by Neil Sheehan
Under these circumstances, we felt compelled to reverse the decision of the District Court, and to restrain publication for the shortest possible period consistent with an opportunity for the Government to substantiate its claims at a hearing on its request for a preliminary injunction.
(Robinson and Robb, Circuit Judges) Reversed.
DISSENTING: Wright, Circuit Judge
This is a sad day for America. Today, for the first time in the two hundred years of our history, the executive department has succeeded in stopping the presses. It has enlisted the judiciary in the suppression of our most precious freedom. As if the long and sordid war in Southeast Asia had not already done enough harm to our people, it now is used to cut out the heart of our free institutions and system of government. I decline to follow my colleagues down this road and I must forcefully state my dissent.
The executive department has sought to impose a prior restraint on publication of a series of articles by the Washington Post. The district court refused to cooperate. Very basic constitutional principles support the district court’s decision.
In Near v. Minnesota, 283 U.S. 713 (1931), Mr. Chief Justice Hughes spoke for the Supreme Court and stated that imposition of prior restraints upon publishing is “the essence of censorship.” Id. at 713. He quoted Blackstone, the father of our common law liberties, and Madison, the father of our Constitution, to the effect that prior restraints on speech and press constitute the most heinous encroachment on our freedom. In the early days, Americans such as Madison had hoped that their country would not follow the repressive course of England. “Here, as Madison said, ‘the great and essential rights of the people are secured against legislative as well as executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, but from legislative restraint also.’” Id. at 714.
Under the First Amendment of our Constitution, prior restraints upon speech and press are even more serious than subsequent punishment. There is no question as to the extent of the deterrent effect. A restraining order, imposed by a court, applies directly against a particular individual or newspaper and carries very specific and very severe penalties for contempt. It is imposed before the speech at issue has even seen the light of day. As in this case, it is imposed even before the judges have read the offending material—imposed quite literally in the dark. The weapon of the prior injunction is a weapon long unused, but potentially deadly.
It is said that a temporary restraining order suppresses free speech only for a few days, and what is the hurry? That argument, in my opinion, cheapens the First Amendment. All of the presumptions must run in favor of free speech, not against it. It is the government, not the newspapers, which should be asked, “what is the hurry?”
Thus we arrive at the key issue here. The burden is on the government. Clearly, there are some situations in which a prior restraint on speech or press might conceivably be allowable. But those situations are very exceptional and must be very convincingly established by the party seeking an injunction. The Near Court recognized as much and said:
the protection even as to previous restraint is not unlimited. But the limitation has been recognized only in exceptional cases: . . . 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 and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The securing of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not ‘protect a man from an injunction against uttering words that may have all the effect of force.’
Id. at 716.
In this case, the executive department has made no allegations—to say nothing of convincing showings—that troop movements or recruitment are threatened. Neither obscenity nor overthrow of the government is at issue. All that is at issue is what the district court termed “essentially historical data.” It is at least three years old and as much as twenty years old. It records the plans and policies of bygone days; it does not reveal the current plans of the present administration which, by its own account, is pursuing a different policy.
Since we are dealing with “essentially historical data,” the executive department has an even greater burden to suggest what specific sort of harm may result from its publication. Yet it seeks to suppress history solely on the basis of two very vague allegations: (1) the data has been classified as “top secret,” because (2) the data is said to adversely affect our national security.
With the sweep of a rubber stamp labelled “top secret,” the executive department seeks to abridge the freedom of the press. It has offered no more. We are asked to turn our backs on the First Amendment simply because certain officials have labelled material as unfit for the American people and the people of the world. Surely, we must demand more. To allow a government to suppress free speech simply through a system of bureaucratic classification would sell our heritage far, far too cheaply.
It is said that it is better to rely on the judgment of our government officials than upon the judgment of private citizens such as the publishers of the Washington Post. Again, that misses the point. The First Amendment is directed against one evil: suppression of the speech of private citizens by government officials. It embodies a healthy distrust of governmental censorship. More importantly, it embodies a fundamental trust of individual Americans. Any free system of government involves risks. But we in the United States have chosen to rely in the end upon the judgment and true patriotism of all the people, not only of the officials.
This case would seem to be a good illustration. As the district court said, a detailed account of our initiation and prosecution of the war in Vietnam “unquestionably will be embarrassing to the United States.” But that is due to the nature of the history, not to the nature of the account. Surely, mere “embarrassment” is not enough to defeat First Amendment rights. Indeed, it may be a necessary part of democratic self-government. At a time when the American people and their Congress are in the midst of a pitched debate over the war, the history of the war, however disillusioning, is crucial. The executive department, which brought us into the war and which would be primarily “embarrassed” by publication of the material in question, must not be allowed to bury that history at such a time. Democracy works only when the people are informed.
