pass on the delicate question of the power of the President in the absence of legislation to protect the functioning of his prerogatives—the conduct of foreign relations, the right to impartial advice and military security, for the responsibility of which the Executive is charged against private citizens who are not Government officials. For I am constrained to find as a fact that the in camera proceedings at which representatives of the Department of State, Department of Defense and the Joint Chiefs of Staff testified, did not convince this Court that the publication of these historical documents would seriously breach the national security. It is true, of course, that any breach of security will cause the jitters in the security agencies themselves and indeed in foreign governments who deal with us. But to sustain a preliminary injunction the Government would have to establish not only irreparable injury, but also the probability of success in the litigation itself. It is true that the Court has not been able to read through the many volumes of documents in the history of Vietnam, but it did give the Government an opportunity to pinpoint what it believed to be vital breaches to our national security of sufficient impact to contravert the right of a free press. Without revealing the content of the testimony, suffice it to say that no cogent reasons were advanced as to why these documents except in the general framework of embarrassment previously mentioned, would vitally affect the security of the Nation. In the light of such a finding the inquiry must end. If the statute (18 U.S.C. 793) were applicable (which I must assume as an alternative so that this decision may be reviewed by an appellate court), it is doubtful that it could be applied to the activities of the New York Times. For it would be necessary to find as an element of the violation a willful belief that the information to be published “could be used to the injury of the United States or to the advantage of any foreign nation.” That this is an essential element of the offense is clear. Gorin v. U.S., 312 U.S. 19 (1941).
I find that there is no reasonable likelihood of the Government successfully proving that the actions of the Times were not in good faith, nor is there irreparable injury to the Government. This has been an effort on the part of the Times to vindicate the right of the public to know. It is not a case involving an intent to communicate vital secrets for the benefit of a foreign government or to the detriment of the United States.
3. As a general matter we start with the proposition that prior restraint on publication is unconstitutional. Near v. Minnesota, 283 U.S. 697 (1931). As the Supreme Court observed in Grosjean v. American Press Co. Inc., 297 U.S. 233:
“The predominant purpose of the . . . (First Amendment) was to preserve an untrammeled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” (297 U.S. at 250)
Yet the free press provision of the First Amendment is not absolute. Near v. Minnesota, supra. In the Near case the Court said that “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 or location of troops.” The illustrations accent how limited is the field of security protection in the context of the compelling force of First Amendment right. The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication. From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment. Fortunately upon the facts adduced in this case there is no sharp clash such as might have appeared between the vital security interest of the Nation and the compelling Constitutional doctrine against prior restraint. If there be some embarrassment to the Government in security aspects as remote as the general embarrassment that flows from any security breach, we must learn to live with it. The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. In this case there has been no attempt by the Government at political suppression. There has been no attempt to stifle criticism. Yet in the last analysis it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.
These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.
For the reasons given the Court will not continue the restraining order which expires today and will deny the application of the Government for a preliminary injunction. The temporary restraining order will continue, however, until such time during the day as the Government may seek a stay from a Judge of the Court of Appeals for the Second Circuit.
The foregoing shall constitute the Court’s findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure.
(Gurfein, U.S.D.J.) So ordered.
Decision of U.S. Court of Appeals, Second Circuit, Docket No. 71-1617
June 23, 1971
PER CURIAM:
Upon consideration by the court in banc, it is ordered that the case be remanded to the District Court for further in camera proceedings to determine, on or before July 3, 1971, whether disclosure of any of those items specified in the Special Appendix filed with this Court on June 21, 1971, or any of such additional items as may be specified by the plaintiff with particularity on or before June 25, 1971, pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined, and to act accordingly, subject to the condition that the stay heretofore issued by this court, shall continue in effect until June 25, 1971, at which time it shall be vacated except as to those items which have been specified in the Special Appendix as so supplemented and shall continue in effect as to such items until disposition by the District Court.
(Firendly, Ch.J., Lumbard, Smith, Hay, Mansfield, Circuit Judges)
DISSENTING: Kaufman, Feinberg, Oakes, Circuit Judges.
