403 U.S.

713
91 S.Ct. 2140
29 L.Ed.2d 822

NEW YORK TIMES COMPANY, Petitioner,

v.
UNITED STATES. UNITED STATES, Petitioner, v. The
WASHINGTON POST COMPANY et al.
Nos. 1873, 1885.
Argued June 26, 1971.
Decided June 30, 1971.

Sol. Gen. Erwin N. Griswold, for the United States.

Alexander M. Bickel, New Haven, Conn., for the New York Times.
William R. Glendon, Washington, D.C., for the Washington Post Co.
PER CURIAM.

We granted certiorari, 403 U.S. 942, 943, 91 S.Ct. 2270, 2271, 29 L.Ed.2d 853
(1971) in these cases in which the United States seeks to enjoin the New York
Times and the Washington Post from publishing the contents of a classified
study entitled 'History of U.S. Decision-Making Process on Viet Nam Policy.'

'Any system of prior restraints of expression comes to this Court bearing a

heavy presumption against its constitutional validity.' Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); see also
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357
(1931). The Government 'thus carries a heavy burden of showing justification
for the imposition of such a restraint.' Organization for a Better Austin v. Keefe,
402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). The District
Court for the Southern District of New York in the New York Times case, 328
F.Supp. 324, and the District Court for the District of Columbia and the Court
of Appeals for the District of Columbia Circuit, 446 F.2d 1327, in the
Washington Post case held that the Government had not met that burden. We
agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is
therefore affirmed. The order of the Court of Appeals for the Second Circuit is
reversed, 444 F.2d 544, and the case is remanded with directions to enter a
judgment affirming the judgment of the District Court for the Southern District
of New York. The stays entered June 25, 1971, by the Court are vacated. The
judgments shall issue forthwith.

So ordered.

Judgment of the Court of Appeals for the District of Columbia Circuit affirmed;
order of the Court of Appeals for the Second Circuit reversed and case
remanded with directions.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring. DP
I adhere to the view that the Government's case against the Washington Post
should have been dismissed and that the injunction against the New York
Times should have been vacated without oral argument when the cases were
first presented to this Court. I believe that every moment's continuance of the
injunctions against these newspapers amounts to a flagrant, indefensible, and
continuing violation of the First Amendment. Furthermore, after oral argument,
I agree completely that we must affirm the judgment of the Court of Appeals
for the District of Columbia Circuit and reverse the judgment of the Court of
Appeals for the Second Circuit for the reasons stated by my Brothers
DOUGLAS and BRENNAN. In my view it is unfortunate that some of my
Brethren are apparently willing to hold that the publication of news may
sometimes be enjoined. Such a holding would make a shambles of the First
Amendment.

Our Government was launched in 1789 with the adoption of the Constitution.
The Bill of Rights, including the First Amendment, followed in 1791. Now, 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 publication of current news
of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the

Court, the Executive Branch seems to have forgotten the essential purpose and
history of the First Amendment. When the Constitution was adopted, many
people strongly opposed it because the document contained no Bill of Rights to
safeguard certain basic freedoms.1 They especially feared that the new powers
granted to a central government might be interpreted to permit the government

to curtail freedom of religion, press, assembly, and speech. In response to an

overwhelming public clamor, James Madison offered a series of amendments to
satisfy citizens that these great liberties would remain safe and beyond the
power of government to abridge. Madison proposed what later became the First
Amendment in three parts, two of which are set out below, and one of which
proclaimed: 'The people shall not be deprived or abridged of their right to
speak, to write, or to publish their sentiments; and the freedom of the press, as
one of the great bulwarks of liberty, shall be inviolable.'2 The amendments
were offered to curtail and restrict the general powers granted to the Executive,
Legislative, and Judicial Branches two years before in the original Constitution.
The Bill of Rights changed the original Constitution into a new charter under
which no branch of government could abridge the people's freedoms of press,
speech, religion, and assembly. Yet the Solicitor General argues and some
members of the Court appear to agree that the general powers of the
Government adopted in the original Constitution should be interpreted to limit
and restrict the specific and emphatic guarantees of the Bill of Rights adopted
later. I can imagine no greater perversion of history. Madison and the other
Framers of the First Amendment, able men that they were, wrote in language
they earnestly believed could never be misunderstood: 'Congress shall make no
law * * * abridging the freedom * * * of the press * * *.' Both the history and
language of the First Amendment support the view that the press must be left
free to publish news, whatever the source, without censorship, injunctions, or
prior restraints.
9

In the First Amendment the Founding Fathers gave the free press the protection
it must have to fulfill its essential role in our democracy. The press was to serve
the governed, not the governors. The Government's 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 free 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 sending 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 newspapers should be commended for serving the
purpose that the Founding Fathers saw so clearly. In revealing the workings of
government that led to the Vietnam war, the newspapers nobly did precisely
that which the Founders hoped and trusted they would do.

10

The Government's case here is based on premises entirely different from those
that guided the Framers of the First Amendment. The Solicitor General has

carefully and emphatically stated:

11

'Now, Mr. Justice (BLACK), your construction of * * * (the First Amendment)

is well known, and I certainly respect it. You say that no law means no law, and
that should be obvious. I can only say, Mr. Justice, that to me it is equally
obvious that 'no law' does not mean 'no law', and I would seek to persuade the
Court that that is true. * * * (T)here are other parts of the Constitution that
grant powers and responsibilities to the Executive, and * * * the First
Amendment was not intended to make it impossible for the Executive to
function or to protect the security of the United States.'3

12

And the Government argues in its brief that in spite of the First Amendment,
'(t)he authority of the Executive Department to protect the nation against
publication of information whose disclosure would endanger the national
security stems from two interrelated sources: the constitutional power of the
President over the conduct of foreign affairs and his authority as Commanderin-Chief.'4

13

In other words, we are asked to hold that despite the First Amendment's
emphatic command, the Executive Branch, the Congress, and the Judiciary can
make laws enjoining publication of current news and abridging freedom of the
press in the name of 'national security.' The Government does not even attempt
to rely on any act of Congress. Instead it makes the bold and dangerously
farreaching contention that the courts should take it upon themselves to 'make'
a law abridging freedom of the press in the name of equity, presidential power
and national security, 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.5 See concurring opinion of Mr. Justice DOUGLAS, post, at 721
722. To find 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 was injunctions
like those sought here that Madison and his collaborators intended to outlaw in
this Nation for all time.

