by Neil Sheehan
(Bazelon, Ch.J., Wright, McGowan, Tamm, Leventhal, Robinson, Robb, Circuit Judges)
Affirmed.
DISSENTING: MacKinnon and Wilkey, Circuit Judges.
MacKinnon, Circuit Judge: It is unfortunate that this case comes to us on a blind record in which the actual documents in the possession of the newspaper are not before us. Our ability to deal effectively with the problem is also currently complicated today by the release of the entire 47 volumes to Congress where the problem of disclosure may be compounded. This and the widespread disclosure heretofore made, would minimize the value of any restraining order. However, by agreement of the parties some of the documents will be protected, and an examination of some of the other documents convinces me that we should not entirely abdicate our responsibility to protect the security of our nation’s military and diplomatic activities even though the ability of any court to act effectively is greatly impaired by the present climate of disclosure. Since we must pass on some phases of the matter, at the very least I would remand to the District Court for a more precise ruling by the trial court as to several specific documents. I would not reward the theft of these documents by a complete declassification. There is a regular method by which access to classified information can be accomplished and in my view the prescribed method should be followed in this as in other instances. As this case well illustrates, courts are not designed to deal adequately with national defense and foreign policy. Epstein v. Resor, 421 F.2d 930, 933 (9th Cir.), cert[iorari] denied, 398 U.S. 965 (1970).
Wilkey, Circuit Judge: I would affirm the action of the trial court in not restraining the publication of the vast majority of these documents, but I must dissent from the blanket, total affirmance of the trial court’s action, without a remand for a particularized finding as to the likelihood of harm resulting from the publication of certain specific papers.
We all take pride in freedom of speech and the press as one of the true glories of our form of government, perhaps most eloquently apotheosized by Judge Learned Hand, “To many this is, and always will be, folly; but we have staked upon it our all.”1 This sets an ideal reference point, but Judge Hand, when he uttered those words, was not adjudicating this particular case. Of more relevance to the case at bar are the words of Justice Holmes: “The character of every act depends upon the circumstances in which it is done. . . . The question in every case is whether the words used are used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”2 To which Justice Frankfurter added: “Free speech is not so absolute or irrational a conception as to imply paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights.”3
In the desire to minimize the prior restraint of publication required in the stay Orders, the compression of time severely handicapped the parties, the trial court and this court in focusing on the few specific documents whose publication presently constitute a clear danger. The Government did not know which documents out of the 47 volumes the Post had in its possession until a partial list was furnished the night before the second hearing before the trial court, a supplemental list was furnished in the middle of the hearing, and not until the Government had time to check the Post description of each document against the 47 volumes was the Government in a position to say whether in its opinion publication would be dangerous or not. The obvious clarifying solution of the Post physically producing the documents in its possession was barred by the Post’s objection, sustained by the trial court, that its source would be revealed.
In this state of affairs the Government necessarily relied on affidavits couched in general terms, two dated before and one on the day of the hearing. These and the cross-examination of two affiants on the material in the affidavits did not satisfy the trial court with the requisite specificity as to the clear danger that publication of any single document presently represented. On this state of the record the court here sustains the trial court, saying that the Government did not sustain its admittedly heavy burden of proof to justify a prior restraint on publication.
We have not been furnished any of the original documents. But on careful detailed study of the affidavits in evidence, I find a number of examples of documents which, if in the possession of the Post and if published, could clearly result in great harm to the nation. When I say “harm,” I mean the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate as honest brokers between would-be belligerents.
The court’s opinion relies upon the standard of Near v. Minnesota in regard to prior restraint. So do I. Near cites “the publication of sailing dates of transports or the number and location of troops”4 as obvious examples where prior restraint of publication would be justified. In the affidavit evidence before the trial court and this court there are examples cited which meet this standard. There appears to be a clear and present danger of military casualties enhanced. There are numerous examples of the likely destruction of our diplomatic efforts, and this should not be put on a lower scale than immediate prospective military losses. Only those who think of the settlement of international disputes by sheer military power would derogate the importance of diplomatic negotiations as our first line of defense. It is literally true that when diplomacy fails lives are lost.
Of course the great bulk of these documents probably may be characterized as only embarrassing, some not even that, and are ready for study by journalists, historians and the public: the public should have them. Yet the small percentage which appear dangerous could be grievously harmful to this country.
Since neither we nor the trial court had before it the individual documents, and the trial court dealt only in generalities, because that was necessarily the Government’s case, I would remand this case to the trial court for the Government, first, now that it has the Post complete list and has had the time to check the list against the 47 volumes, to say which documents it objects to having published. This, in my judgment, will immediately release the great bulk of these for publication. (If it doesn’t, the Government is relying on the wrong standard.) Next, the Government can pinpoint its objections to each of the remaining documents. On the basis of what we heard in oral argument, the Post might agree that some would not be published, leaving a remainder on which it differs with the Government. On the remainder the trial court can then rule, applying the Near standard, but this time knowing to which specific document the standard is to be applied.
