new york times argued june decided june together washington post et certiorari appeals district columbia circuit brought actions enjoin publication new york times washington post certain classified material met heavy burden showing justification enforcement prior restraint reversed remanded app affirmed alexander bickel argued cause petitioner brief william hegarty lawrence mckay solicitor general griswold argued cause cases brief assistant attorney general mardian daniel friedman william glendon argued cause respondents brief roger clark anthony essaye leo larkin stanley godofsky briefs amici curiae filed bob eckhardt thomas emerson members congress norman dorsen melvin wulf burt neuborne bruce ennis osmond fraenkel marvin karpatkin american civil liberties union victor rabinowitz national emergency civil liberties committee per curiam granted certiorari cases seeks enjoin new york times washington post publishing contents classified study entitled history process viet nam policy post pp system prior restraints expression comes bearing heavy presumption constitutional validity bantam books sullivan see also near minnesota government thus carries heavy burden showing justification imposition restraint organization better austin keefe district southern district new york new york times case district district columbia appeals district columbia circuit washington post case held government met burden agree ordered mr adhere view government case washington post dismissed injunction new york times vacated without oral argument cases first presented believe every moment continuance injunctions newspapers amounts flagrant indefensible continuing violation first amendment furthermore oral argument agree completely must affirm judgment appeals district columbia circuit reverse judgment appeals second circuit reasons stated brothers douglas brennan view unfortunate brethren apparently willing hold publication news may sometimes enjoined holding make shambles first amendment government launched adoption constitution bill rights including first amendment followed first time years since founding republic federal courts asked hold first amendment mean says rather means government halt publication current news vital importance people country seeking injunctions newspapers presentation executive branch seems forgotten essential purpose history first amendment constitution adopted many people strongly opposed document contained bill rights safeguard certain basic freedoms especially feared new powers granted central government might interpreted permit government curtail freedom religion press assembly speech response overwhelming public clamor james madison offered series amendments satisfy citizens great liberties remain safe beyond power government abridge madison proposed later became first amendment three parts two set one proclaimed people shall deprived abridged right speak write publish sentiments freedom press one great bulwarks liberty shall inviolable emphasis added amendments offered curtail restrict general powers granted executive legislative judicial branches two years original constitution bill rights changed original constitution new charter branch government abridge people freedoms press speech religion assembly yet solicitor general argues members appear agree general powers government adopted original constitution interpreted limit restrict specific emphatic guarantees bill rights adopted later imagine greater perversion history madison framers first amendment able men wrote language earnestly believed never misunderstood congress shall make law abridging freedom press history language first amendment support view press must left free publish news whatever source without censorship injunctions prior restraints first amendment founding fathers gave free press protection must fulfill essential role democracy press serve governed governors government power censor press abolished press remain forever free censure government press protected bare secrets government inform people free unrestrained press effectively expose deception government paramount among responsibilities free press duty prevent part government deceiving people sending distant lands die foreign fevers foreign shot shell view far deserving condemnation courageous reporting new york times washington post newspapers commended serving purpose founding fathers saw clearly revealing workings government led vietnam war newspapers nobly precisely founders hoped trusted government case based premises entirely different guided framers first amendment solicitor general carefully emphatically stated justice black construction first amendment well known certainly respect say law means law obvious say justice equally obvious law mean law seek persuade true parts constitution grant powers responsibilities executive first amendment intended make impossible executive function protect security words asked hold despite first amendment emphatic command executive branch congress judiciary make laws enjoining publication current news abridging freedom press name national security government even attempt rely act congress instead makes bold dangerously contention courts take upon make law abridging freedom press name equity presidential power national security even representatives people congress adhered command first amendment refused make law see concurring opinion justice douglas post find president inherent power halt publication news resort courts wipe first amendment destroy fundamental liberty security people government hopes make secure one read history adoption first amendment without convinced beyond doubt injunctions like sought madison collaborators intended outlaw nation time word security broad vague generality whose contours invoked abrogate fundamental law embodied first amendment guarding military diplomatic secrets expense informed representative government provides real security republic framers first amendment fully aware need defend new nation abuses english colonial governments sought give new society strength security providing freedom speech press religion assembly abridged thought eloquently expressed chief justice hughes great man great chief justice held man punished attending meeting run communists greater importance safeguarding community incitements overthrow institutions force violence imperative need preserve inviolate constitutional rights free speech free press free assembly order maintain opportunity free political discussion end government may responsive people changes desired may obtained peaceful means therein lies security republic foundation constitutional government footnotes parts civil rights none shall abridged account religious belief worship shall national religion established shall full equal rights conscience manner pretext infringed people shall restrained peaceably assembling consulting common good applying legislature petitions remonstrances redress grievances annals cong tr oral arg brief compare views solicitor general james madison author first amendment speaking bill rights house representatives madison said first