14

The word 'security' is a broad, vague generality whose contours should not be
invoked to abrogate the fundamental law embodied in the First Amendment.
The guarding of military and diplomatic secrets at the expense of informed
representative government provides no real security for our Republic. The
Framers of the First Amendment, fully aware of both the need to defend a new
nation and the abuses of the English and Colonial Governments, sought to give

this new society strength and security by providing that freedom of speech,
press, religion, and assembly should not be abridged. This thought was
eloquently expressed in 1937 by Mr. Chief Justice Hughesgreat man and
great Chief Justice that he was when the Court held a man could not be
punished for attending a meeting run by Communists.
15

'The greater the importance of safeguarding the community from incitements to

the overthrow of our institutions by force and violence, the more imperative is
the need to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful means.
Therein lies the security of the Republic, the very foundation of constitutional
government.'6

16

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring .

17

While I join the opinion of the Court I believe it necessary to express my views
more fully.

18

It should be noted at the outset that the First Amendment provides that
'Congress shall make no law * * * abridging the freedom of speech, or of the
press.' That leaves, in my view, no room for governmental restraint on the
press.1

19

There is, moreover, no statute barring the publication by the press of the
material which the Times and the Post seek to use. Title 18 U.S.C. 793(e)
provides that '(w)hoever having unauthorized possession of, access to, or
control over any document, writing * * * 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 * * * the same to any person not entitled to receive it *
* * (s)hall be fined not more than $10,000 or imprisoned not more than ten
years, or both.'

20

The Government suggests that the word 'communicates' is broad enough to

encompass publication.

21

There are eight sections in the chapter on espionage and censorship, 792
799. In three of those eight 'publish' is specifically mentioned: 794(b) applies
to 'Whoever, in time of war, with intent that the same shall be communicated to

the enemy, collects, records, publishes, or communicates * * * (the disposition

of armed forces).'
22

Section 797 applies to whoever 'reproduces, publishes, sells, or gives away'

photographs of defense installations.

23

Section 798 relating to cryptography applies to whoever: 'communicates,

furnishes, transmits, or otherwise makes available * * * or publishes' the
described materials.2 (Emphasis added.)

24

Thus it is apparent that Congress was capable of and did distinguish between
publishing and communication in the various sections of the Espionage Act.

25

The other evidence that 793 does not apply to the press is a rejected version
of 793. That version read: 'During any national emergency resulting from a
war to which the United States is a party, or from threat of such a war, the
President may, by proclamation, declare the existence of such emergency and,
by proclamation, prohibit the publishing or communicating of, or the
attempting to publish or communicate any information relating to the national
defense which, in his judgment, is of such character that it is or might be useful
to the enemy.' 55 Cong.Rec. 1763. During the debates in the Senate the First
Amendment was specifically cited and that provision was defeated. 55
Cong.Rec. 2167.

26

Judge Gurfein's holding in the Times case that this Act does not apply to this
case was therefore preeminently sound. Moreover, the Act of September 23,
1950, in amending 18 U.S.C. 793 states in 1(b) that:

27

'Nothing in this Act shall be construed to authorize, require, or establish military

or civilian censorship or in any way to limit or infringe upon freedom of the
press or of speech as guaranteed by the Constitution of the United States and no
regulation shall be promulgated hereunder having that effect.' 64 Stat. 987.

28

Thus Congress has been faithful to the command of the First Amendment in
this area.

29

So any power that the Government possesses must come from its 'inherent
power.'

30

The power to wage war is 'the power to wage war successfully.' See Kiyoshi

Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed.
1774. But the war power stems from a declaration of war. The Constitution by
Art. I, 8, gives Congress, not the President, power '(t)o declare War.'
Nowhere are presidential wars authorized. We need not decide therefore what
leveling effect the war power of Congress might have.
31

These disclosures3 may have a serious impact. But that is no basis for
sanctioning a previous restraint on the press. As stated by Chief Justice Hughes
in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 719720, 51 S.Ct. 625, 632,
75 L.Ed. 1357:

32

'While reckless assaults upon public men, and efforts to bring obloquy upon
those who are endeavoring faithfully to discharge official duties, exert a baleful
influence and deserve the severest condemnation in public opinion, it cannot be
said that this abuse is greater, and it is believed to be less, than that which
characterized the period in which our institutions took shape. Meanwhile, the
administration of government has become more complex, the opportunities for
malfeasance and corruption have multiplied, crime has grown to most serious
proportions, and the danger of its protection by unfaithful officials and of the
impairment of the fundamental security of life and property by criminal
alliances and official neglect, emphasizes the primary need of a vigilant and
courageous press, especially in great cities. The fact that the liberty of the press
may be abused by miscreant purveyors of scandal does not make any the less
necessary the immunity of the press from previous restraint in dealing with
official misconduct.'

33

As we stated only the other day in Organization for a Better Austin v. Keefe,
402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 '(a)ny prior restraint on
expression comes to this Court with a 'heavy presumption' against its
constitutional validity.'

34

The Government says that it has inherent powers to go into court and obtain an
injunction to protect the national interest, which in this case is alleged to be
national security.

35

Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357,
repudiated that expansive doctrine in no uncertain terms.

36

The dominant purpose of the First Amendment was to prohibit the widespread
practice of governmental suppression of embarrassing information. It is
common knowledge that the First Amendment was adopted against the

widespread use of the common law of seditious libel to punish the

dissemination of material that is embarrassing to the powers-that-be. See T.
Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free
Speech in the United States, c. XIII (1941). The present cases will, I think, go
down in history as the most dramatic illustration of that principle. A debate of
large proportions goes on in the Nation over our posture in Vietnam. That
debate antedated the disclosure of the contents of the present documents. The
latter are highly relevant to the debate in progress.
37

Secrecy in government is fundamentally anti-democratic, perpetuating

bureaucratic errors. Open debate and discussion of public issues are vital to our
national health. On public questions there should be 'uninhibited, robust, and
wide-open' debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269270,
84 S.Ct. 710, 720721, 11 L.Ed.2d 686.

38

I would affirm the judgment of the Court of Appeals in the Post case, vacate the
stay of the Court of Appeals in the Times case and direct that it affirm the
District Court.

39

The stays is these cases that have been in effect for more than a week constitute
a flouting of the principles of the First Amendment as interpreted in Near v.
Minnesota ex rel. Olson.

40

Mr. Justice BRENNAN, concurring.

