PART 3 OF 6
SUPREME COURT OF THE UNITED STATES
No. 1873-New York Times Company, Petitioner,
v.
United States.
No. 1885-United States, Petitioner,
v.
The Washington Post Company, et al.
Oral Argument
June 26, 1971
Proceedings
Mr. Chief Justice Burger: We will hear arguments in Nos. 1873 and 1885, The New York Times against the United States, and United States against Washington Post Company.
Mr. Solicitor General, the Government's motion to conduct part of the oral arguments involving security matters in camera, as has been done in the District Courts in New York and Washington, and in the Courts of Appeals in the Second Circuit and the District of Columbia Circuit is denied by the court. Mr. Justice Harlan, Mr. Justice Blackmun and I would grant a limited in camera argument, as has been done in all of the hearings in these cases until now.
Under the order granting the writ yesterday, counsel may, if they wish, submit arguments in writing under seal in lieu of the in camera oral argument.
Mr. Solicitor General, you may proceed.
Oral Argument by the Solicitor General on Behalf of Petitioner (The United States Government)
The Solicitor General: Mr. Chief Justice, may 1 say in respect of the announcement just made that all three parties have filed a closed brief as well as the open brief, and in addition, I have filed just within minutes two statements, one prepared by the State Department and one prepared by the Department of Defense, giving more detail about some of the items which are discussed in my closed brief. I believe that those will all be before the Court.
Chief Justice Burger:
Q. Are you suggesting that these matters last filed are security matters, or they merely supplement?
A. The only ones that are security matters that I have filed are all marked "Top Secret."
Q. Thank you very much. I just wanted to be sure as to these last documents.
A. The items filed by The Post and The Times I do not believe are marked "Top Secret," but they are marked "In Camera" in the caption of the items. I repeat, all three have also filed regular briefs, except not printed. Only the American Civil Liberties Union seemed to have the resources to produce the printed brief for this occasion.
I am told that the law students of today are indignantly opposed to final examinations because they say that no lawyer ever has to work under such pressure that he has to get things out in three or four hours. I can only say that I think it is perhaps fortunate that Mr. Glendon and Mr. Bickel and I went to law school under an earlier dispensation.
It is important, I think, to get this case in perspective. The case of course raises important and difficult problems about the Constitutional right of free speech and of the free press. We have heard much about that from the press in the last two weeks. But it also raises important questions of the equally fundamental and important right of the Government to function. Great emphasis has been put on the First Amendment, and rightly so, but there is also involved here a fundamental question of separation of powers in the sense of the power and authority which the Constitution allocates to the President as chief executive and as Commander-in-Chief of the Army and Navy.
Involved in that there is also the question of the integrity of the institution of the Presidency, whether that institution, one of the three great powers under the separation of powers, can function effectively.
The problem lies on a wide spectrum, and like all questions of Constitutional law involves the resolution of competing principles. In the first place, it seems to me that it will be helpful to make some preliminary observations. If we start out with the assumption that never under any circumstances can the press be subjected to prior restraint, never under any circumstances can the press be enjoined from publication, of course we come out with the conclusion that there can be no injunction here. But I suggest, not as necessarily conclusive in this case, but I suggest that there is no such Constitutional rule, and never has been such a Constitutional rule.
We have, for example, the copyright laws. My son was in Toronto earlier this week and he sent me copies of The Globe and Mail of Toronto, ten series of the story the Pentagon is trying to kill, each one headed "Copyright New York Times Service." I have no objection to that, but these stories which have been published have been copyrighted by The New York Times and I believe by The Washington Post, and I have no doubt that perhaps in other cases, because these have already attracted much attention, The New York Times and The Washington Post would seek to enforce their copyright. I suppose it is very likely that in one form or another they have obtained royalties because of their copyright on this matter.
But let us also consider other fields of the law. There is a well known branch of the law that goes under the heading of literary property. In the Court of Appeals I gave the example of a manuscript written by Ernest Hemingway, let us assume while he was still living, unpublished, perhaps incomplete, subject to revision. In some way the press gets hold of it. Perhaps it is stolen. Perhaps it is bought from a secretary through breach of fiduciary responsibility, or perhaps it is found on the sidewalk. If The New York Times sought to print that, I have no doubt that Mr. Hemingway or now his heirs, next of kin, could obtain from the courts an injunction against the press printing it. Only this morning I see in the paper that a New York publisher is bringing a suit against Newsday, a New York newspaper, because Newsday has violated what the New York publisher considers to be its copyright in the forthcoming memoirs of President Johnson.
Next, we have a whole series of law, a traditional branch of equity, involving participation in a breach of trust. There cannot be the slightest doubt, it seems to me, no matter what the motive, no matter what the justification, that both The New York Times and The Washington Post are here consciously and intentionally participating in a breach of trust. They know that this material is not theirs. They do not own it. I am not talking about the pieces of paper which they may have acquired. I am talking about the literary property, the concatenation of words, which is protected by the law of literary property. Again I say I don't regard this as controlling or conclusive in this case. I am simply trying to advance the proposition that there are many factors and many facets here, and that there is no Constitutional rule that there can never be prior restraint on the press or on free speech.