We dissent and would vacate the stay and affirm the judgment of the Court below.
UNITED STATES OF AMERICA, Plaintiff, v. THE WASHINGTON POST COMPANY, et al, Defendants.
Decision
of U.S. District Court, District of Columbia, 71 Civ. 1235
June 18, 1971
This morning the Washington Post, a paper of general circulation in this city with correspondents throughout the country, published an article based upon matters contained in a 47-volume “top secret” publication prepared under the auspices of the Department of Defense, reviewing various developments relating to the Vietnam war over a period of some sixteen years prior to 1968. The United States, through the Attorney General, seeks a temporary restraining order prohibiting the Post from further publications based on this data, which the Post contemplates making in serial fashion continuing with tomorrow’s morning edition which goes to press at 9:00 p.m., and subsequent editions. In a related case, the New York Times, which was also publishing excerpts from this material, has been temporarily enjoined until 1:00 p.m. on Saturday, June 19, and proceedings are now in progress in the Southern District of New York, in camera, to determine whether or not a preliminary injunction shall issue against the Times.
The United States contends that the material contained in these 47 volumes is highly sensitive, as its “top secret” designation indicates, and asserts that the United States will be irreparably injured in its conduct of the war and in its diplomatic relations by disclosures which it has reason to believe are contemplated in the subsequent Post articles. 18 U.S.C. § 793 provides for possible criminal sanctions in these circumstances but Congress in that statute did not authorize any injunctive action. Indeed, Congress appears to have condemned any pre-existing restraint or censorship of the press by the language of the Internal Security Act of 1950 (Sec. 1 (b)), of which this statute is a part, and the Supreme Court speaking through Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697 (1931), has outlined the historic reasons supporting the total freedom of the press to publish as guaranteed by the First Amendment of the Constitution.
A temporary restraining order is designed to preserve the status quo for a brief period until all of the issues can be fully developed. It is a matter of discretion with a court whether such an order shall issue. The Court has before it no precise information suggesting in what respects, if any, the publication of this information will injure the United States and must take cognizance of the fact that there are apparently private parties in possession of this data which they will continue to leak to other sources.
What is presented is a raw question of preserving the freedom of the press as it confronts the efforts of the Government to impose a prior restraint on publication of essentially historical data. The information unquestionably will be embarrassing to the United States, but there is no possible way after the most full and careful hearing that a court would be able to determine the implications of publication on the conduct of Government affairs or to weigh these implications against the effects of withholding information from the public. It is to be strongly regretted that the Post has been unwilling to allow the court to pursue this matter over the next two or three days and voluntarily to withhold publication. Unfortunate as this may be, the Post’s position does not obviate the necessity for the Court to determine the law, particularly since the Attorney General has stated he will pursue this action regardless of what result is reached in the Times case.
The Post stands in serious jeopardy of criminal prosecution. This is the only remedy our Constitution or the Congress has provided. The Post will be allowed to publish and the request for a temporary restraining order is denied.
The application of the American Civil Liberties Union to participate in these proceedings as amicus is denied.
(Gesell, U.S.D.J.) So ordered.
Decision of U.S. Court of Appeals, District of Columbia Circuit, Docket No. 71-1478
June 19, 1971
PER CURIAM:
Very early this morning, we entered an order in this case summarily reversing an order of the District Court denying appellant, the Government, a temporary restraining order. We now summarize the reasons for the action we deemed necessary in the unusual circumstances with which we were confronted.
Appellees, the Washington Post Company and certain of its officers, are in possession of portions of a 47-volume “top secret” document known as the “History of U.S. Decision-Making Process on Vietnam Policy.” Yesterday they published information derived from that document, and admittedly intend to publish more. The Government filed in the District Court a complaint and affidavits of responsible officials claiming that publication of material from the document has prejudiced and will prejudice the conduct of the Nation’s military efforts and diplomatic relations, and will result in irreparable harm to the national defense. Appellees claim that the material is historical in character, that its publication therefore cannot reasonably be expected to prejudice defense interests though it may embarrass both governments and individuals, and that the First Amendment protects their right to publish it.