41

* 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 the
propriety, in the future, of issuing temporary stays and restraining orders to
block the publication of material sought to be suppressed by the Government.
So far as I can determine, never before has the United States sought to enjoin a
newspaper from publishing information in its possession. The relative novelty
of the questions presented, the necessary haste with which decisions were
reached, the magnitude of the interests asserted, and the fact that all the parties
have concentrated their arguments upon the question whether permanent
restraints were proper may have justified at least some of the 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 even 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
Amendment stands as an absolute bar to the imposition of judicial restraints in
circumstances of the kind presented by these cases.
II
42

The error that has pervaded these cases from the outset was the granting of any
injunctive relief whatsoever, interim or otherwise. The entire thrust of the
Government's claim throughout these cases has been that publication of the
material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national
interest in various ways. But the First Amendment tolerates absolutely no prior
judicial restraints of the press predicated upon surmise or conjecture that
untoward consequences may result.* Our cases, it is true, 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 overridden. Our cases have
thus far indicated that such cases may arise only when the Nation 'is at war,'
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470
(1919), 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.
Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357
(1931). Even if the present world situation were assumed to be tantamount to a
time of war, or if the power of presently available armaments would justify
even in peacetime the suppression of information that would set in motion a
nuclear holocaust, in neither of these actions has the Government presented or
even alleged that publication of items from or based upon the material at issue
would cause the happening of an event of that nature. '(T)he chief purpose of
(the First Amendment's) guaranty (is) to prevent previous restraints upon
publication.' Near v. Minnesota ex rel. Olson, supra, at 713, 51 S.Ct., at 630.
Thus, only governmental allegation and proof that publication must inevitably,
directly, and immediately cause the occurrence of an event kindred to
imperiling the safety of a transport already at sea can support even the issuance
of an interim restraining order. In no event may mere conclusions be sufficient:
for if the Executive Branch seeks judicial aid in preventing publication, it must
inevitably submit the basis upon which that aid is sought to scrutiny by the
judiciary. And therefore, every restraint issued in this case, whatever its form,
has violated the First Amendmentand not less so because that restraint was
justified as necessary to afford the courts an opportunity to examine the claim
more thoroughly. Unless and until the Government has clearly made out its
case, the First Amendment commands that no injunction may issue.

43

Mr. Justice STEWART, with whom Mr. Justice WHITE joins, concurring.

43
44

Mr. Justice STEWART, with whom Mr. Justice WHITE joins, concurring.
In the governmental structure created by our Constitution, the Executive is
endowed with enormous power in the two related areas of national defense and
international relations. This power, largely unchecked by the Legislative 1 and
Judicial2 branches, has been pressed to the very hilt since the advent of the
nuclear missile age. For better of for worse, the simple fact is that a President of
the United States possesses vastly greater constitutional independence in these
two vital areas of power than does, say, a prime minister of a country with a
parliamentary form of government.

45

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 affairs may lie in an
enlightened citizenryin an informed and critical public opinion which alone
can here protect the values of democratic government. 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 people.

46

Yet it is elementary that the successful conduct of international diplomacy and

the maintenance of an effective national defense require both confidentiality
and secrecy. Other nations can hardly deal with this Nation in an atmosphere 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 if those charged with their
formulation could not communicate with each other freely, frankly, and in
confidence. In the area of basic national defense the frequent need for absolute
secrecy is, of course, self-evident.

47

I think there can be but one answer to this dilemma, if dilemma it be. The
responsibility must be where the power is.3 If the Constitution gives the
Executive a large degree of unshared power in the conduct of foreign affairs
and the maintenance of our national defense, then under the Constitution the
Executive must have the largely unshared duty to determine and preserve the
degree of internal security necessary to exercise that power successfully. It is an
awesome responsibility, requiring judgment and wisdom of a high order. I
should suppose that moral, political, and practical considerations would dictate
that a very first principle of that wisdom would be an insistence upon avoiding
secrecy for its own sake. For when everything is classified, then nothing is
classified, and the system becomes one to be disregarded by the cynical or the
careless, and to be manipulated by those intent on self-protection or self-

promotion. I should suppose, in short, that the hallmark of a truly effective

internal security system would be the maximum possible disclosure,
recognizing that secrecy can best be preserved only when credibility is truly
maintained. But be that as it may, it is clear to me that it is the constitutional
duty of the Executiveas a matter of sovereign prerogative and not as a matter
of law as the courts know lawthrough the promulgation and enforcement of
executive regulations, to protect the confidentiality necessary to carry out its
responsibilities in the fields of international relations and national defense.
48

This is not to say that Congress and the courts have no role to play.
Undoubtedly Congress has the power to enact specific and appropriate criminal
laws to protect government property and preserve government secrets. Congress
has passed such laws, and several of them are of very colorable relevance to the
apparent circumstances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to decide the applicability of
the criminal law under which the charge is brought. Moreover, if Congress
should pass a specific law authorizing civil proceedings in this field, the courts
would likewise have the duty to decide the constitutionality of such a law as
well as its applicability to the facts proved.

49

But in the cases before us we are asked neither to construe specific regulations
nor to apply specific laws. We are asked, instead, to perform a function that the
Constitution gave to the Executive, not the Judiciary. We are asked, quite
simply, to prevent the publication by two newspapers of material that the
Executive Branch insists should not, in the national interest, be published. I am
convinced that the Executive is correct with respect to some of the documents
involved. But I cannot say that disclosure 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.

50

Mr. Justice WHITE, with whom Mr. Justice STEWART joins, concurring.

51

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.
52

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.

53

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.

54

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.

55

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.

56

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

57

The Criminal Code contains numerous provisions potentially relevant to these

cases. Section 7975 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.

58

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 selfevident, 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, 61 S.Ct. 429,
434, 85 L.Ed. 488 (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, 61 S.Ct., at 434. 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
59

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, 585586, 72 S.Ct. 863, 865866, 96 L.Ed.
1153 (1953); see also id., at 593628, 72 S.Ct., at 888928 (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.

60

Mr. Justice MARSHALL, concurring.

61

The Government contends that the only issue in these cases is whether 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 States." Brief for the United
States 7. With all due respect, I believe the ultimate issue in this case 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.
62

In these cases there is no problem concerning the President's power to classify

information as 'secret' or 'top secret.' Congress has specifically recognized
Presidential authority, which has been formally exercised in Exec. Order 10501
(1953), to classify documents and information. See, e.g., 18 U.S.C. 798; 50
U.S.C. 783.1 Nor is there any issue here regarding the President's power as
Chief Executive and Commander in Chief to protect national security by
disciplining employees who disclose information and by taking precautions to
prevent leaks.

63

The problem here is whether in these particular cases the Executive Branch has
authority to invoke the equity jurisdiction of the courts to protect what it
believes to be the national interest. See In re Debs, 158 U.S. 564, 584, 15 S.Ct.
900, 906, 39 L.Ed. 1092 (1895). The Government argues that in addition to the
inherent power of any government to protect itself, the President's power to
conduct foreign affairs and his position as Commander in Chief give him
authority to impose censorship on the press to protect his ability to deal
effectively with foreign nations and to conduct the military affairs of the
country. Of course, it is beyond cavil that the President has broad powers by
virtue of his primary responsibility for the conduct of our foreign affairs and his
position as Commander in Chief. Chicago & Southern Air Lines v. Waterman
S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Kiyoshi
Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed.
1774 (1943); United States v. CurtissWright Export Corp., 299 U.S. 304, 57
S.Ct. 216, 81 L.Ed. 255 (1936).2 And in some situations it may be that under
whatever inherent powers the Government may have, as well as the implicit
authority derived from the President's mandate to conduct foreign affairs and to
act as Commander in Chief, there is a basis for the invocation of the equity
jurisdiction of this Court as an aid to prevent the publication of material
damaging to 'national security,' however that term may be defined.