Now, in our main brief in this case which I may say was largely prepared by my associate, Mr. Friedman, last evening and last night, we have cited one case which comes very close to being an injunction by this Court against publications in the press. That is The Associated Press case in I believe 215 United States. The Associated Press is a cooperative of newspapers, and there The Associated Press sought and obtained an injunction against the 'dissemination of news by its competitor International Press, and that was granted on copyright and related grounds.
But we have other areas in the law where this court has approved against specific First Amendment claims injunctions in advance forbidding speech. One area of this is the labor law field, where as recently as 395 U.S. in Sinclair against the National Labor Relations Board, the Court unanimously affirmed the judgment of ttte Court of Appeals enforcing the board's order, which included a provision requiring Sinclair to cease and desist from threatening the employees with the possible closing of the plant or the transfer of the weaving production with the attendant loss of employment, or with any other economic reprisals if they were to select the above named or any other labor organization.
In 393 U.S., a case involving the Federal Trade Commission, the Federal Trade Commission against the Texaco, Inc., involving orders with respect to TBC, tires, batteries and accessories, the Court approved the order of the Federal Trade Commission which restrained Texaco from using or attempting to use any device such as, but not limited to, dealer discussions. They were ordered not to speak to dealers about this subject, and the First Amendment was specifically referred to in the brief for the respondent, and was not mentioned in this Court's opinion.
Justice Stewart:
Q. Mr. Solicitor General, of course, The Times in this case, and there are no doubt others, I did not understand your brother counsel on the other side really questioned any of this. I thought at least for purposes of this case they conceded that an injunction would be not violative of the First Amendment, or put it this way, that despite the First Amendment, an injunction would be permissible in this case if the disclosure of this material would in fact pose a grave and immediate danger to the security of the United States, that is, for purposes of this case they conceded that, but they have said that in fact disclosure of this material would not pose any such grave and immediate danger.
A. Mr. Justice, if they have conceded it, I am glad to proceed on that basis.
Q. I am not conceding it for them, but that has been my understanding of what the issue is.
A. I may say that their briefs were served on me within the last hour, which was entirely in accordance with this Court's order, but I have not seen their briefs. I do not know what is in their briefs.
Q. In other words, I had thought in my analysis and I have not had the benefit of much more time than you have had, that this basically came down to a fact case, that the issues here are factual issues.
A. And that, Mr. Justice, is extremely difficult to --
Q. To argue here in this Court, I understand.
A. In open court.
Justice Harlan:
Q. I was going to say, qualifying that, except as to the scope of the judicial review of the executive determination, which I thought you presented.
A. Mr. Justice, it was the latter point for which I was seeking to get this, because our contention, particularly with respect to The Washington Post case is that the wrong standard has been used.
Now, with respect to the actual factual situations, the only thing I can do is point to the close brief, which I have filed, in which there are 10 specific items referred to. When I say specific items, I must make myself very clear. Some of those are collective. I have brought here, and perhaps you cannot see them, the 47 volumes that are supposed to be the background of this. They are included in the record of the Second Circuit Court of Appeals which has been filed with the Court. Let me say when we move onto this next item that it was inevitable that I delegate the question of preparing the supplemental statement which was covered by this Court's order yesterday. This Court, as did the Second Circuit, referred to the materials specified in the special appendix in the Second Circuit, and to such additional items as might be included on a supplemental statement filed at 5 P.M. yesterday. I had nothing to do with preparing that supplemental statement. I had able and conscientious associates who did work on it. However, when I had a chance to see it last evening, particularly after the State Department called me at 8 or 9 o'clock at night and said they had four additional items, I said that the Court's deadline was 5 P.M. and that I could not add any additional items, then I examined it. Here is a copy of it. I find it much too broad. In particular it has at the end a statement in view of the uncertainties as to the precise documents in defendants' custody, and I say that has been an extreme difficulty in this matter -- we do not know now, and never have known what the papers are.
Chief Justice Burger:
Q. I thought The New York Times was required to and did give you a list of what they had.
A. They prepared an inventory, but from it, it is not possible to tell whether they are the same papers that we have. Part of the problem here is that a great mass of this material is not included in the 47 volumes. It is background material, earlier drafts of some papers which are materially different from what is included in the 47 volumes, and as a result we cannot tell from the inventory what is included. For example, one of the items already published, which has caused a certain amount of controversy publicly and internationally, is a telegram to the Canadian Government. That is not in the 47 volumes and is not referred to in the 47 volumes. Where they got it, how they got it, what it is, I do not know. But in this supplemental memorandum, it is stated under my signature that the petitioner specifies in addition to the foregoing any information relating to the following, and then there are listed 13 items. Frankly I regard that as much too broad.
Therefore, I am saying here that we rely with respect to his factual question only on the items specified in the supplemental appendix filed in the Second Circuit and on such additional items as are covered in my closed brief in this case.
Justice White:
Q. Mr. Solicitor General, does your closed brief cover all of the items on the special appendix and any that you think should be added to it?
A. No, Mr. Justice, it does not refer to all of them. What I tried to do in my closed brief, I spent all of yesterday afternoon in constant successive conversations with the individuals from the State Department, the Defense Department, the National Security Agency, and I said, "Look, tell me what are the worst, tell me what are the things that really make trouble." They told me and I made longhand notes of what they told me. From that I prepared the closed brief.
Q. Well, Mr. Solicitor General, if we disagreed with you on those that you have covered, the remainder of the items need not be looked at?