ten amendments incorporated constitution independent tribunals justice consider peculiar manner guardians rights impenetrable bulwark every assumption power legislative executive naturally led resist every encroachment upon rights expressly stipulated constitution declaration rights annals cong de jonge oregon justice douglas justice black joins concurring join opinion believe necessary express views fully noted outset first amendment provides congress shall make law abridging freedom speech press leaves view room governmental restraint press moreover statute barring publication press material times post seek use title provides hoever unauthorized possession access control document writing information relating national defense information possessor reason believe used injury advantage foreign nation willfully communicates person entitled receive hall fined imprisoned ten years government suggests word communicates broad enough encompass publication eight sections chapter espionage censorship three eight publish specifically mentioned applies whoever time war intent shall communicated enemy collects records publishes communicates disposition armed forces section applies whoever reproduces publishes sells gives away photographs defense installations section relating cryptography applies whoever communicates furnishes transmits otherwise makes available publishes described material emphasis added thus apparent congress capable distinguish publishing communication various sections espionage act evidence apply press rejected version version read national emergency resulting war party threat war president may proclamation declare existence emergency proclamation prohibit publishing communicating attempting publish communicate information relating national defense judgment character might useful enemy cong rec debates senate first amendment specifically cited provision defeated cong rec judge gurfein holding times case act apply case therefore preeminently sound moreover act september amending nothing act shall construed authorize require establish military civilian censorship way limit infringe upon freedom press speech guaranteed constitution regulation shall promulgated hereunder effect stat power government possesses must come inherent power power wage war power wage war successfully see hirabayashi war power stems declaration war constitution art gives congress president power declare war nowhere presidential wars authorized need decide therefore leveling effect war power congress might disclosures may serious impact basis sanctioning previous restraint press stated chief justice hughes near minnesota reckless assaults upon public men efforts bring obloquy upon endeavoring faithfully discharge official duties exert baleful influence deserve severest condemnation public opinion said abuse greater believed less characterized period institutions took shape meanwhile administration government become complex opportunities malfeasance corruption multiplied crime grown serious proportions danger protection unfaithful officials impairment fundamental security life property criminal alliances official neglect emphasizes primary need vigilant courageous press especially great cities fact liberty press may abused miscreant purveyors scandal make less necessary immunity press previous restraint dealing official misconduct government says inherent powers go obtain injunction protect national interest case alleged national security near minnesota repudiated expansive doctrine uncertain terms dominant purpose first amendment prohibit widespread practice governmental suppression embarrassing information common knowledge first amendment adopted widespread use common law seditious libel punish dissemination material embarrassing see emerson system freedom expression chafee free speech xiii present cases think go history dramatic illustration principle debate large proportions goes nation posture vietnam debate antedated disclosure contents present documents latter highly relevant debate progress secrecy government fundamentally perpetuating bureaucratic errors open debate discussion public issues vital national health public questions uninhibited robust debate new york times sullivan affirm judgment appeals post case vacate stay appeals times case direct affirm district stays cases effect week constitute flouting principles first amendment interpreted near minnesota see beauharnais illinois dissenting opinion justice black dissenting opinion roth dissenting opinion justice black joined yates separate opinion justice black joined new york times sullivan concurring opinion justice black joined garrison louisiana concurring opinion justice black joined documents contain data concerning communications system publication made crime criminal sanction urged basis equity power numerous sets material existence apparently controlled custody moreover president sent set congress start case already rather wide distribution material destined publicity secrecy gone material listed camera brief history future events none recent justice brennan concurring write separately cases emphasize apparent judgments present cases may taken indicate propriety future issuing temporary stays restraining orders block publication material sought suppressed government far determine never sought enjoin newspaper publishing information possession relative novelty questions presented necessary haste decisions reached magnitude interests asserted fact parties concentrated arguments upon question whether permanent restraints proper may justified least restraints heretofore imposed cases certainly difficult fault several courts seeking assure issues involved preserved ultimate review even assumed interim restraints proper two cases us assumption bearing upon propriety similar judicial action future begin ample time reflection judgment whatever values may preservation novel questions appellate review may support restraints future important first amendment stands absolute bar imposition judicial restraints circumstances kind presented cases ii error pervaded cases outset granting injunctive relief whatsoever interim otherwise entire thrust government claim throughout cases publication material sought enjoined might may prejudice national interest various ways first amendment tolerates absolutely prior judicial restraints press predicated upon surmise conjecture untoward consequences may result cases true indicated single extremely narrow class cases first amendment ban prior judicial restraint may overridden cases thus far indicated cases may arise nation war schenck times one question government might prevent actual obstruction recruiting service publication sailing dates transports number location troops near minnesota even present world situation assumed tantamount time war power presently available armaments justify even peacetime suppression information set motion nuclear holocaust neither actions government presented even alleged publication items based upon material issue cause happening event nature chief purpose first amendment guaranty prevent previous restraints