SUPREME COURT OF THE UNITED STATES No. 1873—New York Times Company, Petitioner, v. United States. No. 1885–United States, Petitioner, v. The Washington Post Company, et al.
Oral Argument
June 26, 1971
Proceedings
Mr. Chief Justice Burger: We will hear arguments in Nos. 1873 and 1885, The New York Times against the United States, and United States against Washington Post Company.
Mr. Solicitor General, the Government’s motion to conduct part of the oral arguments involving security matters in camera, as has been done in the District Courts in New York and Washington, and in the Courts of Appeals in the Second Circuit and the District of Columbia Circuit is denied by the court. Mr. Justice Harlan, Mr. Justice Blackmun and I would grant a limited in camera argument, as has been done in all of the hearings in these cases until now.
Under the order granting the writ yesterday, counsel may, if they wish, submit arguments in writing under seal in lieu of the in camera oral argument.
Mr. Solicitor General, you may proceed.
Oral Argument by the Solicitor General on Behalf of Petitioner (The United States Government)
The Solicitor General: Mr. Chief Justice, may I say in respect of the announcement just made that all three parties have filed a closed brief as well as the open brief, and in addition, I have filed just within minutes two statement
s, one prepared by the State Department and one prepared by the Department of Defense, giving more detail about some of the items which are discussed in my closed brief. I believe that those will all be before the Court.
Chief Justice Burger:
Q. Are you suggesting that these matters last filed are security matters, or they merely supplement?
A. The only ones that are security matters that I have filed are all marked “Top Secret.”
Q. Thank you very much. I just wanted to be sure as to these last documents.
A. The items filed by The Post and The Times I do not believe are marked “Top Secret,” but they are marked “In Camera” in the caption of the items. I repeat, all three have also filed regular briefs, except not printed. Only the American Civil Liberties Union seemed to have the resources to produce the printed brief for this occasion.
I am told that the law students of today are indignantly opposed to final examinations because they say that no lawyer ever has to work under such pressure that he has to get things out in three or four hours. I can only say that I think it is perhaps fortunate that Mr. Glendon and Mr. Bickel and I went to law school under an earlier dispensation.
It is important, I think, to get this case in perspective. The case of course raises important and difficult problems about the Constitutional right of free speech and of the free press. We have heard much about that from the press in the last two weeks. But it also raises important questions of the equally fundamental and important right of the Government to function. Great emphasis has been put on the First Amendment, and rightly so, but there is also involved here a fundamental question of separation of powers in the sense of the power and authority which the Constitution allocates to the President as chief executive and as Commander-in-Chief of the Army and Navy.
Involved in that there is also the question of the integrity of the institution of the Presidency, whether that institution, one of the three great powers under the separation of powers, can function effectively.
The problem lies on a wide spectrum, and like all questions of Constitutional law involves the resolution of competing principles. In the first place, it seems to me that it will be helpful to make some preliminary observations. If we start out with the assumption that never under any circumstances can the press be subjected to prior restraint, never under any circumstances can the press be enjoined from publication, of course we come out with the conclusion that there can be no injunction here. But I suggest, not as necessarily conclusive in this case, but I suggest that there is no such Constitutional rule, and never has been such a Constitutional rule.
We have, for example, the copyright laws. My son was in Toronto earlier this week and he sent me copies of The Globe and Mail of Toronto, ten series of the story the Pentagon is trying to kill, each one headed “Copyright New York Times Service.” I have no objection to that, but these stories which have been published have been copyrighted by The New York Times and I believe by The Washington Post, and I have no doubt that perhaps in other cases, because these have already attracted much attention, The New York Times and The Washington Post would seek to enforce their copyright. I suppose it is very likely that in one form or another they have obtained royalties because of their copyright on this matter.
But let us also consider other fields of the law. There is a well known branch of the law that goes under the heading of literary property. In the Court of Appeals I gave the example of a manuscript written by Ernest Hemingway, let us assume while he was still living, unpublished, perhaps incomplete, subject to revision. In some way the press gets hold of it. Perhaps it is stolen. Perhaps it is bought from a secretary through breach of fiduciary responsibility, or perhaps it is found on the sidewalk. If The New York Times sought to print that, I have no doubt that Mr. Hemingway or now his heirs, next of kin, could obtain from the courts an injunction against the press printing it. Only this morning I see in the paper that a New York publisher is bringing a suit against Newsday, a New York newspaper, because Newsday has violated what the New York publisher considers to be its copyright in the forthcoming memoirs of President Johnson.