A. Mr. Justice, I think that the odds are strong that that is an accurate statement. I must say that I have not examined everyone of the remainder of the items.
Q. Are you making an argument that even if those 10 that you have covered do not move us very far that nevertheless the cumulative impact of all of the others might tip the scale?
A. And that there ought to be an opportunity for a full and free judicial consideration of each of the items covered in the supplemental appendix. It is perfectly true that there was a trial before Judge Gesell in the District Court of the United States. I referred to it in my closed brief as "hastily conducted" and have said that there was no trace of criticism in that. Judge Gesell started the trial at 8 o'clock last Monday morning, and was under orders from the Court of Appeals to have his decision made by 5 P.M., and there are 47 volumes of material, and millions of words. There are people in various agencies of the Government who have to be consulted, and Mr. Glendon quite appropriately conducted cross examination which took time. Much of the material had to be presented by affidavits, and there simply has not been a full careful consideration of this material. To the best of my knowledge, based on what was told me yesterday afternoon by the concerned persons, the 10 items in my closed brief are the ones on which we most rely, but I have not seen a great many of the other items in the special appendix simply for sheer lack of time.
Whitney North Seymour, United States Attorney:
Q. What was the length of the trial before Judge Gurfein in New York?
A. Mr. Seymour?
A. The in camera proceedings, your honor, were approximately four hours, including cross examination and argument.
Justice Harlan:
Q. What was the length of the hearing in the Court of Appeals for the Second Circuit?
A. The total argument there, public and in camera, was just over three hours. The in camera portion I would guess was about an hour.
Q. Decisions were rendered in the New York case by the District Court within two days afterwards.
A. Within less than 24 hours after, your honor. The hearing finally finished at 10:45 P.M., on Friday night. Decision was rendered at 2:25 P.M., Saturday afternoon.
Q. What was the time interval in the decision by the Court of Appeals?
A. I believe it went one full day, that is, the decision was rendered late on the day of the 23d. The argument was finished shortly after five on the 22d.
Q. And in the District of Columbia proceedings, of course you do not know, but perhaps the Solicitor General does.
A. The trial in the District of Columbia occurred between 8 A.M. and 5 P.M., including the decision last Monday. I participated in the oral argument in the Court of Appeals, and it occupied two hours and a half, two hours and 45 minutes. It started at about 2: 15 and was over I think just before 5.
That is the entire amount of judicial time which has been devoted to millions of words.
Justice White:
Q. Mr. Solicitor General, I don't want to bring in a red herring in this case, or what might be, but do you also say that the 10 items you have talked about fully justify the classification that has been given them and which still remains on them?
A. Mr. Justice, I am not sure whether this case turns on classification. Justice White:
Q. I agree it probably does not.
A. No judicial proceeding has been brought under the Freedom of Information Act by either newspaper. There is provision there for starting a proceeding in court in case materials are wrongly determined. No judicial determination has been made that any classification was arbitrary or capricious. There is a complication here which people who live with become familiar with, which is that any compilation takes the classification of the highest classified item.
Justice White:
Q. I understand that, but on those 10 documents I won't press you any more. You think it perhaps need not be answered in this case, and is perhaps irrelevant, is that correct?
A. I think it need not be answered, but my position would be that as to those 10 items, it is more than 10 documents, as to those 10 items, that they are properly classified "Top Secret." One of the items, I should make plain, is four volumes of the 47 volumes, four related volumes, all dealing with one specific subject, the broaching of which to the entire world at this time would be of extraordinary seriousness to the security of the United States. As I say, that is covered in my closed brief, and I am not free to say more about it.
Justice Stewart:
Q. As I understand it, Mr. Solicitor General, and you tell me, please, if I misunderstand it, your case does not really depend upon the classification of this material, whether it is .classified or how it is classified. In other words, if The New York Times and The Washington Post had this material as a result of the indiscretion or irresponsibility of an Under Secretary of Defense who took it upon himself to declassify all of this material and give it to the paper, you would still be here.
A. I would still be here. It will be one string off my bow.
Q. I did not understand it was a real string on your bow. That is why I am asking you the question.
A. Maybe it is not, but there are those who think it is, and I must be careful not to concede away in this court grounds which some responsible officers of the Government think are important.
Q. Secondly, I understand, and tell me if I am wrong again, that your case really does not depend upon any assertion of property rights, by analogy to the copyright law. Your case would be the same if The New York Times had acquired this information by sending one of its employees to steal it, as it would if it had been presented to The New York Times on a silver platter by an agent of the Government. Am I correct?
A. Yes, Mr. Justice, but I don't think that literary property is wholly irrelevant here. But my case does not depend upon it.
Q. Your case depends upon the claim, as I understand it, that the disclosure of this information would result in an immediate grave threat to the security of the United States of America.
A. Yes, Mr. Justice.
Q. However it was acquired, and however it was classified.
A. Yes, Mr. Justice, but I think the fact that it was obviously acquired improperly is not irrelevant in the consideration of that question. I repeat, obviously acquired improperly.
Justice Brennan:
Q. May I ask, Mr. Solicitor General, am I correct that the injunction so far granted against The Times and The Post have not stopped other newspapers from publishing materials based on this study or kindred paper?