64

It would, however, be utterly inconsistent with the concept of separation of

powers for this Court to use its power of contempt to prevent behavior that
Congress has specifically declined to prohibit. There would be a similar
damage to the basic concept of these co-equal branches of Government if when
the Executive Branch has adequate authority granted by Congress to protect
'national security' it can choose instead to invoke the contempt power of a court

to enjoin the threatened conduct. The Constitution provides that Congress shall
make laws, the President execute laws, and courts interpret laws. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153
(1952). It did not provide for government by injunction in which the courts and
the Executive Branch can 'make law' without regard to the action of Congress.
It may be more convenient for the Executive Branch if it need only convince a
judge to prohibit conduct rather than ask the Congress to pass a law, and it may
be more convenient to enforce a contempt order than to seek a criminal
conviction in a jury trial. Moreover, it may be considered politically wise to get
a court to share the responsibility for arresting those who the Executive Branch
has probable cause to believe are violating the law. But convenience and
political considerations of the moment do not justify a basic departure from the
principles of our system of government.
65

In these cases we are not faced with a situation where Congress has failed to
provide the Executive with broad power to protect the Nation from disclosure
of damaging state secrets. Congress has on several occasions given extensive
consideration to the problem of protecting the military and strategic secrets of
the United States. This consideration has resulted in the enactment of statutes
making it a crime to receive, disclose, communicate, withhold, and publish
certain documents, photographs, instruments, appliances, and information. The
bulk of these statutes is found in chapter 37 of U.S.C., Title 18, entitled
Espionage and Censorship.3 In that chapter, Congress has provided penalties
ranging from a $10,000 fine to death for violating the various statutes.

66

Thus it would seem that in order for this Court to issue an injunction it would
require a showing that such an injunction would enhance the already existing
power of the Government to act. See People ex rel. Bennett v. Laman, 277 N.Y.
368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of
equity will not do a useless thing just as it is a traditional axiom that equity will
not enjoin the commission of a crime. See Z. Chafee & E. Re, Equity 935954
(5th ed. 1967); 1 H. Joyce, Injunctions 5860a (1909). Here there has been
no attempt to make such a showing. The Solicitor General does not even
mention in his brief whether the Government considers that there is probable
cause to believe a crime has been committed or whether there is a conspiracy to
commit future crimes.

67

If the Government had attempted to show that there was no effective remedy
under traditional criminal law, it would have had to show that there is no
arguably applicable statute. Of course, at this stage this Court could not and
cannot determine whether there has been a violation of a particular statute or
decide the constitutionality of any statute. Whether a good-faith prosecution

could have been instituted under any statute could, however, be determined.
68

At least one of the many statutes in this area seems relevant to these cases.
Congress has provided in 18 U.S.C. 793(e) that whoever 'having unauthorized
possession of, access to, or control over any document, writing, code book,
signal book * * * 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 * * * 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 *
* * (s)hall be fined not more than $10,000 or imprisoned not more than ten
years, or both.' Congress has also made it a crime to conspire to commit any of
the offenses listed in 18 U.S.C. 793(e).

69

It is true that Judge Gurfein found that Congress had not made it a crime to
publish the items and material specified in 793(e). He found that the words
'communicates, delivers, transmits * * *' did not refer to publication of
newspaper stories. And that view has some support in the legislative history
and conforms with the past practice of using the statute only to prosecute those
charged with ordinary espionage. But see 103 Cong.Rec. 10449 (remarks of
Sen. Humphrey). Judge Gurfein's view of the Statute is not, however, the only
plausible construction that could be given. See my Brother WHITE's
concurring opinion.

70

Even if it is determined that the Government could not in good faith bring
criminal prosecutions against the New York Times and the Washington Post, it
is clear that Congress has specifically rejected passing legislation that would
have clearly given the President the power he seeks here and made the current
activity of the newspapers unlawful. When Congress specifically declines to
make conduct unlawful it is not for this Court to redecide those issuesto
overrule Congress. See Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
72 S.Ct. 863, 96 L.Ed. 1153 (1952).

71

On at least two occasions Congress has refused to enact legislation that would
have made the conduct engaged in here unlawful and given the President the
power that he seeks in this case. In 1917 during the debate over the original
Espionage Act, still the basic provisions of 793, Congress rejected a proposal
to give the President in time of war or threat of war authority to directly
prohibit by proclamation the publication of information relating to national
defense that might be useful to the enemy. The proposal provided that:

72

'During any national emergency resulting from a war to which the United States
is a party, or from threat of such a war, the President may, by proclamation,
declare the existence of such emergency and, by proclamation, prohibit the
publishing or communicating of, or the attempting to publish or communicate
any information relating to the national defense which, in his judgment, is of
such character that it is or might be useful to the enemy. Whoever violates any
such prohibition shall be punished by a fine of not more than $10,000 or by
imprisonment for not more than 10 years, or both: Provided, that nothing in this
section shall be construed to limit or restrict any discussion, comment, or
criticism of the acts or policies of the Government or its representatives or the
publication of the same.' 55 Cong.Rec. 1763.

73

Congress rejected this proposal after war against Germany had been declared
even though many believed that there was a grave national emergency and that
the threat of security leaks and espionage was serious. The Executive Branch
has not gone to Congress and requested that the decision to provide such power
be reconsidered. Instead, the Executive Branch comes to this Court and asks
that it be granted the power Congress refused to give.

74

In 1957 the United States Commission on Government Security found that '(a)
irplane journals, scientific periodicals, and even the daily newspaper have
featured articles containing information and other data which should have been
deleted in whole or in part for security reasons.' In response to this problem the
Commission proposed that 'Congress enact legislation making it a crime for
any person willfully to disclose without proper authorization, for any purpose
whatever, information classified 'secret' or 'top secret,' knowing, or having
reasonable grounds to believe, such information to have been so classified.'
Report of Commission on Government Security 619620 (1957). After
substantial floor discussion on the proposal, it was rejected. See 103 Cong.Rec.
1044710450. If the proposal that Sen. Cotton championed on the floor had
been enacted, the publication of the documents involved here would certainly
have been a crime. Congress refused, however, to make it a crime. The
Government is here asking this Court to remake that decision. This Court has
no such power.

75

Either the Government has the power under statutory grant to use traditional
criminal law to protect the country or, if there is no basis for arguing that
Congress has made the activity a crime, it is plain that Congress has
specifically refused to grant the authority the Government seeks from this
Court. In either case this Court does not have authority to grant the requested
relief. It is not for this Court to fling itself into every breach perceived by some
Government official nor is it for this Court to take on itself the burden of

enacting law, especially a law that Congress has refused to pass.