About 8:00 p.m. yesterday, the District Court denied the Government’s request for a temporary restraining order to prevent further publication of this material by appellees. In its memorandum opinion, the Court expressed the views that the Supreme Court’s opinion in Near v. Minnesota, 283 U.S. 697 (1931), supported total freedom of the press, and that criminal sanctions were the Government’s only remedy for publication of classified information. The court also said that it had no precise indication of how publication of the material would injure the United States; it felt that other parties may also have copies of the document and may divulge its contents to other sources, so that judicial intervention might ultimately be futile. The court was also concerned that even after a full hearing, it might not be able to weigh the conflicting private, public and governmental interests in secrecy and freedom of the information.
We have concluded that the District Court’s action was improper. In the first place, freedom of the press, as important as it is, is not boundless. The Near case relied on so heavily by the District Court involved a broad scheme for injunctions against “obscene, lewd and lascivious” or “malicious, scandalous and defamatory” publications. In the Supreme Court’s opinion, that scheme was clearly a prior restraint on the press prohibited by the First Amendment. But Near recognized a narrow area, embracing prominently the national security, in which a prior restraint on publication might be appropriate. See 283 U.S. at 715-16. We think the instant case may lie within that area.
Second, the District Court placed questionable reliance on the traditional rule that equity will not enjoin conduct amounting to crime. The principle is a corollary of the more general principle that equitable relief is inappropriate where there is an adequate remedy at law. The Supreme Court has recognized exceptions to the rule against injunctions to prevent crimes in cases where an important public interest was threatened with irreparable harm. See, e.g., Hecht Co. v. Bowles, 321 U.S. 321 (1944); In re Debs, 158 U.S. 564 (1895). Section 1(b) of the Internal Security Act of 1950 indicates that the criminal sanctions the Act provides for dissemination of classified information are not to be construed as establishing military or civilian censorship. 64 Stat. 987; see 18 U.S.C. § 793 (1964). But it is hardly clear that Congress thereby meant to foreclose all possible resort to injunctive relief to protect such information in such exceptional circumstances as would justify prior restraints under Near.
Thus we think the law permits an injunction against publication of material vitally affecting the national security. In this case, the Government makes precisely that claim—that publication by appellees will irreparably harm the national defense. The District Court nevertheless found that the Government had not advanced even a basis for a temporary restraint to determine whether there is any merit to its claim. Under the circumstances, we think that the District Court erred in that ruling.
We are aware that the Government has not set forth particular elements of prejudice to the national defense, and that the document in question covered a period which ended over four years ago. But we also recognize that the Government may not have been able to make spec
ific allegations without knowing precisely what parts of the document are held by appellees, and that there is an interest in avoiding disclosure of classified information even in court where such disclosure is not crucial to the court’s decision. See United States v. Reynolds, 345 U.S. 1, 8-10 (1953). The document is admittedly a review of the conduct of military and diplomatic affairs with respect to a war which continues into the present. And the Government did present affidavits of officials in a position to know what sort of harm might result from publication of material derived from the document. These circumstances do not provide a sufficient basis for determining, one way or the other, whether all of the document is essentially historical in character or whether any of it has a present impact on vital matters affecting national security. We do not understand how it can be determined without a hearing and without even a cursory examination of the material that it is nothing but “historical data” without present vitality.
While we are advertent to the heavy burden the Government bears to demonstrate ample justification for any restraint on publication, we are unable to escape the conclusion that the denial of a temporary restraining order may possibly threaten national security. Judicial responsibility, in our view, cannot properly be discharged without some inquiry into the matter. The Government does not ask us to accept its allegations, but only to afford it an opportunity to prove them. While appellees will be delayed by a grant of relief, and while courts should always hesitate to restrain free expression, the injury to appellees from a brief pause in publication is clearly outweighed by the grave potentiality of injury to the national security.