A. It is my understanding, Mr. Justice, though I have not had an opportunity to read everything that has been published in other newspapers, it my understanding that except with respect to the items in The New York Times, The Washington Post and The Boston Globe, there has not been published anything else which is not covered by material already published either in this series, or elsewhere. It would appear to us that other papers sought to get into the act, and they have assigned their writers to write what they can, but we have not been able to find new disclosures of previously unpublished material in these other articles.
Q. Then are you suggesting that these other newspapers do not in fact have either this study or access to the study or parts of it?
A. Mr. Justice, I do not know. I have no information whatever.
Q. But you are not telling us that they do not.
A. No.
Q. There is the possibility that they do have either the study, the same thing The Post and Times have.
A. There is the possibility that anybody has it.
Q. But if that were the fact, I have always thought the rule was that equity has to be rather careful not to issue ineffective injunctions. Isn't that a factor to be considered in these cases?
A. No, I appreciate that. I am trying to say that on the basis of the information now known, this is not that situation. I repeat, I have not read these other articles. I am advised by people who have that they do not contain new disclosures, that they are -- it has now become fashionable and popular, and you are not a good newspaper unless you have got some of this stuff, and they have put out articles with all kinds of window-dressing, probably very well written, but not containing new disclosures. I am not able to testify to that, and I cannot point to anything in the record which supports that. Certainly we are concerned about the problem of the effectiveness of any order which might be issued here.
Q. I gather you do agree that the ordinary equitable principle is not to issue useless injunctions, is it not?
A. Not to issue a useless injunction, and it is our position that there is nothing in this record or known outside the record which would indicate that this injunction would be useless.
Justice Blackmun:
Q. Mr. Solicitor General, one detail in that connection. Is there anything in the record, or any intimation anywhere, that the possession by the other newspapers is attributable to The New York Times or to The Washington Post?
A. No, Mr. Justice. We do not know what they have or how they got it. That is equally true with The New York Times and The Washington Post.
Justice Blackmun:
Q. Have either of these newspapers denied it?
A. Denied that --
Q. That the possession on the part of the other newspapers is not attributable to them?
A. I don't know. I don't believe that has been an issue in The Washington Post case. Mr. Seymour advises me there was nothing like that in The New York Times case.
Q. Mr. Solicitor General, in terms of equity on an injunction, however, to the extent anything has been published and has already been revealed, the United States is not seeking an injunction against further publication of that particular item.
A. No, Mr. Justice, I think at that point we would agree that it becomes futile. It is useless.
Q. Would that mean, Mr. Solicitor General, that if the Government were to prevail here, and that at some time some document within the scope of the injunction that the Government got was published in some other newspaper, that then either The Times or The Post could run it and to that extent then get the injunction modified?
A. I would think so, Mr. Justice.
Q. But that is the only thing they could do, is that it?
A. I would think so, yes. I may say that it was stated in both lower courts, in New York by Mr. Seymour and here by me, that the President last January directed a complete review of classification of all materials. Several Secretaries of State, Defense, and the Chairman of the Joint Chiefs of Staff authorized us then to say that they are prepared to appoint immediately a joint task force to conduct an exhaustive declassification study of the 47 volumes, that they will conduct the study on an expedited basis, and will complete it within any reasonable time that the court may choose. They suggest a minimum of 15 days. Upon completion of the study, the Government will withdraw its objection to the publication of any documents which it has found no longer are relevant to the national security.
Justice Brennan:
Q. Mr. Solicitor General, is the United States pressing separately your request of your cause of action for the return of the materials, wholly aside from injunction against publication?
A. It is not involved in this case in this court at this time.
Q. It is not?
A. No.
Q. But is the Government trying to get these materials back from The Times or The Post?
A. I can certainly say the Government would like to get them back.
Q. That was not my question. My question is is the Government attempting to?
A. The Government is not at this time seeking an order for their return.
Q. I thought that was part of your lawsuit, part of your request for relief.
A. I believe it was, but we did not appeal with respect to that, nor is it covered in our petition for certiorari. Is that not right?
Q. That is correct.
Justice Marshall:
Q. Mr. Solicitor General, on this 45-day study, does that depend on how we rule in this case, or is the Government going to do it anyhow?
A. Mr. Justice, I will urge the Government to do it anyhow.
Q. Well, are they?
A. First, if this Court does not allow any injunction, it will be futile, because the material will be published, and there will not be any particular advantage to have a post mortem to say, "Oh, well, it was all right anyhow."
Q. Suppose the Court decides the other way. Will the study be made?
A. The study is going to be made. I will do my best to see that the study is made, and I believe I have the full support of the entire Administration with respect to that.
Q. Would it not be important without this case that the Government has a right to find out what is available to be published? Is that not part of their job?
A. It is a massive operation. There is not the slightest doubt in my mind that there has been as long as I can remember, which is quite a while, massive overclassification of materials, and there has been much too slow review to provide declassification. The Government is in the process of taking steps to try to find a way to work that problem out.
Q. But if this Court would by chance rule against you, then the Government would surely do it, wouldn't they?
A. If the Court should rule against us here, then it seems to me that it becomes moot with respect to these items. They can be published, and whether we classify them or declassify them is an academic question.
Chief Justice Burger:
Q. The Court would then have done the job for you, is that not correct?
A Yes, the Court will in effect have declassified the materials.