Next, we have a whole series of law, a traditional branch of equity, involving participation in a breach of trust. There cannot be the slightest doubt, it seems to me, no matter what the motive, no matter what the justification, that both The New York Times and The Washingon Post are here consciously and intentionally participating in a breach of trust. They know that this material is not theirs. They do not own it. I am not talking about the pieces of paper which they may have acquired. I am talking about the literary property, the concatenation of words, which is protected by the law of literary property. Again I say I don’t regard this as controlling or conclusive in this case. I am simply trying to advance the proposition that there are many factors and many facets here, and that there is no Constitutional rule that there can never be prior restraint on the press or on free speech.
Now, in our main brief in this case which I may say was largely prepared by my associate, Mr. Friedman, last evening and last night, we have cited one case which comes very close to being an injunction by this Court against publications in the press. That is The Associated Press case in I believe 215 United States. The Associated Press is a cooperative of newspapers, and there The Associated Press sought and obtained an injunction against the dissemination of news by its competitor International Press, and that was granted on copyright and related grounds.
But we have other areas in the law where this court has approved against specific First Amendment claims injunctions in advance forbidding speech. One area of this is the labor law field, where as recently as 395 U.S. in Sinclair against the National Labor Relations Board, the Court unanimously affirmed the judgment of the Court of Appeals enforcing the board’s order, which included a provision requiring Sinclair to cease and desist from threatening the employees with the possible closing of the plant or the transfer of the weaving production with the attendant loss of employment, or with any other economic reprisals if they were to select the above named or any other labor organization.
In 393 U.S., a case involving the Federal Trade Commission, the Federal Trade Commission against the Texaco, Inc., involving orders with respect to TBC, tires, batteries and accessories, the Court approved the order of the Federal Trade Commission which restrained Texaco from using or attempting to use any device such as, but not limited to, dealer discussions. They were ordered not to speak to dealers about this subject, and the First Amendment was specifically referred to in the brief for the respondent, and was not mentioned in this Court’s opinion.
Justice Stewart:
Q. Mr. Solicitor General, of course, The Times in this case, and there are no doubt others, I did not understand your brother counsel on the other side really questioned any of this. I thought at least for purposes of this case they conceded that an injunction would be not violative of the First Amendment, or put it this way, that despite the First Amendment, an injunction would be permissible in this case if the disclosure of this material would in fact pose a grave and immediate danger to the security of the United States, that is, for purposes of this case they conceded that, but they have said that in fact disclosure of this material would not pose any such grave and immediate danger.
A. Mr. Justice, if they have conceded it, I am glad to proceed on that basis.
Q. I am not conceding it for them, but that has been my understanding of what the issue is.
A. I may say that their briefs were served on me within the last hour, which was entirely in accordance with this Court’s order, but I have not seen their briefs. I do not know what is in their briefs.
Q. In other words, I had thought in my analysis and I have not had the benefit of much more time than you have had, that this basically came down to a fact case, that the issues here are factual issues.
A. And that, Mr. Justice, is extremely difficult to—
Q. To argue here in this Court, I understand.
A. In open court.
Justice Harlan:
Q. I was going to say, qualifying that, except as to the scope of the judicial review of the executive determination, which I thought you presented.
A. Mr. Justice, it was the latter point for which I was seeking to get this, because our contention, particularly with respect to The Washington Post case is that the wrong standard has been used.
Now, with respect to the actual factual situations, the only thing I can do is point to the close brief, which I have filed, in which there are 10 specific items referred to. When I say specific items, I must make myself very clear. Some of those are collective. I have brought here, and perhaps you cannot see them, the 47 volumes that are supposed to be the background of this. They are included in the record of the Second Circuit Court of Appeals which has been filed with the Court. Let me say when we move onto this next item that it was inevitable that I delegate the question of preparing the supplemental statement which was covered by this Court’s order yesterday. This Court, as did the Second Circuit, referred to the materials specified in the special appendix in the Second Circuit, and to such additional items as might be included on a supplemental statement filed at 5 P.M. yesterday. I had nothing to do with preparing that supplemental statement. I had able and conscientious associates who did work on it. However, when I had a chance to see it last evening, particularly after the State Department called me at 8 or 9 o’clock at night and said they had four additional items, I said that the Court’s deadline was 5 P.M. and that I could not add any additional items, then I examined it. Here is a copy of it. I find it much too broad. In particular it has at the end a statement in view of the uncertainties as to the precise documents in defendants’ custody, and I say that has been an extreme difficulty in this matter—we do not know now, and never have known what the papers are.