Whatever temporary damage may come to the image of this country at home and abroad from the historical revelations in these Pentagon Papers is miniscule compared to the lack of faith in our government engendered in our people from their suppression. Suppression breeds suspicion and speculation. I suggest the truth is not nearly so devastating as the speculation following suppression. We are a mature people. We can stand the truth.
Thus, in my view, the government faces a very great burden of justification in this case. It has sought to meet that burden with general allegations about national security and “top secret” classifications. It suggests that it may have more specific allegations, but refuses even to hint at them until we bend to its will and grant a temporary restraining order. I refuse to act on such a basis. I believe that the government has not met its burden—it has not even come close. In that circumstance, I feel duty and honor bound to vote to affirm the decision of the district court.
I respectfully dissent.
Decision of U.S. District Court, District of Columbia, 71 Civ. 1235
June 21, 1971
THE COURT: The Washington Post has certain papers from The History of United States Decision-Making Process on Vietnam Policy, a forty-seven-volume document, which was given an over-all Top Secret classification.
The United States Court of Appeals granted a temporary restraining order against publication by the P
ost and directed that this Court hold a hearing today and make a determination by 5:00 p.m. with respect to the prayer of the United States for a preliminary injunction against further publication. This Court was directed by the Court of Appeals to determine whether publication of material from this document would so prejudice the defense interests of the United States or result in such irreparable injury to the United States as would justify restraining the publication thereof.
The role of quasi-censor thus imposed is not one that any District Judge will welcome to have placed on him by an appellate decision. It has been a doubly difficult role because the material to be censored is unavailable for there is absolutely no indication of what the Post actually will print and no standards have been enunciated by the Court of Appeals to be applied in a situation such as this, which is one of first impression.
Venturing onto this unfamiliar and uncongenial ground, the Court has in public hearings and in the secret hearings that the Court’s directive necessarily required sought to carry out its responsibilities.
Voluminous material was submitted in affidavit form, testimony was taken from several witnesses at the session starting at 8:00 a.m. today, and the parties were heard in brief oral argument at conclusion.
The Court finds that the documents in question include material in the public domain and other material that was Top Secret when written long ago but not clearly shown to be such at the present time. The Court further finds that publication of the documents in the large may interfere with the ability of the Department of State in the conduct of delicate negotiations now in process or contemplated for the future, whether these negotiations involve Southeast Asia or other areas of the world. This is not so much because of anything in the documents, themselves, but rather results from the fact that it will appear to foreign governments that this Government is unable to prevent publication of actual Government communications when a leak such as the present one occurs. Many of these governments have different systems than our own and can do this; and they censor.
The problem raised in this instance is particularly acute because two major papers are involved and the volume of the material leaked is great.
There has been some adverse reaction in certain foreign countries, the degree and significance of which cannot now be measured even by opinion testimony. No contemporary troop movements are involved, nor is there any compromising of our intelligence.
On the other hand, it is apparent from detailed affidavits that officials make use of classified data on frequent occasions in dealing with the press and that this situation is not unusual except as to the volume of papers involved.
The Court of Appeals apparently felt that the question of irreparable injury should be considered; that is, that the Court should weigh the equities of the situation in the traditional manner; and this Court has attempted to do so. This requires a word with respect to the classification process.
There is no showing that in this instance there was any effort made by the Government to distinguish Top Secret and other material, to separate the two, or, indeed, to make any effort once the publication was completed, to determine the degree, the nature or extent of the sensitivity which still existed in 1968 or for that matter exists at the present time.
At the close of the argument today, the Government stated it was engaged in declassifying some of the material and requested time to complete this process with the thought that permission would then perhaps be given to the Post to publish what is ultimately declassified out of the whole.
The volumes stretch back over a period well into the early forties. The criteria of Top Secret are clear; and the Government has not presented, as it must on its burden, any showing that the documents at the present time and in the present context are Top Secret.
There is no proof that there will be a definite break in diplomatic relations, that there will be an armed attack on the United States, that there will be an armed attack on an ally, that there will be a war, that there will be a compromise of military or defense plans, a compromise of intelligence operations, or a compromise of scientific and technological materials.