upon publication near minnesota supra thus governmental allegation proof publication must inevitably directly immediately cause occurrence event kindred imperiling safety transport already sea support even issuance interim restraining order event may mere conclusions sufficient executive branch seeks judicial aid preventing publication must inevitably submit basis upon aid sought scrutiny judiciary therefore every restraint issued case whatever form violated first amendment less restraint justified necessary afford courts opportunity examine claim thoroughly unless government clearly made case first amendment commands injunction may issue freedman maryland similar cases regarding temporary restraints allegedly obscene materials point cases rest upon proposition obscenity protected freedoms speech press roth question material sought suppressed within protection first amendment question whether notwithstanding fact publication may enjoined time presence overwhelming national interest similarly copyright cases pertinence government asserting interest particular form words chosen documents seeking suppress ideas expressed therein copyright laws course protect form expression ideas expressed justice stewart justice white joins concurring governmental structure created constitution executive endowed enormous power two related areas national defense international relations power largely unchecked legislative judicial branches pressed hilt since advent nuclear missile age better worse simple fact president possesses vastly greater constitutional independence two vital areas power say prime minister country parliamentary government absence governmental checks balances present areas national life effective restraint upon executive policy power areas national defense international affairs may lie enlightened citizenry informed critical public opinion alone protect values democratic government reason perhaps press alert aware free vitally serves basic purpose first amendment without informed free press enlightened people yet elementary successful conduct international diplomacy maintenance effective national defense require confidentiality secrecy nations hardly deal nation atmosphere mutual trust unless assured confidences kept within executive departments development considered intelligent international policies impossible charged formulation communicate freely frankly confidence area basic national defense frequent need absolute secrecy course think one answer dilemma dilemma responsibility must power constitution gives executive large degree unshared power conduct foreign affairs maintenance national defense constitution executive must largely unshared duty determine preserve degree internal security necessary exercise power successfully awesome responsibility requiring judgment wisdom high order suppose moral political practical considerations dictate first principle wisdom insistence upon avoiding secrecy sake everything classified nothing classified system becomes one disregarded cynical careless manipulated intent suppose short hallmark truly effective internal security system maximum possible disclosure recognizing secrecy best preserved credibility truly maintained may clear constitutional duty executive matter sovereign prerogative matter law courts know law promulgation enforcement executive regulations protect confidentiality necessary carry responsibilities fields international relations national defense say congress courts role play undoubtedly congress power enact specific appropriate criminal laws protect government property preserve government secrets congress passed laws several colorable relevance apparent circumstances cases criminal prosecution instituted responsibility courts decide applicability criminal law charge brought moreover congress pass specific law authorizing civil proceedings field courts likewise duty decide constitutionality law well applicability facts proved cases us asked neither construe specific regulations apply specific laws asked instead perform function constitution gave executive judiciary asked quite simply prevent publication two newspapers material executive branch insists national interest published convinced executive correct respect documents involved say disclosure surely result direct immediate irreparable damage nation people first amendment one judicial resolution issues us join judgments president power make treaties appoint ambassadors course limited requirement art ii constitution obtain advice consent senate article empowers congress raise support armies provide maintain navy course congress alone declare war power last exercised almost years ago inception world war ii since end war armed forces suffered approximately half million casualties various parts world see chicago southern air lines waterman hirabayashi cf mora mcnamara app cert denied quite apparent maintenance international relations embarrassment perhaps serious embarrassment avoided success aims achieved congressional legislation made effective negotiation inquiry within international field must often accord president degree discretion freedom statutory restriction admissible domestic affairs alone involved moreover congress better opportunity knowing conditions prevail foreign countries especially true time war confidential sources information agents form diplomatic consular officials secrecy respect information gathered may highly necessary premature disclosure productive harmful results indeed clearly true first president refused accede request lay house representatives instructions correspondence documents relating negotiation jay treaty refusal wisdom recognized house never since doubted justice white justice stewart joins concurring concur today judgments concededly extraordinary protection prior restraints enjoyed press constitutional system say circumstances first amendment permit injunction publishing information government plans operations examining materials government characterizes sensitive destructive deny revelation documents substantial damage public interests indeed confident disclosure result nevertheless agree satisfied heavy burden must meet warrant injunction publication cases least absence express appropriately limited congressional authorization prior restraints circumstances government position simply stated responsibility executive conduct foreign affairs security nation basic president entitled injunction publication newspaper story whenever convince information revealed threatens grave irreparable injury public interest injunction issue whether material published classified whether publication lawful relevant criminal statutes enacted congress regardless circumstances newspaper came possession information least absence legislation congress based investigations findings quite unable agree inherent powers executive courts reach far authorize remedies sweeping potential inhibiting publications press much difficulty inheres grave irreparable danger standard suggested judgment standard cases decision little guidance courts cases material issue available opinion public records