76

I believe that the judgment of the United States Court of Appeals for the
District of Columbia Circuit should be affirmed and the judgment of the United
States Court of Appeals for the Second Circuit should be reversed insofar as it
remands the case for further hearings.

77

Mr. Chief Justice BURGER, dissenting.

78

So clear are the constitutional limitations on prior restraint against expression,

that from the time of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct.
625, 75 L.Ed. 1357 (1931), until recently in Organization for a Better Austin v.
Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), we have had little
occasion to be concerned with cases involving prior restraints against news
reporting on matters of public interest. There is, therefore, little variation
among the members of the Court in terms of resistance to prior restraints
against publication. Adherence to this basic constitutional principle, however,
does not make these cases simple ones. In these cases, the imperative of a free
and unfettered press comes into collision with another imperative, the effective
functioning of a complex modern government and specifically the effective
exercise of certain constitutional powers of the Executive. Only those who view
the First Amendment as an absolute in all circumstancesa view I respect, but
rejectcan find such cases as these to be simple or easy.

79

These cases are not simple for another and more immediate reason. We do not
know the facts of the cases. No District Judge knew all the facts. No Court of
Appeals Judge knew all the facts. No member of this Court knows all the facts.

80

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?

81

I suggest we are in this posture because these cases have been conducted in
unseemly haste. Mr. Justice HARLAN covers the chronology of events
demonstrating the hectic pressures under which these cases have been
processed and I need not restate them. The prompt settling of these cases
reflects our universal abhorrence of prior restraint. But prompt judicial action
does not mean unjudicial haste.

82

Here, moreover, the frenetic haste is due in large part to the manner in which
the Times proceeded from the date it obtained the purloined documents. It

seems reasonably clear now that the haste precluded reasonable and deliberate
judicial treatment of these cases and was not warranted. The precipitate 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 issue.
83

The newspapers make a derivative claim under the First Amendment; they
denominate this right as the public 'right to know'; by implication, the Times
asserts a sole trusteenship of that right by virtue of its journalistic 'scoop.' The
right is asserted as an absolute. Of course, the First Amendment 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 theater if there was no fire.
There are other exceptions, some of which Chief Justice Hughes mentioned by
way of example in Near v. Minnesota ex rel. Olson. There are no doubt other
exceptions no one has had occasion to describe or discuss. Conceivably such
exceptions may be lurking in these cases and would have been flushed had they
been properly considered in the trial courts, free from unwarranted deadlines
and frenetic pressures. An issue of this importance should be tried and heard in
a judicial atmosphere conducive to thoughtful, reflective deliberation,
especially when haste, in terms of hours, is unwarranted in light of the long
period the Times, by its own choice, deferred publication.1

84

It is not disputed that the Times has had unauthorized possession of the
documents for three to four months, during which it has had its expert analysts
studying them, presumably digesting them and preparing the material 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 publication for purposes it
considered proper and thus public knowledge was delayed. No doubt this was
for a good reason; the analysis of 7,000 pages of complex material drawn from
a vastly greater volume of material would inevitably take time and the writing
of good news stories takes time. But why should the United States
Government, from whom this information was illegally acquired by someone,
along with all the counsel, trial judges, and appellate judges be placed under
needless pressure? After these months of deferral, the alleged 'right to know'
has somehow and suddenly become a right that must be vindicated instanter.

85

Would it have been unreasonable, since the newspaper could anticipate 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 security was not in fact
jeopardized, much of the material could not doubt have been declassified, since
it spans a period ending in 1968. With such an approachone that great
newspapers have in the past practiced and stated editorially to be the duty of an

honorable pressthe newspapers and Government might well have narrowed

the area of disagreement as to what was and was not publishable, leaving the
remainder to be resolved in orderly litigation, if necessary. To me it is hardly
believable that a newspaper long regarded as a great institution in American life
would fail to perform one of the basic and simple duties of every citizen with
respect to the discovery or possession of stolen property or secret government
documents. That duty, I had thought perhaps naivelywas to report forthwith,
to responsible 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 issues. If the action of
the judges up to now has been correct, that result is sheer happenstance.2
86

Our grant of the writ of certiorari before final judgment in the Times case
aborted the trial in the District Court before it had made a complete record
pursuant to the mandate of the Court of Appeals for the Second Circuit.

87

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 adequate record, and
surely without time for adequate treatment either in the prior 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 pointed 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 were not familiar with them. This Court is in no better
posture. I agree generally with Mr. Justice HARLAN and Mr. Justice
BLACKMUN but I am not prepared to reach the merits.3

88

I would affirm the Court of Appeals for the Second Circuit and allow the
District Court to complete the trial aborted by our grant of certiorari,
meanwhile preserving the status quo in the post case. I would direct that the
District Court on remand give priority to the Times case to the exclusion of all
other business of that court but I would not set arbitrary deadlines.

89

I should add that I am in general agreement with much of what Mr. Justice
WHITE has expressed with respect to penal sanctions concerning
communication or retention of documents or information relating to the
national defense.

90

We all crave speedier judicial processes but when judges are pressured as in
these cases the result is a parody of the judicial function.

91

Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice
BLACKMUN join, dissenting.

92

These cases forcefully call to mind the wise admonition of Mr. Justice Holmes,
dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400401,
24 S.Ct. 436, 468, 48 L.Ed. 679 (1904):

93

'Great cases, like hard cases, make bad law. For great cases are called great, not
by reason of their real importance in shaping the law of the futture, but because
of some accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem doubtful, and
before which even well settled principles of law will bend.'

94

With all respect, I consider that the Court has been almost irresponsibly
feverish in dealing with these cases.

95

Both the Court of Appeals for the Second Circuit and the Court of Appeals for
the District of Columbia Circuit rendered judgment on June 23. The New York
Times' petition for certiorari, its motion for accelerated consideration thereof,
and its application for interim relief were filed in this Court on June 24 at about
11 a.m. The application of the United States for interim relief in the Post case
was also filed here on June 24 at about 7:15 p.m. This Court's order setting a
hearing before us on June 26 at 11 a.m., a course which I joined only to avoid
the possibility of even more peremptory action by the Court, was issued less
than 24 hours before. The record in the Post case was filed with the Clerk
shortly before 1 p.m. on June 25; the record in the Times case did not arrive
until 7 or 8 o'clock that same night. The briefs of the parties were received less
than two hours before argument on June 26.

96

This frenzied train of events took place in the name of the presumption 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 timetable. In order to
decide the merits of these cases properly, some or all of the following questions
should have been faced:

97

1. Whether the Attorney General is authorized to bring these suits in the name
of the United States. Compare In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed.
1092 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72
S.Ct. 863, 96 L.Ed. 1153 (1952). This question involves as well the

construction and validity of a singularly opaque statutethe Espionage Act, 18

U.S.C. 793(e).
98

2. Whether the First Amendment permits the federal courts to enjoin

publication of stories which would present a serious threat to national security.
See Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75
L.Ed. 1357 (1931) (dictum).