Justice White:
Q. I had thought the standard that you were operating under here in terms of a prior restraint was not necessarily equivalent to the standard that might be operative in a criminal proceeding. Whether or not a newspaper may be enjoined from publishing classified information does not necessarily determine some criminal proceeding.
A. You are certainly right, Mr. Justice, if I may say so, in terms of an examination question. I find it exceedingly difficult to think that any jury would convict or that an appellate court would affirm a conviction of a criminal offense for the publication of materials which this Court has said could be published. Simply as a practical matter whether it was a crime or not, these are the same materials that were involved in The New York Times case. All we did was publish them. I find it difficult to think that such a case should be prosecuted or could effectively be prosecuted.
Q. But the standard concededly is not the same.
A It is not the same issue, and I repeat, I think it would technically be a crime if the materials remained classified. Now, if I may get on --
Justice Stewart:
Q. Mr. Solicitor General, just before you do, this brings me back to my original question of a few moments ago as to what the real, basic issue in this case is. As I understand it, you are not claiming that you are entitled to an injunction simply or solely because this is classified material.
A No.
Q. Nor do I understand it that you are claiming that you are entitled to an injunction because it was stolen from you, that it is your property. You are claiming rather and basically that whether or not it is classified or however it is classified, and however it was acquired by these newspapers, the public disclosure of this material would pose a grave and immediate danger to the security of the United States of America, period.
A. Yes, Mr. Justice.
Q. Now, isn't that correct?
A. Yes, Mr. Justice.
Justice Stewart:
Q. So declassification vel non does not have much to do with the basic issue, does it?
A. I agree with you, except that it is part of the setting. If this material had never been classified, I think we would have a considerably greater difficulty in coming in and saying -- for example, suppose the material had been included in a public speech made by the President of the United States.
Q. Then it would be in the public domain already. That is something else.
A. All right. We come in and say, "You can't print this because it will gravely affect the security of the United States." I think we would plainly be out.
Q. You would have a very shaky case on the facts. This, therefore, is a fact case, is it not? Until we can decide this case, we have to look at the facts, the evidence in this case that has been submitted under seal.
A. In large part, yes, Mr. Justice, but I am still trying to get some help from the background and the setting which I repeat, it is not irrelevant, that the concatenation of words here is the property of the United States, that this has been classified under executive orders approved by Congress, and that it obviously has been improperly acquired.
Q. That may have a great deal to do on the question of whether or not somebody is guilty of a criminal offense, but I submit it has very little to do with the basic First Amendment issue before this Court in this case.
A. All right, Mr. Justice, I repeat, unless we can show that this will have grave, and I think I would like to amend it-I know the Court's order has said "immediate," but I think it really ought to be "irreparable harm to the security of the United States."
Justice Harlan:
Q. I would think with all due respect to my colleague that the question of classification would have an important bearing on the question of the scope of judicial review of an executive classification.
A. I think, Mr. Justice, that is true, but I also think the heart of our case is that the publication of the materials specified in my closed brief will, as I have tried to argue here, materially affect the security of the United States. It will affect lives. It will affect the process of the termination of the war. It will affect the process of recovering prisoners of war. I cannot say that the termination of the war or recovering prisoners of war is something which has an immediate effect on the security of the United States. I say that it has such an effect on the security of the United States that it ought to be the basis of an injunction in this case.
I would like to get to the question of the standard which was used by the District judge in this case. I think it is relevant to point out that on Page 267 of the transcript in the District Court before Judge Gesell, he said, "The court further finds that publication of the documents in the large may interfere with the ability of the Department of State in the conduct of delicate negotiations now in process -- not in the past -- now in process, or contemplated for the future whether these negotiations involve Southeast Asia or other areas of the world. This is not so much because of anything in the documents themselves, but rather results from the fact that it will appear to foreign governments that this Government is unable to prevent publication of actual Government communications when a leak such as the present one occurs."
Thus the judge rejected as a standard in this matter the whole question of the ability of the Department of State, and that means the President, to whom the foreign relations are conferred by the Constitution, to conduct delicate negotiations now in process or contemplated for the future. I suggest to the Court that it is perfectly obvious that the conduct of delicate negotiations now in process or contemplated for the future has an impact on the security of the United States.
Now, the standard which the judge did apply is one which, with the benefit of 20-20 hindsight, I would have written differently. Executive Order 10501 provides the basis for security classification issued by President Eisenhower in 1953, after a comprehensive study by a commission on these matters. The definition of top secret in Section 1(A) of Executive Order 10501 is, "Top-Secret shall be authorized by appropriate authority only for defense information or material which requires the highest degree of protection. The Top-Secret classification shall be applied only to that information or material that the defense aspect of which is paramount and the unauthorized disclosure of which could result in exceptionally grave damage to the nation, such as" -- this was not intended to be all-inclusive, but illustrative -- "such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war or the compromise of military or defense plans or intelligence operations or scientific or technological developments vital to the national defense."
Judge Gesell has used that as the standard. He made no reference whatever to the succeeding classification, which is Secret, and there is also a classification which is Confidential. But Judge Gesell has used as the basis of his decision, and I suggest this was fundamental error, that there is no proof -- this is on Page 269 of the transcript of the hearing before Judge Gesell -- there is no proof that there will be an armed attack on the United States, that there will be an armed attack on an ally, that there will be a war, that there will be a compromise of military or defense plans -- in my closed brief I contend that he was wrong on that -- a compromise of intelligence operations, and in my closed brief I contend that he was plainly wrong on that, or a compromise of scientific and technological materials.
