Flashback: This Month in History (2024)

Court Rules for Newspapers, 6-3

Decision Allows Printing of Stories on VietnamStudy

The Supreme Court settled a historic confrontation between the government and press by ruling yesterday that The Washington Postand The New York Times are free to publish their stories about thesecret Pentagon report on how America went to war in Vietnam.

The decision, which rested on the Bill of Rights guarantee of a freepress and the long-standing refusal of Congress to authorize courtinjunctions against newspapers, was by a 6 to 3 vote.

Deeplydivided and venting their differences in nine separate opinions,the justices summed up their action by stating that the governmenthad failed to meet its "heavy burden" of justifying prior restraintagainst the press in light of cherished First Amendmentfreedoms.

The court ordered the lifting "forthwith" of staysagainst both newspapers which have been in effect during most ofthe three weeks the battle has raged in the courts.

Chief JusticeWarren E. Burger, who announced the edict along with his owndissent and the dissents of Justices John M. Harlan and Harry A.Blackmun, then brought to a close the court's brief afternoonsession and declared the end after a two-day extension to settlethe newspaper case.

There was widespread satisfaction in thepress at the result, though the newspaper industry wished for amore resounding declaration against even temporary pressrestraints. The Justice Department had no comment on the court'saction, and the White House and President Nixon would notcomment.

Katharine Graham, publisher of The Post, said: "we areextremely gratified not only from the point of view of newspapers,which was not the least of our concerns, but gratified from thepoint of view of government, and the public's right to know, whichis what we were concerned with."

"I never really doubted this daywould come and we would win," said Arthur Ochs Sulzberger presidentand publisher of The Times. He said the decision shows "thegovernment can't just march in and stop us from publishing."

Asexpected, the outcome was the result of adding the votes ofjustices of several shades of opinion. Voting with the majoritywere Justices Hugo L. Black, William O. Douglas, William J. BrennanJr., Thurgood Marshall, Potter Stewart and Byron R. White.

Blackand Douglas reiterated their views, long and deeply held that norestraint of any sort are permissible under the First Amendment.Brennan, joining them in lamenting the restraints already imposedin the two cases, said "in the circ*mstances presented by thesecases" no injunctions should have been imposed. Marshall said thecourt lacked "power to make law" and should not do so for"convenience and political considerations of the moment."

Theswing votes were cast by Stewart and White who, warning that thepress risked criminal prosecution, said that they were "confident"the disclosures would do "substantial damage to public interests"but that the Constitution demands proof of "direct, immediate andirreparable" injury to the nation's security.

In contrast to the justices who felt the restraints had been in effect too long, thedissenters complained that the court had acted at an "almostirresponsibly feverish" pace that made a reasoned decisionimpossible.

The dissenters stopped far short of saying thegovernment should win its claim that the documents would causegrave national harm if published. They said the government shouldbe given another chance to prove its case under ground rules thatwould give great weight to the executive branch's judgement on thesecurity issue.

Harlan said the dispute was one of the "greatcases" of history which, because of stress, often produce "badlaw." The issues, he said, were "as important as any that havearisen during my time on the bench," which dates from 1955. Hedisclosed that he consented to holding an extraordinary Saturdaysession last week "only to avoid the possibility of even morepreemptory action by the court." That hearing was scheduled overthe dissents of Black, Douglas, Brennan and Marshall, who arguedfor an end to the restraints without further argument.

The fourwere joined on Saturday by Stewart and White to reject -- the same6 to 3 margin of yesterday's final decision the JusticeDepartment's request for an unprecedented secret oral argument onthe sensitivity of certain classified documents in the 17-volume"History of U.S. Decision-Making Process on Vietnam Policy."

ToBlack and Douglas, however, "every moment's continence of theinjunctions against these newspapers amounts to a flagrant,indefensible and continuing violation of the FirstAmendment."

They lamented that there were some members of thecourt who "are apparently willing to hold that the publication ofnews may sometimes be enjoined. Such holding would make a shamblesof the First Amendment."

"For the first time in the 182 yearssince the founding of the Republic," said Black, "the federalcourts are asked to hold that the First Amendment does not meanwhat it says, but rather means that the government can halt thepublication of current news of vital importance to thecountry."

Douglas called the documents "all history, not futureevents," but said they were "highly relevant to the debate inCongress" over Vietnam.

He joined Black in declaring, "The presswas protected so that it could bare the secrets of government andinform the people. Only a free and unrestrained press caneffectively expose deception in government. And paramount among theresponsibilities of a free press is the duty to prevent any part ofthe government from deceiving the people and sending them off todistant lands to die of foreign fevers and foreign shot andshell."

The court's two most liberal justices added, in sharpcontrast to the dissenters, that in their view, "far from deservingcondemnation for their courageous reporting, The New York Times,The Washington Post and other newspapers should be commended forserving the purpose that the Founding Father saw so clearly. Inrevealing the workings of government that led to the Vietnam warthe newspapers nobly did precisely that which the Founders hope andtrusted they would do."