99

3. Whether the threat to publish highly secret documents is of itself a sufficient

implication of national security to justify an injunction on the theory that
regardless of the contents of the documents harm enough results simply from
the demonstration of such a breach of secrecy.

100 4. Whether the unauthorized disclosure of any of these particular documents

would seriously impair the national security.
101 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.
102 6. Whether the newspapers are entitled to retain and use the documents
notwithstanding the seemingly uncontested facts that the documents, or the
originals of which they are duplicates, were purloined from the Government's
possession and that the newspapers received them with knowledge that they
had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129
U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).
103 7. Whether the threatened harm to the national security or the Government's
possessory interest in the documents justifies the issuance of an injunction
against publication in light of
104 a. The strong First Amendment policy against prior restraints on publication; b.
The doctrine against enjoining conduct in violation of criminal statutes; and
105 c. The extent to which the materials at issue have apparently already been
otherwise disseminated.
106 These are difficult questions of fact, of law, and of judgment; the potential
consequences of erroneous decision are enormous. The time which has been
available to us, to the lower courts,* and to the parties has been wholly
inadequate for giving these cases the kind of consideration they deserve. It is a

reflection on the stability of the judicial process that these great issuesas
important as any that have arisen during my time on the Courtshould have
been decided under the pressures engendered by th torrent of publicity that has
attended these litigations from their inception.
107 Forced as I am to reach the merits of these cases, I dissent from the opinion and
judgments of the Court. Within the severe limitations imposed 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.
108 It is a sufficient basis for affirming the Court of Appeals for the Second Circuit
in the Times litigation to observe that its order must rest on the conclusion that
because of the time elements the Government had not been given an adequate
opportunity to present its case to the District Court. At the least this conclusion
was not an abuse of discretion.
109 In the Post litigation the Government had more time to prepare; this was
apparently the basis for the refusal of the Court of Appeals for the District of
Columbia Circuit on rehearing to conform its judgment to that of the Second
Circuit. But I think there is another and more fundamental reason why this
judgment cannot standa reason which also furnishes an additional ground for
not reinstating the judgment of the District Court in the Times litigation, set
aside by the Court of Appeals. It is plain to me that the scope of the judicial
function in passing upon the activities of the Executive Branch of the
Government in the field of foreign affairs is very narrowly restricted. This view
is, I think, dictated by the concept of separation of powers upon which our
constitutional system rests.
110 In a speech on the floor of the House of Representatives, Chief Justice John
Marshall, then a member of that body, stated:
111 'The President is the sole organ of the nation in its external relations, and its
sole representative with foreign nations.' 10 Annals of Cong. 613.
112 From that time, shortly after the founding of the Nation, to this, there has been
no substantial challenge to this description of the scope of executive power. See
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319321, 57
S.Ct. 216, 220221, 81 L.Ed. 255 (1936), collecting authorities.
113 From this constitutional primacy in the field of foreign affairs, it 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 negotiation of the Jay Treaty:
114 'The nature of foreign negotiations requires caution, and their success must
often depend on secrecy; and even when brought to a conclusion a full
disclosure of all the measures, demands, or eventual concessions which may
have been proposed or contemplated would be extremely impolitic; for this
might have a pernicious influence on future negotiations, or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers.' 1 J.
Richardson, Messages and Papers of the Presidents 194195 (1896).
115 The power to evaluate the 'pernicious influence' of premature disclosure is not,
however, lodged in the Executive alone. I agree that, in performance of its duty
to protect the values of the First Amendment against political pressures, the
judiciary must review the initial Executive determination to the point of
satisfying itself that the subject matter of the dispute does lie within the proper
compass of the President's foreign relations power. Constitutional
considerations forbid 'a complete abandonment of judicial control.' Cf. United
States v. Reynolds, 345 U.S. 1, 8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953).
Moreover the judiciary may properly insist that the determination that
disclosure of the subject matter would irreparably impair the national security
be made by the head of the Executive Department concernedhere the
Secretary of State or the Secretary of Defense after actual personal
consideration by that officer. This safeguard is required in the analogous area of
executive claims of privilege for secrets of state. See id., at 8 and n. 20, 73
S.Ct., at 532; Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 638 (House
of Lords).
116 But in my judgment the judiciary may not properly go beyond these two
inquiries and redetermine for itself the probable impact of disclosure on the
national security.
117 '(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. They are and should be
undertaken only by those directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and have long been held to belong
in the domain of political power not subject to judicial intrusion or inquiry.'
Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S.

103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948) (Jackson J.).
118 Even if there is some room for the judiciary to override the executive
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 conclusions of the Executive were given
even the deference owing to an administrative agency, much less that owing to
a co-equal branch of the Government operating within the field of its
constitutional prerogative.
119 Accordingly, I would vacate the judgment of the Court of Appeals for the
District of Columbia Circuit on this ground and remand the case for further
proceedings in the District Court. Before the commencement of such further
proceedings, due opportunity should be afforded the Government for procuring
from the Secretary of State or the Secretary of Defense or both an expression of
their views on the issue of national security. The ensuing review by the District
Court should be in accordance with the views expressed in this opinion. And
for the reasons stated above I would affirm the judgment of the Court of
Appeals for the Second Circuit.
120 Pending further hearings in each case conducted under the appropriate ground
rules, I would continue the restraints on publication. I cannot believe that the
doctrine prohibiting prior restraints reaches to the point of preventing courts
from maintaining the status quo long enough to act responsibly in matters of
such national importance as those involved here.
121 Mr. Justice BLACKMUN, dissenting.
122 I join Mr. Justice HARLAN in his dissent. I also am in substantial accord with
much that Mr. Justice WHITE says, by way of admonition, in the latter part of
his opinion.
123 At this point the focus is on only the comparatively few documents specified by
the Government as critical. So far as the other materialvast in amountis
concerned, let it be published and published forthwith if the newspapers, once
the strain is gone and the sensationalism is eased, still feel the urge so to do.
124 But we are concerned here with the few documents specified from the 47
volumes. Almost 70 years ago Mr. Justice Holmes, dissenting in a celebrated
case, observed:

125 'Great cases, like hard cases, make bad law. For great cases are called 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 immediate interests exercise a kind of
hydraulic pressure * * *.' Northern Securities Co. v. United States, 193 U.S.
197, 400401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904).
126 The present cases, if not great, are at least unusual in their posture and
implications, and the Holmes observation certainly has pertinent application.
127 The New York Times clandestinely devoted a period of three months to
examining the 47 volumes that came into its unauthorized possession. Once it
had begun publication of material from those volumes, the New York case now
before us emerged. It immediately assumed, and ever since has maintained, a
frenetic pace and character. Seemingly once publication started, the material
could not be made public fast enough. Seemingly, from then on, every deferral
or delay, by restraint or otherwise, was abhorrent and was to be deemed
violative of the First Amendment and of the public's 'right immediately to
know.' Yet that newspaper stood before us at oral argument and professed
criticism of the Government for not lodging its protest earlier than by a
Monday telegram following the initial Sunday publication.
128 The District of Columbia case is much the same.
129 Two federal district courts, two United States courts of appeals, and this Court
within a period of less than three weeks from inception until todayhave
been pressed into hurried decision of profound constitutional issues on
inadequately developed and largely assumed facts without the careful
deliberation that, one would hope, should characterize the American judicial
process. There has been much writing about the law and little knowledge and
less digestion of the facts. In the New York case the judges, both trial and
appellate, had not yet examined the basic material when the case was brought
here. In the District of Columbia case, little more was done, and what was
accomplished in this respect was only on required remand, with the Washington
Post, on the axcuse that it was trying to protect its source of information,
initially refusing to reveal what material it actually possessed, and with the
District Court forced to make assumptions as to that possession.
130 With such respect as may be due to the contrary view, this, in my opinion, is not
the way to try a lawsuit of this magnitude and asserted importance. It is not the
way for federal courts to adjudicate, and to be required to adjudicate, issues that

allegedly concern the Nation's vital welfare. The country would be none the
worse off were the cases tried quickly, to be sure, but in the customary and
properly deliberative manner. The most recent of the material, it is said, dates
no later than 1968, already about three years ago, and the Times itself took
three months to formulate its plan of procedure and, thus, deprived its public
for that period.
131 The First Amendment, after all, is only one part of an entire Constitution.
Article II of the great document vests in the Executive Branch primary power
over the conduct of foreign affairs and places in that branch the responsibility
for the Nation's safety. Each provision of the Constitution is important, and I
cannot subscribe to a doctrine of unlimited absolutism for the First Amendment
at the cost of downgrading other provisions. First Amendment absolutism has
never commanded a majority of this Court. See, for example, Near v.
Minnesota, ex rel. Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357
(1931), and Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63
L.Ed. 470 (1919). What is needed here is a weighing, upon properly developed
standards, of the broad right of the press to print and of the very narrow right of
the Government to prevent. Such standards are not yet developed. The parties
here are in disagreement as to what those standards should be. But even the
newspapers concede that there are situations where restraint is in order and is
constitutional. Mr. Justice Holmes gave us a suggestion when he said in
Schenck,
132 'It is a question of proximity and degree. When a nation is at war many things
that might be said in time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that no Court could
regard them as protected by any constitutional right.' 249 U.S., at 52, 39 S.Ct.,
at 249.
133 I therefore would remand these cases to be developed expeditiously, of course,
but on a schedule permitting the orderly presentation of evidence from both
sides, with the use of discovery, if necessary, as authorized by the rules, and
with the preparation of briefs, oral argument, and court opinions of a quality
better than has been seen to this point. In making this last statement, I criticize
no lawyer or judge. I know from past personal experience the agony of time
pressure in the preparation of litigation. But these cases and the issues involved
and the courts, including this one, deserve better than has been produced thus
far.
134 It may well be that if these cases were allowed to develop as they should be
developed, and to be tried as lawyers should try them and as courts should hear

them, free of pressure and panic and sensationalism, other light would be shed
on the situation and contrary considerations, for me, might prevail. But that is
not the present posture of the litigation.
135

The Court, however, decides the cases today the other way. I therefore add one
final comment.

136 I strongly urge, and sincerely hope, that these two newspapers will be fully
aware of their ultimate responsibilities to the United States of America. Judge
Wilkey, dissenting in the District of Columbia case, after a review of only the
affidavits before his court (the basic papers had not then been made available
by either party), concluded that there were a number of examples of documents
that, if in the possession of the Post, and if published, 'could clearly result in
great harm to the nation,' and he defined 'harm' to 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 * * *.' I, for one, have
now been able to give at least some cursory study not only to the affidavits, but
to the material itself. I regreat to say that from this examination I fear that Judge
Wilkey's statements have possible foundation. I therefore share his concern. I
hope that damage has not already been done. If, however, damage has been
done, and if, with the Court's action today, these newspapers proceed to publish
the critical documents and there results therefrom 'the death of soldiers, the
destruction of alliances, the greatly increased difficulty of negotiation with our
enemies, the inability of our diplomats to negotiate,' to which list I might add
the factors of prolongation of the war and of further delay in the freeing of
United States prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.

In introducing the Bill of Rights in the House of Representatives, Madison said:

'(B)ut I believe that the great mass of the people who opposed (the
Constitution), disliked it because it did not contain effectual provisions against
the encroachments on particular rights * * *.' 1 Annals of Cong. 433.
Congressman Goodhue added: '(I)t is the wish of many of our constituents, that
something should be added to the Constitution, to secure in a stronger manner
their liberties from the inroads of power.' Id., at 426.

The other parts were:

'The civil rights of none shall be abridged on account of religious belief or
worship, nor shall any national religion be established, nor shall the full and
equal rights of conscience be in any manner, or on any pretext, infringed.'

'The people shall not be restrained from peaceably assembling and consulting
for their common good; nor from applying to the Legislature by petitions, or
remonstrances, for redress of their grievances.' 1 Annals of Cong. 434.
3

Tr. of Oral Arg. 76.

Brief for the United States 1314.

Compare the views of the Solicitor General with those of James Madison, the
author of the First Amendment. When speaking of the Bill of Rights in the
House of Representatives, Madison said: 'If they (the first ten amendments) are
incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power in the
Legislative or Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights.' 1 Annals of Cong. 439.

De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.

See Beauharnais v. Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919
(dissenting opinion of Mr. Justice Black), 284, 72 S.Ct. 744 (my dissenting
opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1
L.Ed.2d 1498 (my dissenting opinion which Mr. Justice Black joined); Yates v.
United States, 354 U.S. 298, 339, 77 S.Ct. 1064, 1087, 1 L.Ed.2d 1356
(separate opinion of Mr. Justice Black which I joined); New York Times Co. v.
Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (concurring
opinion of Mr. Justice Black which I joined); Garrison v. Louisiana, 379 U.S.
64, 80, 85 S.Ct. 209, 218, 13 L.Ed.2d 125 (my concurring opinion which Mr.
Justice Black joined).

These documents contain data concerning the communications system of the

United States, the publication of which is made a crime. But the criminal
sanction is not urged by the United States as the basis of equity power.