published press indeed even today hold met burden material remains sealed records properly discussed today opinions moreover material poses substantial dangers national interests hazards criminal sanctions responsible press may choose never publish sensitive materials sustain government cases start courts long hazardous road willing travel least without congressional guidance direction easy reject proposition urged deny relief claims cases publication work serious damage country discomfiture considerably dispelled infrequency cases normally publication occur damage done government either opportunity grounds suppression publication already begun substantial part threatened damage already occurred fact massive breakdown security known access documents many unauthorized people undeniable efficacy equitable relief newspapers avert anticipated damage doubtful best terminating ban publication relatively sensitive documents government seeks suppress mean law either requires invites newspapers others publish immune criminal action prior restraints require unusually heavy justification first amendment failure government justify prior restraints measure constitutional entitlement conviction criminal publication government mistakenly chose proceed injunction mean successfully proceed another way espionage act consideration congress eliminated bill provision given president broad powers time war proscribe threat criminal penalty publication various categories information related national defense congress time unwilling clothe president powers monitor press opposed part legislation assumed necessary concomitant power power filter news people man cong rec remarks ashurst however members congress appeared little doubt newspapers subject criminal prosecution insisted publishing information type congress determined revealed senator ashurst example quite sure editor newspaper punished publish information movements fleet troops aircraft location powder factories location defense works sort thing criminal code contains numerous provisions potentially relevant cases section makes crime publish certain photographs drawings military installations section also precise language proscribes knowing willful publication classified information concerning cryptographic systems communication intelligence activities well information obtained communication intelligence operations material issue nature newspapers presumably full notice position must face consequences publish difficulty sustaining convictions sections facts justify intervention equity imposition prior restraint true sections criminal code casting wider net protect national defense section makes criminal act unauthorized possessor document relating national defense either willfully communicate cause communicated document person entitled receive willfully retain document fail deliver officer entitled receive subsection added law provided penalty unauthorized possessor unless demand documents made dangers surrounding unauthorized possession items deemed advisable require surrender case regardless demand especially since unauthorized possession may unknown authorities otherwise make demand pt course cases us unpublished documents demanded import made known least counsel newspapers involved gorin words national defense used predecessor held unanimous well understood connotation generic concept broad connotations referring military naval establishments related activities national preparedness sufficiently definite apprise public prohibited activities consonant due process also construed gorin information connected national defense obviously limited threatening grave irreparable injury thus clear congress addressed problems protecting security country national defense unauthorized disclosure potentially damaging information cf youngstown sheet tube sawyer see also frankfurter concurring however authorized injunctive remedy threatened publication apparently satisfied rely criminal sanctions deterrent effect responsible well irresponsible press course saying either newspapers yet committed crime either commit crime published material possession matter must await resolution context criminal proceeding one instituted event issue guilt innocence determined procedures standards quite different purported govern injunctive proceedings congress authorized strain prior restraints private parties certain instances national labor relations board routinely issues orders employers finds threatened coerced employees exercise protected rights see similarly federal trade commission empowered impose orders unfair methods competition orders quite often restrict may spoken written certain circumstances see nlrb gissel packing article constitution authorizes congress secure exclusive right authors writings one denies newspaper properly enjoined publishing copyrighted works another see westermann dispatch newspapers rely time time copyright means protecting accounts important events however enjoined statutes relating national labor relations board federal trade commission private parties press press enjoined copyright laws complainant private copyright holder enforcing private right situations quite distinct government request injunction publishing information affairs government request admittedly based statute grave irreparable danger standard asserted government remanding judge gurfein hearings times litigation five members appeals second circuit directed determine whether disclosure certain items specified particularity government pose grave immediate danger security warrant publication enjoined whoever time war violation reasonable regulations prescribed president hereby authorized make promulgate shall publish information respect movement numbers description condition disposition armed forces ships aircraft war materials respect plans conduct naval military operations respect works measures undertaken connected intended fortification defense place information relating public defense calculated useful enemy shall punished fine imprisonment cong rec senator ashurst also urged freedom press means freedom restraints censor means absolute liberty right publish whatever wish take chances punishment courts country violation laws libel slander treason cong rec title provides thirty days date upon president defines vital military naval installation equipment within category contemplated section title whoever reproduces publishes sells gives away photograph sketch picture drawing map graphical representation vital military naval installations equipment defined without first obtaining permission commanding officer military naval post camp station concerned higher authority unless photograph sketch picture drawing map graphical representation clearly indicated thereon censored proper military naval authority shall fined imprisoned one year relevant part provides whoever knowingly willfully communicates furnishes transmits otherwise makes available unauthorized person publishes uses manner prejudicial safety interest benefit foreign government detriment classified information concerning nature preparation use code