Douglas recalled cased in which civilliberties had yielded to wartime pressures. But he noted "the warpower stems from a declaration of war." The Constitution givenCongress alone the power to declare war, he said, and "nowhere arepresidential wars authorized."

Brennan wrote that even if the present world situation were assumed to be tantamount to wartime,or if in peacetime a "nuclear holocaust" were in the offing, thegovernment still would have to prove that publication "mustinevitable, directly and immediately" cause the gravest nationalperil.

Marshall, like Brennan allowing there might be somesituations where censorship was authorized, based his concurringvote on his reading of congressional history. Through the years, hesaid, "Congress has specifically rejected passing legislation thatwould have clearly given the President the power he seeks here and[would have] made the current activity of the newspapersunlawful."

"When Congress specifically declines to make conductunlawful, it is not for this court to re-decide those issues -- tooverrule Congress," said Marshall with a note of irony at thefailure of more conservative justices to agree on deference toCongress.

"It is not for this court to fling itself into everybreach perceived by some government official nor is it for thiscourt to take on itself the burden of enacting law, especially lawthat Congress has refused to pass," he said.

Marshall went on:"It may be considered politically wise to get a court to share theresponsibility for arresting those who the executive has probablecause to believe are violating the law. But convenience andpolitical considerations of the moment do not justify a basicdeparture from the principles of our system of government." Thesolution, he said, was the executive branch to take the hardercourse and ask Congress to legislate in the area.

Whether such apress secrecy law would be constitutional was a question left openby Marshall and by Stewart and White, but they considered specificrejections of such laws, since the World War I, espionage act, ashighly significant.

The swing justices said it was "not easy toreject the proposition urged by the United States and to denyrelief on its good-faith claims in these cases that publicationwill work serious damage to the country." That "discomfiture," theysaid, was tempered by the fact that prior restraint cases come upso rarely in the courts. Few such Supreme Court rulings have beennecessary since a landmark 1931 decision written by Chief JusticeCharles Evans Hughes.

Stewart said the government's "enormouspower" over national defense and international relations -- thecore of the government's claim of power for the injunctions -- hadbeen "pressed to the very hilt" in the nuclear age so that anenlightened citizenry and a free press had become "the onlyeffective restraint."

"For this reason," said Stewart, "it isperhaps here that a press that is alert, aware and free mostvitally serves the basic purpose of the First Amendment."Secrecy isvital for the national government's operations, Stewart and Whiteacknowledged, adding, however, that "there can be but one answer tothis dilemma, if dilemma it be. The responsibility must be wherethe power is."

For the government to decide how to keeps its ownsecrets secure, said Stewart, "I should suppose that moralpolitical and practical considerations would dictate a few veryfirst principle of that wisdom would be an insistence upon avoidingsecrecy for its own sake. For when everything is classified, thennothing is classified, and the system becomes one to be disregardedby the cynical or the careless and to be manipulated by thoseintent on self-protection or self-promotion. I should suppose, in short, that the hall mark of a truly effective internal securitysystem would be the maximum possible disclosure."

AlthoughSolicitor General Erwin N. Griswold told the court that criminalprosecution was a technical but not a "practical" possibility,White warned of that possibility if publications ran afoul of anyof several laws.

"The newspapers are presumably now on fullnotice of the position of the United States and must face theconsequences if they publish," said White. "I would have nodifficulty in sustaining convictions under these sections on factsthat would not justify the intervention of equity (courtinjunction) and the imposition of prior restraint." Blackman'sdissent joined what he called the admonition by White and Stewart."I strongly urge," he added, "that the these two newspapers will befully aware of their ultimate responsibilities to the United Statesof America."

From his examination of sealed documents in thecase, Blackmun said he feared there was "some foundation" to claimsthat the disclosures would cause actual death of American troopsand pose obstacles to negotiation with the enemy, possibly to thepoint of prolonging the war.

If the damage has been done, saidBlackmun, "the nation's people will know where the responsibilityfor these sad consequences lies."

Blackmun said the haste ofSupreme Court and lower courts in a climate of "panic andsensationalism" had produced inferior opinions. He argued forcontinued partial injunctions, leaving "comparatively few documentsspecified by the government" under seal until their secrecy can bemore carefully litigated.

Burger, an outspoken advocate ofefficiency in the courts, complained, "We all crave speedierjudicial processes but when judges are pressured as in these casesthe result is a parody of the judicial process.

The newspapers'attorneys, William R. Glendon for The Post and Alexander Bickel forThe Times, emphasized that the government had been constantlyreviewing the documents for two years and failed, despite theprodding of district court judges, to identify the most dangerousdocuments and prove their contentions about them.

But Burger saidthe court was acting in the dark about the facts in the cases.Noting that The Times had the material for three months beforepublishing them June 13, he asked:

"Would it have beenunreasonable, since the newspaper could anticipate the government'sobjections to release of secret material, to give the government anopportunity to review the entire collection and determine whetheragreement could be reached on publication?" The newspapers saidthat would be unconstitutional censorship.