If the standard is that we cannot prevent the publication of improperly acquired material unless we can show in substance an effect, because that is what he really meant, that there will be a break in diplomatic relations or that there will be an armed attack on the United States, I suggest that the standard which Judge Gesell used is far too narrow. Perhaps it lies in between. My own thought would be that in the present parlous state of the world, considering negotiations in the Middle East, considering the SALT talks now going on -- it is perhaps not inappropriate to remember that SALT is Strategic Arms Limitations Talks, the consequences of which obviously have in all likelihood not the prevention of a nuclear attack tomorrow, maybe not next week, but only by success in this kind of negotiations can we have any hope that our children and our children's children will have a world to live in.
I suggest that when it is found by the District Court that the publication of the documents in the large may interfere with, the ability of the Department of State in the conduct of delicate negotiations now in process or contemplated for the future, that should be enough by itself to warrant restraint on the publication of the now quite narrowly selected group of materials covered in the special appendix and dealt with in some detail in my closed brief, and the related papers which have been filed with the court this morning.
Justice Harlan:
Q. Could I ask you a question before you sit down? I had understood from your papers and the brief that you filed this morning that the only specific relief at this stage, this juncture of the proceedings you are asking for is (A) that the Court of Appeals decision in The Times case should be affirmed, namely, that the further hearing before the District Court ordered by the Court of Appeals should go forward to a conclusion, and as regards The Washington Post case, that you are asking only that the proceedings thereby conformed to the proceedings in the Court of Appeals in the Second Circuit, and that therefore these broader questions that you have been talking about are not before the court at the moment, in your judgment.
A. No, Mr. Justice, I think I cannot agree with that. It is our position that Judge Gesell used the wrong standard, as I have just said, and it is our view that the judgment of the Second Circuit should be affirmed, and the case remanded to Judge Gurfein for further hearing under a proper standard which I hope this court will develop and announce, and that the decision of the Court of Appeals would be reversed and the case remanded to Judge Gesell for further hearing and the application of the proper standard which this court has decided, because it is our view, as I have endeavored to contend, that in rational terms in the modern world, the standard that Judge Gesell applied is just too narrow, and as I have said, the standard should be great and irreparable harm to the security of the United States. In the whole diplomatic area, the things don't happen at 8:15 tomorrow morning. It may be weeks or months, people tell me that already channels of communication on which great hope had been placed have dried up. I haven't the slightest doubt myself that the material which has already been published and the publication of the other material affects American lives and is a thoroughly serious matter. I think to say that it can only be enjoined if there will be a war tomorrow morning, when there is a war now going on, is much too narrow.
Mr. Chief Justice Burger:
Thank you, Mr. Solicitor General, Mr. Bickel.
Oral Argument by Alexander M. Bickel, Esq., on Behalf of Petitioner (The New York Times)
Mr. Bickel:
Mr. Chief Justice, may it please the court, we began publishing on June 13. We published on the 14th and the 15th, with no move from the Government until the evening of the 14th, despite what is now said to be the gravest kind of danger which one would have supposed would have been more obvious than it turned out to be.
Chief Justice Burger:
Mr. Bickel, aren't you going to allow some time for somebody to really see what this means before they act and some pleadings drawn, and get lawyers into the courts?
A. I plan to return briefly to this point. I point out now only that as was evident to us at the hearings when we cross-examined some of the Government witnesses, high-ranking people in the Government quite evidently read these things on Sunday morning, the following day, and no great alarm sounded.
We were then enjoined, under prior restraint, on the 15th, and we have been under injunction ever since. This is the 11th day, I guess, under the order of the Court of Appeals for the Second Circuit. We would remain under injunction presumably until the 3d of July, with the distinct possibility of more time added after that if appellate proceedings are required.
Now a word simply on what was had before the hearing that was held before Judge Gurfein. It took place on Friday last, I believe. It started first thing in the morning with open hearings. We went in camera, as Mr. Seymour said, for something upward of four hours. I do not know the exact time. The record will clearly show that the judge's sole purpose, in camera, and continuously expressed intent was to provoke from the Government witnesses something specific, to achieve from them the degree of guidance that he felt he needed in order to penetrate this enormous record.
It is our judgment, and it was his, that he got very little, perhaps almost nothing. The point, however, that I want to leave with you is that at no time in the course of these hearings did the Government object to their, what is now called the speed or rapidity of them; at no point was more time asked for. Of course, we all labored, as I think is only proper under the knowledge that a great newspaper was being restrained from publishing, and that expedition was desirable. But there is no evidence that I know of that Judge Gurfein rushed the proceedings, or would have rushed them, if the Government had asked for more time. I think the Government gave Judge Gurfein all it had.
Now the Government based its complaint against us, framed in very general terms, on a statute, first, one section of it and finally section 793 (E) of the statute. We have a substantial portion of our brief that is still devoted to arguing that the statute is inapplicable. Judge Gurfein so held it to be, and I take it that the order of the Court of Appeals for the Second Circuit is at least open to the interpretation that that holding of Judge Gurfein's is, if not affirmed, at any rate, accepted.