The Government has made a responsible and earnest appeal demonstrating the many ways in which its efforts particularly in diplomacy will not only be embarrassed but compromised or perhaps thwarted. In considering irreparable injury to the United States, however, it should be obvious that the interests of the Government are inseparable from the public interest. These are one and the same and the public interest makes an insistent plea for publication. This was represented not only in the eloquent statements of Congressman Eckhart, which the Court found persuasive, speaking on behalf of amicus curiae, but it also is apparent from the context in which this situation presents itself.
Equity deals with realities and not solely with abstract principles. A wide-ranging, long-standing and often vitriolic debate has been taking place in this country over the Vietnam conflict. The controversy transcends party lines and there are many shades and differences of opinion. Thus the publications enjoined by the Court of Appeals concern an issue of paramount public importance, affecting many aspects of Governmental action and existing and future policy.
There has, moreover, been a growing antagonism between the Executive branch and certain elements of the press. This has serious implications for the stability of our democracy. Censorship at this stage raises doubts and rumors that feed the fires of distrust.
Our democracy depends for its future on the informed will of the majority, and it is the purpose and effect of the First Amendment to expose to the public the maximum amount of information on which sound judgment can be made by the electorate. The equities favor disclosure, not suppression. No one can measure the effects of even a momentary delay.
Given these circumstances, the Court finds it is still in the same position that it was in when it denied the request for a temporary restraining order. There is presented the raw question of a conflict between the First Amendment and the genuine deep concern of responsible officials in our Government as to implications both immediate and long-range of this breach of confidentiality.
In interpreting the First Amendment, there is no basis upon which the Court may adjust it to accommodate the desires of foreign governments dealing with our diplomats, nor does the First Amendment guarantee our diplomats that they can be protected against either responsible or irresponsible reporting.
The First Amendment in this case prohibits a prior restraint on publication. Accordingly, on the issue of likely success on the merits which is presented in any preliminary injunction application, the Court has concluded there is no likelihood of success.
There is not here a showing of an immediate grave threat to the national security which in close and narrowly-defined circumstances would justify prior restraint on publication.
The Government has failed to meet its burden and without that burden being met, the First Amendment remains supreme. Any effort to preserve the status quo under these circumstances would be contrary to the public interest. Accordingly, the Government’s prayer for a preliminary injunction is denied.
I have signed an order to that effect in order to facilitate appeal by the United States. I will state now on the record that the Court will not under any circumstances grant a stay.
You may file this.
I wish to again thank counsel in the case.
MR. MARONEY: Would Your Honor grant us a stay of the order dissolving the restraining order to permit us time to go to the Court of Appeals?
THE COURT: I will not grant any stay. You have twenty minutes. I am sure they are waiting for you upstairs.
(Gesell, U.S.D.J.)
Decision of U.S. Court of Appeals, District of Columbia Circuit, Docket No. 71-1478
June 23, 1971
PER CURIAM:
This is an appeal by the United States from an order of the district court denying a preliminary injunction against the publication of material derived from a document entitled “Histor
y of U.S. Decision-Making Process on Vietnam Policy.” We affirm the district court.
The district court denied the preliminary injunction after a hearing. By affidavits and the testimony of witnesses at the hearing the government attempted to demonstrate that the publication of the material in question should be restrained because it would gravely prejudice the defense interests of the United States or result in irreparable injury to the United States. The district court found that the government failed to sustain its burden. Specifically, the district court directed the government to present any document from the “History” the disclosure of which in the government’s judgment would irreparably harm the United States. The government’s affidavits and testimony, presented largely in camera, discussed several of the documents. The district court found either that disclosure of those specific documents would not be harmful or that any harm resulting from disclosure would be insufficient to over-ride First Amendment interests. Having examined the record made before the district court we agree with its conclusion. In our opinion the government’s proof, judged by the standard suggested in Near v. Minnesota, 283 U.S. 697, 716 (1931), does not justify an injunction.
The vitality of the principle, that any prior restraint on publication comes into court under a heavy presumption against its constitutional validity, was recognized by the Supreme Court of the United States as recently as May 17, 1971. Organization for a Better Austin v. Keefe, No. 135, October Term 1970, 39 L.W. 4577.
Our conclusion to affirm the denial of injunctive relief is fortified by the consideration that the massive character of the “leak” which has occurred, and the disclosures already made by several newspapers, raise substantial doubt that effective relief of the kind sought by the government can be provided by the judiciary.
The government has requested a stay in order that it may present this matter to the Supreme Court of the United States. Accordingly, the stay previously entered is continued until 6:00 P.M., Friday, June 25, 1971.
