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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 BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
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 BLACKMUN, dissenting.
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.
At this point the focus is on only the comparatively
few documents specified by the Government as critical. So far
as the other material -- vast in amount -- is 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.
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:
"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, 400-401 (1904).
The present cases, if not great, are at least
unusual in their posture and implications, and the Holmes observation
certainly has pertinent application.
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.
The District of Columbia case is much the
same.
Two federal district courts, two United
States courts of appeals, and this Court -- within a period of
less than three weeks from inception until today -- have 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 excuse 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.
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.
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, 283 U.S. 697,
708 (1931), and Schenck v. United States, 249 U.S. 47, 52 (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,
"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.
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.
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.
The Court, however, decides the cases today
the other way. I therefore add one final comment.
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 regret 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.
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