If I may, at this point, take up Mr. Justice Stewart's question to the Solicitor General, referring to our position, we concede, and we have all along in this case conceded for purposes of the argument, that the prohibition against prior restraint, like so much else in the Constitution, is not an absolute. But beyond that. Mr. Justice, our position is a little more complicated than that, nor do we really think that the case, even with the statute out of it, is a simple -- presents indeed a simple question of fact. Rather, our position is twofold. First, on principles, as we view them, of the separation of powers, which we believe deny the existence of inherent Presidential authority on which an injunction can be based.
First on those, and secondly, on First Amendment principles, which are interconnected, and which involve the question of a standard before one reaches the facts, a standard on which we differ greatly from the Solicitor General. On both these grounds, we believe that the only proper resolution of the case is a dismissal of the complaint.
Q. What was the first ground?
A. The first ground, which I am about to enter upon, is the question of the separation of powers, with the statute out of this case.
Q. Yes?
A. As I conceive it, Mr. Justice, the only basis on which the injunction can issue is a theory, which I take it the Solicitor General holds, of an inherent Presidential power.
Now an inherent --
Q. Based upon --
A. His constitutional --
Q. -- The power of the executive in the area of international relationships and in the area of the defense of the nation?
A. I so assume.
Q. Under the Constitution of the United States?
A. I so assume. The reason for that being that a court has to find its law somewhere. As Holmes would have said, I suppose, some legislative "will" must be present from which the court draws the law that it then applies, and that legislative will has to be the President's, if there is no statute.
I do not for a moment argue that the President does not have full inherent power to establish a system of classification, that he does not have the fullest inherent power to administer that system and its procedures within the executive branch. He has his means of guarding security at the source. In some measure he is aided by the criminal sanction. But in any event, he has full inherent power, and the scope of judicial review of the exercise of that power will presumably vary with the case in which it comes up, but I am prepared to concede the decision in the Epstein case, for example, which is cited, I think, in both briefs, that under the Freedom of Information Act, the scope of review is limited, limited to examining whether it is proper.
Nor are we arguing that the President does not have standing -- in the sense in which Baker and Carr distinguishes between standing and just his ability -- standing to come into court, which is I think the burden of most of the cases that the Government cites. The question that I do argue is whether there is inherent Presidential power to make substantive law, not for the internal management of the Government, but outgoing, outlooking substantive law, which can form the basis for a judicially issued injunction, imposing a prior restraint on speech.
The decisive issue that ties in this point and our ultimate First Amendment point is, of course, the exception carved out by Chief Justice Hughes in Near v. Minnesota, for that narrow area in which he accepted that a prior restraint on speech might be applied. This is an exception that is made to a rule more solidly entrenched in the First Amendment than any other aspect of it, a rule that is deeply part of the formative experience out of which the First Amendment came, a rule against prior restraint, based on the experience that prior restraints fall on speech with a special brutality and finality and procedural ease all their own, which distinguishes them from other regulations of speech. If the criminal statute "chills" speech, prior restraint "freezes" it.
It is within that well established doctrine that the exception arises. As Chief Justice Hughes formulated it, it referred to -- actually, it said -- we would all assume that a prior restraint might be possible, to prevent actual obstruction of the recruiting service, and this is the Chief Justice's language, or the publication of sailing dates of transports, or the number and location of troops. I suppose that under the present law, the "recruiting service" part of that exception is problematic, but on the sailing dates of ships and the location of troops, there is a very specific statute. It is 18 U.S.C. 794, which has not been cited against us, which is inapplicable, which is why it has not been cited against us, because that is not what we report. That is not in our paper.
That being the case, there is no applicable statute under which we are covered. The question arises, as a matter of inherent Presidential authority, what kind of feared event would give rise to an independent power on the part of the President? It is a question, in a sense, that was saved in Hiribayashi v. the United States, the first of the Japanese exclusion cases. It is a question which, in its own context, of course, Youngstown Sheet and Tube Co. v. Sawyer answered in the negative.
My suggestion would be that whatever that case, that extremity, that absolute other extremity in which action for the public safety is required, whatever that case may be in which, under this Constitution, under its rules of separation of powers, when the President has independent, inherent authority to act domestically against citizens, let alone to impose a prior restraint, whatever that case may be, it cannot be this case. Whatever that case may be, it surely is of a magnitude and of an obviousness that would leap to the eye, and that is why, in part, Mr. Chief Justice, I mentioned at the beginning, the period of time that has passed. I would suppose that, stretching our imaginations, and trying to envisage that case, the one characteristic of it suggested by the example that Chief Justice Hughes recited, suggested by the phrase that the Second Circuit used, which is probably why the Solicitor General resists the word "immediate," the single characteristic that we can immediately see of such an imagined event would be that it is obvious that the public safety is an issue, that time is of the essence. I submit that that cannot be this case. It cannot be that it has to take the Government which has been reviewing these documents for many months, not just in connection with this case, but in reply to an inquiry made by Senator Fulbright, as the record of our hearings in New York shows, it cannot be that a Government, consisting, after all, of more than just the five witnesses we heard in New York, or the ones that were heard here, over this length of time, has an unfamiliarity with these documents, substantial as they might be, which is so great that, when news of their publication comes up, nobody in the Government knows that somewhere in those documents is one which presents a mortal danger to the security of the United States.
I would submit, secondly, that while error is always possible, Judge Gurfein and the Court of Appeals for the Second Circuit, which affirmed him on the record that he had before him, and Judge Gesell, in the Court of Appeals here, all of those judges cannot have been that wrong.