There are numerous sets of this material in existence and they apparently are
not under any controlled custody. Moreover, the President has sent a set to the
Congress. We start then with a case where there already is rather wide
distribution of the material that is destined for publicity, not secrecy. I have
gone over the material listed in the in camera brief of the United States. It is all
history, not future events. None of it is more recent than 1968.

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and
similar cases regarding temporary restraints of allegedly obscene materials are

not in point. For those cases rest upon the proposition that 'obscenity is not
protected by the freedoms of speech and press.' Roth v. United States, 354 U.S.
476, 481, 77 S.Ct. 1304, 1307, 1 L.Ed.2d 1498 (1957). Here there is no
question but that the material sought to be suppressed is within the protection of
the First Amendment; the only question is whether, notwithstanding that fact,
its publication may be enjoined for a time because of the presence of an
overwhelming national interest. Similarly, copyright cases have no pertinence
here: the Government is not asserting an interest in the particular form of words
chosen in the documents, but is seeking to suppress the ideas expressed therein.
And the copyright laws, of course, protect only the form of expression and not
the ideas expressed.
1

The President's power to make treaties and to appoint ambassadors is, of

course, limited by the requirement of Art. II, 2, of the Constitution that he
obtain the advice and consent of the Senate. Article I, 8, empowers Congress
to 'raise and support Armies,' and 'provide and maintain a Navy.' And, of
course, Congress alone can declare war. This power was last exercised almost
30 years ago at the inception of World War II. Since the end of that war in
1945, the Armed Forces of the United States have suffered approximately half a
million casualties in various parts of the world.

See Chicago & Southern Air Lines Inc. v. Waterman S.S. Corp., 333 U.S. 103,
68 S.Ct. 431, 92 L.Ed. 568; Kiyoshi Hirabayashi v. United States, 320 U.S. 81,
63 S.Ct. 1375, 87 L.Ed. 1774; United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; cf. Mora v. McNamara, 389 U.S.
934, 88 S.Ct. 282, 19 L.Ed.2d 287 (Stewart, J., dissenting).

'It is quite apparent that if, in the maintenance of our international relations,
embarrassmentperhaps serious embarrassmentis to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord
to the President a degree of discretion and freedom from statutory restriction
which would not be admissible were domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time
of war. He has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the premature
disclosure of it productive of harmful results. Indeed, so clearly is this true that
the first President refused to accede to a request to lay before the House of
Representatives the instructions, correspondence and documents relating to the
negotiation of the Jay Treatya refusal the wisdom of which was recognized
by the House itself and has never since been doubted. * * *' United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed.
255.
1

The Congress has authorized a strain of prior restraints against private parties in
certain instances. The National Labor Relations Board routinely issues ceaseand-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, 89 S.Ct. 1918, 19411943, 23 L.Ed.2d 547 (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 L. A. Westermann Co.
v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499 (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.

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.'

'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.

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.

Title 18 U.S.C. 797 provides:

'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.'

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 '(t)his bill make it a crime to reveal the methods, techniques,
and mate riel 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 non-employees 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).

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 '(i)f 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., 89 (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, 61
S.Ct. 429, 85 L.Ed. 488 (1941). But that case arose under other parts of the
predecessor to 793, see 312 U.S., at 2122, 61 S.Ct., at 430432parts
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 * * *.'

See n. 3, infra.

But see Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96
L.Ed. 1153 (1952).

There are several other statutory provisions prohibiting and punishing the
dissemination of information, the disclosure of which Congress thought
sufficiently imperiled national security to warrant that result. These include 42
U.S.C. 2161 through 2166 relating to the authority of the Atomic Energy
Commission to classify and declassify 'Restricted Data' ('Restricted Data' is a

term of art employed uniquely by the Atomic Energy Act). Specifically, 42

U.S.C. 2162 authorizes the Atomic Energy Commission to classify certain
information. Title 42 U.S.C. 2274, subsection (a), provides penalties for a
person who 'communicates, transmits, or discloses (restricted data) * * * with
intent to injure the United States or with intent to secure an advantage to any
foreign nation * * *.' Subsection (b) of 2274 provides lesser penalties for one
who 'communicates, transmits, or discloses' such information 'with reason to
believe such data will be utilized to injure the United States or to secure an
advantage to any foreign nation * * *.' Other sections of Title 42 of the United
States Code dealing with atomic energy prohibit and punish acquisition,
removal, concealment, tampering with, alteration, mutilation, or destruction of
documents incorporating 'Restricted Data' and provide penalties for employees
and former employees of the Atomic Energy Commission, the armed services,
contractors and licensees of the Atomic Energy Commission. Title 42 U.S.C.
2276, 2277. Title 50 U.S.C.App. 781, 56 Stat. 390, prohibits the making of
any sketch or other representation of military installations or any military
equipment located on any military installation, as specified; and indeed
Congress in the National Defense Act of 1940, 54 Stat. 676, as amended, 56
Stat. 179, conferred jurisdiction on federal district courts over civil actions 'to
enjoin any violation' thereof. 50 U.S.C.App. 1152(6). Title 50 U.S.C.
783(b) makes it unlawful for any officers or employees of the United States or
any corporation which is owned by the United States to communicate material
which has been 'classified' by the President to any person who that
governmental employee knows or has reason to believe is an agent or
representative of any foreign government or any Communist organization.
1

As noted elsewhere the Times conducted its analysis of the 47 volumes of

Government documents over a period of several months and did so with a
degree of security that a government might envy. Such security was essential,
of course, to protect the enterprise from others. Meanwhile the Times has
copyrighted its material and there were strong intimations in the oral argument
that the Times contemplated enjoining its use by any other publisher in
violation of its copyright. Paradoxically this would afford it a protection,
analogous to prior restraint, against all othersa protection the Times denies
the Government of the United States.

Interestingly the Times explained its refusal to allow the Government to

examine its own purloined documents by saying in substance this might
compromise its sources and informants! The Times thus asserts a right to guard
the secrecy of its sources while denying that the Government of the United
States has that power.

With respect to the question of inherent power of the Executive to classify

papers, records, and documents as secret, or otherwise unavailable for public

exposure, and to secure aid of the courts for enforcement, there may be an
analogy with respect to this Court. No statute gives this Court express power to
establish and enforce the utmost security measures for the secrecy of our
deliberations and records. Yet I have little doubt as to the inherent power of the
Court to protect the confidentiality of its internal operations by whatever
judicial measures may be required.
*

The hearing in the Post case before Judge Gesell began at 8 a.m. on June 21,
and his decision was rendered, under the hammer of a deadline imposed by the
Court of Appeals, shortly before 5 p.m. on the same day. The hearing in the
Times case before Judge Gurfein was held on June 18 and his decision was
rendered on June 19. The Government's appeals in the two cases were heard by
the Courts of Appeals for the District of Columbia and Second Circuits, each
court sitting en banc, on June 22. Each court rendered its decision on the
following afternoon.