cipher cryptographic system foreign government concerning design construction use maintenance repair device apparatus appliance used prepared planned use foreign government cryptographic communication intelligence purposes concerning communication intelligence activities foreign government obtained process communication intelligence communications foreign government knowing obtained processes shall fined imprisoned ten years purport clear house senate reports bill identical terms speak furthering security preventing disclosure information concerning cryptographic systems communication intelligence systems explaining bill makes crime reveal methods techniques material used transmission nation enciphered coded messages makes crime reveal methods used nation breaking secret codes foreign nation also prohibits certain penalties divulging information may come government hands result narrow reach statute explained covering small category classified matter category vital vulnerable almost unique degree existing legislation deemed inadequate present two acts protect information limited way espionage act stat act june stat first unauthorized revelation information kind penalized proved person making revelation intent injure second diplomatic codes messages transmitted diplomatic codes protected present bill designed protect knowing willful publication revelation important information affecting communication intelligence operations direct information codes ciphers ibid section provides whoever unauthorized possession access control document writing code book signal book sketch photograph photographic negative blueprint plan map model instrument appliance note relating national defense information relating national defense information possessor reason believe used injury advantage foreign nation willfully communicates delivers transmits causes communicated delivered transmitted attempts communicate deliver transmit cause communicated delivered transmitted person entitled receive willfully retains fails deliver officer employee entitled receive amendment added subsection part subversive activities control act turn title internal security act see stat report senate judiciary committee best explains purposes amendment section bill amends section title code espionage statute several paragraphs section title designated subsections purposes convenient reference significant changes made section title follows amends fourth paragraph section title subsec cover unlawful dissemination information relating national defense information possessor reason believe used injury advantage foreign nation phrase information possessor reason believe used injury advantage foreign nation modify information relating national defense items enumerated subsection fourth paragraph section also amended provide lawful possession items relating national defense enumerated therein may retain subject demand therefor unauthorized possession items treated separate subsection amends section title subsec provide unauthorized possessors items enumerated paragraph section must surrender possession thereof proper authorities without demand existing law provides penalty unauthorized possession items unless demand made person entitled receive dangers surrounding unauthorized possession items deemed advisable require surrender case regardless demand especially since unauthorized possession may unknown authorities otherwise make demand difference subsection subsection section demand person entitled receive items necessary element offense subsection possession lawful whereas demand necessary element offense subsection possession unauthorized pt emphasis added also relevant subsection thereof forbids time war collection publication intent shall communicated enemy information respect movements military forces respect plans conduct naval military operations information relating public defense might useful enemy justice marshall concurring government contends issue cases whether suit first amendment bars prohibiting newspaper publishing material whose disclosure pose grave immediate danger security brief due respect believe ultimate issue cases even basic one posed solicitor general issue whether congress power make law cases problem concerning president power classify information secret top secret congress specifically recognized presidential authority formally exercised exec order classify documents information see issue regarding president power chief executive commander chief protect national security disciplining employees disclose information taking precautions prevent leaks problem whether particular cases executive branch authority invoke equity jurisdiction courts protect believes national interest see debs government argues addition inherent power government protect president power conduct foreign affairs position commander chief give authority impose censorship press protect ability deal effectively foreign nations conduct military affairs country course beyond cavil president broad powers virtue primary responsibility conduct foreign affairs position commander chief chicago southern air lines waterman hirabayashi situations may whatever inherent powers government may well implicit authority derived president mandate conduct foreign affairs act commander chief basis invocation equity jurisdiction aid prevent publication material damaging national security however term may defined however utterly inconsistent concept separation powers use power contempt prevent behavior congress specifically declined prohibit similar damage basic concept branches government executive branch adequate authority granted congress protect national security choose instead invoke contempt power enjoin threatened conduct constitution provides congress shall make laws president execute laws courts interpret laws youngstown sheet tube sawyer provide government injunction courts executive branch make law without regard action congress may convenient executive branch need convince judge prohibit conduct rather ask congress pass law may convenient enforce contempt order seek criminal conviction jury trial moreover may considered politically wise get share responsibility arresting executive branch probable cause believe violating law convenience political considerations moment justify basic departure principles system government cases faced situation congress failed provide executive broad power protect nation disclosure damaging state secrets congress several occasions given extensive consideration problem protecting military strategic secrets consideration resulted enactment statutes making crime receive disclose communicate withhold publish certain documents photographs instruments appliances information bulk statutes found chapter title entitled espionage censorship chapter congress provided penalties ranging fine death violating various statutes thus seem order issue injunction require showing injunction enhance already existing power government act see bennett laman traditional axiom equity equity useless thing traditional axiom equity enjoin commission crime see chafee equity ed joyce