Justice Blackmun:
Q. Professor Bickel, this is not your case, but reading from Judge Wilkey's dissent, "When I say 'harm' I mean the death of soldiers, the destruction of al1iances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate, as honest brokers, between would-be belligerents." I take it that you disagree fundamental1y with that statement?
A. Not entirely, Mr. Justice Blackmun. For example, the death of soldiers -- I would disagree that impairment of diplomatic relations can be a case for prior restraint, I would say, even under a statute.
I would not disagree that the death of soldiers, as in the troop ship, or as in the example that Chief Justice Hughes gave. The difficulty I would have would be that nothing that any of these judges, including Judge Wilkey, because he, I suppose, is talking about what might yet be shown by the Government, nothing that any of these judges have seen is related by a direct, causal chain, to the death of soldiers or anything grave of that sort. I have heard it, and everything that I have read -- what characterizes every instance in which the Government tries to make its case factually is a chain of causation, whose links are surmise and speculation, all going toward some distant event, itself not of the gravity that I would suggest.
Q. You know these records better than I do, but then going back to Judge Wilkey, he says, "But on careful, detailed study of the affidavits and evidence, I find the number of examples of documents which, if in possession of The Post," and I repeat, this is The Post case, "and if published would clearly result in great harm to the nation."
Now I repeat my question. You, therefore, disagree fundamentally with what he seems to say?
A. I beg your pardon, Mr. Justice. I am not as familiar as I should be with The Washington Post case. I have thought that Judge Wilkey dissented on the ground that he would like more evidence to come in. If this is a statement about the evidence that he heard, or that was heard before Judge Gesell, then, depending on what the standard is that he has in mind, I would think that that language does not quite communicate to me what the standard is, and I doubt that it is the narrow standard that I would contend for.
Depending on the standard that he has in mind, he is either wrong about his standard, or seven judges disagreed with him. I am sorry. I am not sufficiently familiar with The Washington Post case.
Justice White:
Q. Professor, your standard that you are contending for is grave and immediate, or not? Is that too general for you?
A. The standard that I would contend for, and the difficulties of words are simply enormous -- one has to bring into one's mind and image of some event and try to describe it. The standard that I would contend for would have two parts to it. Let me also say that I would differentiate between a standard applicable to the President, acting on his own, the President acting in the case that was saved in Hiribayashi, for example, and a prior restraint being imposed pursuant to a well-drawn statute, which defines the standard and the case. I would demand less of the statute than I would demand of the President.
But the standard, in general, that I would have in mind, would, at one end, have a grave event -- danger to the nation. Some of the things described in the description of top-secret classification in the Executive Order that the Solicitor General read off, I think, would fit that end of the standard.
At the other end would be the fact of publication, and I would demand, and this would be my second element, that the link between the fact of publication and the feared danger, the feared event, be direct and immediate and visible.
Justice White:
Q. I take it then that you could easily concede that there may be documents in these 47 volumes which would satisfy the definition of "Top-Secret" in the executive order, and nevertheless, would not satisfy your standards?
A. That would be chiefly for the reason that, as is notorious, classifications are imposed --
Q. No, my question was this. Let us concede, for the moment, that there are some documents that are properly classified Top Secret. You should say that does not necessarily mean that your standard is satisfied?
A. That is correct, Mr. Justice. I would say that --
Q. I have not read anything in any of your documents or in any of these cases which the newspapers suggest for a moment that there is no document in these 47 volumes which satisfies properly the definition of top secret.
A. I don't know about that.
Q. You do not deny that, do you?
A. I have no knowledge. I have never been near the documents, Mr. Justice.
Q. But your position must be then that even if there is a document or so, none of them satisfies your standard.
A. I would say that today. If asked that question on the day I appeared before Judge Gurfein, on a temporary restraining order, my answer would have been I expect not, I trust the people at The Times. I am fairly certain by now, Mr. Justice, after all of this time, having read the submissions of the Government, although I was hit with another one this morning, not a separate submission, but an explication of earlier ones that I have not had a chance to glance at yet. This literature, like some scholarly literature, tends to get ahead of us. Having read the submissions of the Government, I am flatly persuaded that there is nothing in there that would meet my standards for a statute or independent executive action, because if there were, it surely should have turned up by now. It cannot be after, I gather the Solicitor General had the same experience yesterday afternoon, that I saw Judge Gurfein having. Please show me. Now, which are the three, which are the five, which are the ten? Which is the most important to these? All that one ever got, all that I have ever heard have been statements of the feared event in terms of an effect on diplomatic relations. If it is a military matter, then it was in terms of the addition of a possible cause to a train of causal factors, to train of events that is well on the rails as is, and propelled by sufficient other facts. That sort of statement is the only thing we have heard, and I would submit that that does not meet any possible First Amendment standard. It does not meet it either in the statement of the seriousness of the event that is feared, or what is more important and more obvious in this case, in the drawing of the link between the act of publication as the cause of that event and the event that is feared. That link is always, I suggest, speculative, full of surmises, and a chain of causation that after its first one or two links gets involved with other causes operating in the same area, so that what finally causes the ultimate event becomes impossible to say which the effective cause was. The standard I would propose under the First Amendment would not be satisfied by such things.