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MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
MR. JUSTICE BRENNAN, concurring.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
MR. JUSTICE BLACKMUN, dissenting.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
MR. CHIEF JUSTICE BURGER, dissenting.
MR. JUSTICE MARSHALL, concurring.
MR. JUSTICE WHITE,
with whom MR. JUSTICE STEWART joins, concurring.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
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 (Emphasis added.) 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.
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.
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:
"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. . . . There 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
And the Government argues in its brief that
in spite of the First Amendment, "the 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 Commander-in-Chief."
4
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 far-reaching 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.
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 Hughes -- great 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.
"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
---- Begin EndNotes ----
1 In introducing the Bill of Rights in the House of Representatives, Madison said: "But 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: "It 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.
2 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.
4 Brief for the United States 13-14.
5 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.
6 De Jonge
v. Oregon, 299 U.S. 353, 365.
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