injunctions attempt make showing solicitor general even mention brief whether government considers probable cause believe crime committed whether conspiracy commit future crimes government attempted show effective remedy traditional criminal law show arguably applicable statute course stage determine whether violation particular statute decide constitutionality statute whether prosecution instituted statute however determined least one many statutes area seems relevant cases congress provided whoever unauthorized possession access control document writing code book signal book note relating national defense information relating national defense information possessor reason believe used injury advantage foreign nation willfully communicates delivers transmits person entitled receive willfully retains fails deliver officer employee entitled receive hall fined imprisoned ten years congress also made crime conspire commit offenses listed true judge gurfein found congress made crime publish items material specified found words communicates delivers transmits refer publication newspaper stories view support legislative history conforms past practice using statute prosecute charged ordinary espionage see cong rec remarks humphrey judge gurfein view statute however plausible construction given see brother white concurring opinion even determined government good faith bring criminal prosecutions new york times washington post clear congress specifically rejected passing legislation clearly given president power seeks made current activity newspapers unlawful congress specifically declines make conduct unlawful redecide issues overrule congress see youngstown sheet tube sawyer least two occasions congress refused enact legislation made conduct engaged unlawful given president power seeks case debate original espionage act still basic provisions congress rejected proposal give president time war threat war authority directly prohibit proclamation publication information relating national defense might useful enemy proposal provided national emergency resulting war party threat war president may proclamation declare existence emergency proclamation prohibit publishing communicating attempting publish communicate information relating national defense judgment character might useful enemy whoever violates prohibition shall punished fine imprisonment years provided nothing section shall construed limit restrict discussion comment criticism acts policies government representatives publication cong rec commission government security found irplane journals scientific periodicals even daily newspaper featured articles containing information data deleted whole part security reasons response problem commission proposed congress enact legislation making crime person willfully disclose without proper authorization purpose whatever information classified secret top secret knowing reasonable grounds believe information classified report commission government security substantial floor discussion proposal rejected see cong rec proposal cotton championed floor enacted publication documents involved certainly crime congress refused however make crime government asking remake decision power either government power statutory grant use traditional criminal law protect country basis arguing congress made activity crime plain congress specifically refused grant authority government seeks either case authority grant requested relief fling every breach perceived government official take burden enacting law especially law congress refused pass believe judgment appeals district columbia circuit affirmed judgment appeals second circuit reversed insofar remands case hearings see infra see kent dulles youngstown sheet tube sawyer several statutory provisions prohibiting punishing dissemination information disclosure congress thought sufficiently imperiled national security warrant result include relating authority atomic energy commission classify declassify restricted data restricted data term art employed uniquely atomic energy act specifically authorizes atomic energy commission classify certain information title subsection provides penalties person communicates transmits discloses restricted data intent injure intent secure advantage foreign nation subsection provides lesser penalties one communicates transmits discloses information reason believe data utilized injure secure advantage foreign nation sections title code dealing atomic energy prohibit punish acquisition removal concealment tampering alteration mutilation destruction documents incorporating restricted data provide penalties employees former employees atomic energy commission armed services contractors licensees atomic energy commission title title app stat prohibits making sketch representation military installations military equipment located military installation specified indeed congress national defense act stat amended stat conferred jurisdiction federal district courts civil actions enjoin violation thereof app title makes unlawful officers employees corporation owned communicate material classified president person governmental employee knows reason believe agent representative foreign government communist organization chief justice burger dissenting clear constitutional limitations prior restraint expression time near minnesota recently organization better austin keefe little occasion concerned cases involving prior restraints news reporting matters public interest therefore little variation among members terms resistance prior restraints publication adherence basic constitutional principle however make cases simple cases imperative free unfettered press comes collision another imperative effective functioning complex modern government specifically effective exercise certain constitutional powers executive view first amendment absolute circumstances view respect reject find cases simple easy cases simple another immediate reason know facts cases district judge knew facts appeals judge knew facts member knows facts posture judges first amendment absolute permits restraint circumstances reason really position act suggest posture cases conducted unseemly haste justice harlan covers chronology events demonstrating hectic pressures cases processed need restate prompt setting cases reflects universal abhorrence prior restraint prompt judicial action mean unjudicial haste moreover frenetic haste due large part manner times proceeded date obtained purloined documents seems reasonably clear haste precluded reasonable deliberate judicial treatment cases warranted precipitate action aborting trials yet completed kind judicial conduct attend disposition great issue newspapers make derivative claim first amendment denominate right public right know implication times asserts sole trusteeship right virtue journalistic scoop right asserted absolute course first amendment right absolute justice holmes long ago pointed aphorism concerning right shout fire crowded theater fire exceptions chief justice hughes mentioned way example near minnesota doubt exceptions one occasion describe discuss conceivably exceptions may lurking cases flushed properly considered trial courts free unwarranted deadlines frenetic pressures issue importance tried heard judicial atmosphere conducive thoughtful reflective deliberation especially haste terms hours unwarranted light long period times choice deferred publication disputed times unauthorized possession documents three four months expert analysts studying presumably digesting preparing material publication time times presumably capacity trustee public right know held publication purposes considered proper thus public knowledge delayed doubt good reason analysis pages complex material drawn vastly greater volume material inevitably take time writing good news stories takes time government information illegally acquired someone along counsel trial judges appellate judges placed needless pressure months deferral alleged right know somehow suddenly become right must vindicated instanter unreasonable since newspaper anticipate government objections release secret material give government opportunity review entire collection determine whether agreement reached publication stolen security fact jeopardized much material doubt declassified since spans period ending approach one great newspapers past practiced stated editorially duty honorable press newspapers government might well narrowed area disagreement publishable leaving remainder resolved orderly litigation necessary hardly believable newspaper long regarded great institution american life fail perform one basic simple duties every citizen respect discovery possession stolen property secret government documents duty thought perhaps naively report forthwith responsible public officers duty rests taxi drivers justices new york times course followed times whether calculated removed possibility orderly litigation issues action judges correct result sheer happenstance grant writ certiorari final judgment times case aborted trial district made complete record pursuant mandate appeals second circuit consequence melancholy series events literally know acting see forced deal litigation concerning rights great magnitude without adequate record surely without time adequate treatment either prior proceedings interesting note counsel sides oral argument frequently unable respond questions factual points surprisingly pointed working literally around clock simply unable review documents give rise cases familiar better posture agree generally justice harlan justice blackmun prepared reach merits affirm appeals second circuit allow district complete trial aborted grant certiorari meanwhile preserving status quo post case direct district remand give priority times case exclusion business set arbitrary deadlines add general agreement much justice white expressed respect penal sanctions concerning communication retention documents information relating national defense crave speedier judicial processes judges pressured cases result parody judicial function noted elsewhere times conducted analysis volumes government documents period several months degree security government might envy security essential course protect enterprise others meanwhile times copyrighted material strong intimations oral argument times contemplated enjoining use publisher violation copyright paradoxically afford protection analogous prior restraint others protection times denies government interestingly times explained refusal allow government examine purloined documents saying substance might compromise sources informants times thus asserts right guard secrecy sources denying government power respect question inherent power executive classify papers records documents secret otherwise unavailable public exposure secure aid courts enforcement may analogy respect statute gives express power establish enforce utmost security measures secrecy deliberations records yet little doubt inherent power protect confidentiality internal operations whatever judicial measures may required justice harlan chief justice justice blackmun join dissenting cases forcefully call mind wise admonition justice holmes dissenting northern securities great cases like hard cases make bad law great cases called great reason real importance shaping law future accident immediate overwhelming interest appeals feelings distorts judgment immediate interests exercise kind hydraulic pressure makes previously clear seem doubtful even well settled principles law bend appeals second circuit appeals district columbia circuit rendered judgment june new york times petition certiorari motion accelerated consideration thereof application interim relief filed june application interim relief post case also filed june order setting hearing us june course joined avoid possibility even peremptory action issued less hours record post case filed clerk shortly june record times case arrive night briefs parties received less two hours argument june frenzied train events took place name presumption prior restraints created first amendment due regard extraordinarily important difficult questions involved litigations led shun precipitate timetable order decide merits cases properly following questions faced whether attorney general authorized bring suits name compare debs youngstown sheet tube sawyer question involves well construction validity singularly opaque statute espionage act whether first amendment permits federal courts enjoin publication stories present serious threat national security see near minnesota dictum whether threat publish highly secret documents sufficient implication national security justify injunction theory regardless contents documents harm enough results simply demonstration breach secrecy whether unauthorized disclosure particular documents seriously impair national security weight given opinion high officers executive branch government respect questions whether newspapers entitled retain use documents notwithstanding seemingly uncontested facts documents originals duplicates purloined government possession newspapers received knowledge feloniously acquired cf liberty lobby pearson app amended whether threatened harm national security government possessory interest documents justifies issuance injunction publication light strong first amendment policy prior restraints publication doctrine enjoining conduct violation criminal statutes extent materials issue apparently already otherwise disseminated difficult questions fact law judgment potential consequences erroneous decision enormous time available us lower courts parties wholly inadequate giving cases kind consideration deserve reflection stability judicial process great issues important arisen time decided pressures engendered torrent publicity attended litigations inception forced reach merits cases dissent opinion judgments within severe limitations imposed time constraints required operate state reasons telescoped form even though different circumstances felt constrained deal cases fuller sweep indicated sufficient basis affirming appeals second circuit times litigation observe order must rest conclusion time elements government given adequate opportunity present case district least conclusion abuse discretion post litigation government time prepare apparently basis refusal appeals district columbia circuit rehearing conform judgment second circuit think another fundamental reason judgment stand reason also furnishes additional ground reinstating judgment district times litigation set aside appeals plain scope judicial function passing upon activities executive branch government field foreign affairs narrowly restricted view think dictated concept separation powers upon constitutional system rests speech floor house representatives chief justice john marshall member body stated president sole organ nation external relations sole representative foreign nations annals cong constitutional primacy field foreign affairs seems certain conclusions necessarily follow stated concisely president washington declining request house representatives papers leading negotiation jay treaty nature foreign negotiations requires caution success must often depend secrecy even brought conclusion full disclosure measures demands eventual concessions may proposed contemplated extremely impolitic might pernicious influence future negotiations produce immediate inconveniences perhaps danger mischief relation powers richardson messages papers presidents judgment judiciary may properly go beyond two inquiries redetermine probable impact disclosure national security nature executive decisions foreign policy political judicial decisions wholly confided constitution political departments government executive legislative delicate complex involve large elements prophecy undertaken directly responsible people whose welfare advance imperil decisions kind judiciary neither aptitude facilities responsibility long held belong domain political power subject judicial intrusion inquiry chicago southern air lines waterman steamship jackson accordingly vacate judgment appeals district columbia circuit ground remand case proceedings district commencement proceedings due opportunity afforded government procuring secretary state secretary defense expression views issue national security ensuing review district accordance views expressed opinion reasons stated affirm judgment appeals second circuit pending hearings case conducted appropriate ground rules continue restraints publication believe doctrine prohibiting prior restraints reaches point preventing courts maintaining status quo long enough act responsibly matters national importance involved hearing post case judge gesell began june decision rendered hammer deadline imposed appeals shortly day hearing times case judge gurfein held june decision rendered june government appeals two cases heard courts appeals district columbia second circuits sitting en banc june rendered decision following afternoon justice blackmun dissenting join justice harlan dissent also substantial accord much justice white says way admonition latter part opinion point focus comparatively documents specified government critical far material vast amount concerned let published published forthwith newspapers strain gone sensationalism eased still feel urge concerned documents specified volumes almost years ago justice holmes dissenting celebrated case observed great cases like hard cases make bad law great cases called great reason real importance shaping law future accident immediate overwhelming interest appeals feelings distorts judgment immediate interests exercise kind hydraulic pressure northern securities new york times clandestinely devoted period three months examining volumes came unauthorized possession begun publication material volumes new york case us emerged immediately assumed ever since maintained frenetic pace character seemingly publication started material made public fast enough seemingly every deferral delay restraint otherwise abhorrent deemed violative first amendment public right immediately know yet newspaper stood us oral argument professed criticism government lodging protest earlier monday telegram following initial sunday publication district columbia case much two federal district courts two courts appeals within period less three weeks inception today pressed hurried decision profound constitutional issues inadequately developed largely assumed facts without careful deliberation one hope characterize american judicial process much writing law little knowledge less digestion facts new york case judges trial appellate yet examined basic material case brought district columbia case little done accomplished respect required remand washington post excuse trying protect source information initially refusing reveal material actually possessed district forced make assumptions possession respect may due contrary view opinion way try lawsuit magnitude asserted importance way federal courts adjudicate required adjudicate issues allegedly concern nation vital welfare country none worse cases tried quickly sure customary properly deliberative manner recent material said dates later already three years ago times took three months formulate plan procedure thus deprived public period first amendment one part entire constitution article ii great document vests executive branch primary power conduct foreign affairs places branch responsibility nation safety provision constitution important subscribe doctrine unlimited absolutism first amendment cost downgrading provisions first amendment absolutism never commanded majority see example near minnesota schenck needed weighing upon properly developed standards broad right press print narrow right government prevent standards yet developed parties disagreement standards even newspapers concede situations restraint order constitutional justice holmes gave us suggestion said schenck question proximity degree nation war many things might said time peace hindrance effort utterance endured long men fight regard protected constitutional right may well cases allowed develop developed tried lawyers try courts hear free pressure panic sensationalism light shed situation contrary considerations might prevail present posture litigation however decides cases today way therefore add one final comment strongly urge sincerely hope two newspapers fully aware ultimate responsibilities america judge wilkey dissenting district columbia case review affidavits basic papers made available either party concluded number examples documents possession post published clearly result great harm nation defined harm mean death soldiers destruction alliances greatly increased difficulty negotiation enemies inability diplomats negotiate one able give least cursory study affidavits material regret say examination fear judge wilkey statements possible foundation therefore share concern hope damage already done however damage done action today newspapers proceed publish critical documents results therefrom death soldiers destruction alliances greatly increased difficulty negotiation enemies inability diplomats negotiate list might add factors prolongation war delay freeing prisoners nation people know responsibility sad consequences rests