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Court Rules for Newspapers, 6-3

Decision Allows Printing of Stories on Vietnam Study

By John P. MacKenzie
Washington Post Staff Writer
July 1, 1971

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

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

Deeply divided and venting their differences in nine separate opinions, the justices summed up their action by stating that the government had failed to meet its "heavy burden" of justifying prior restraint against the press in light of cherished First Amendment freedoms.

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

Chief Justice Warren E. Burger, who announced the edict along with his own dissent and the dissents of Justices John M. Harlan and Harry A. Blackmun, then brought to a close the court's brief afternoon session and declared the end after a two-day extension to settle the newspaper case.

There was widespread satisfaction in the press at the result, though the newspaper industry wished for a more resounding declaration against even temporary press restraints. The Justice Department had no comment on the court's action, and the White House and President Nixon would not comment.

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

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

As expected, the outcome was the result of adding the votes of justices of several shades of opinion. Voting with the majority were Justices Hugo L. Black, William O. Douglas, William J. Brennan Jr., Thurgood Marshall, Potter Stewart and Byron R. White.

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

The swing votes were cast by Stewart and White who, warning that the press 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 and irreparable" injury to the nation's security.

In contrast to the justices who felt the restraints had been in effect too long, the dissenters complained that the court had acted at an "almost irresponsibly feverish" pace that made a reasoned decision impossible.

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

Harlan said the dispute was one of the "great cases" of history which, because of stress, often produce "bad law." The issues, he said, were "as important as any that have arisen during my time on the bench," which dates from 1955. He disclosed that he consented to holding an extraordinary Saturday session last week "only to avoid the possibility of even more preemptory action by the court." That hearing was scheduled over the dissents of Black, Douglas, Brennan and Marshall, who argued for an end to the restraints without further argument.

The four were joined on Saturday by Stewart and White to reject -- the same 6 to 3 margin of yesterday's final decision the Justice Department's request for an unprecedented secret oral argument on the sensitivity of certain classified documents in the 17-volume "History of U.S. Decision-Making Process on Vietnam Policy."

To Black and Douglas, however, "every moment's continence of the injunctions against these newspapers amounts to a flagrant, indefensible and continuing violation of the First Amendment."

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

"For the first time in the 182 years since the founding of the Republic," said Black, "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 country."

Douglas called the documents "all history, not future events," but said they were "highly relevant to the debate in Congress" over Vietnam.

He joined Black in declaring, "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."

The court's two most liberal justices added, in sharp contrast to the dissenters, that in their 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 Father saw so clearly. In revealing the workings of government that led to the Vietnam war the newspapers nobly did precisely that which the Founders hope and trusted they would do."

Douglas recalled cased in which civil liberties had yielded to wartime pressures. But he noted "the war power stems from a declaration of war." The Constitution given Congress alone the power to declare war, he said, and "nowhere are presidential 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, the government still would have to prove that publication "must inevitable, directly and immediately" cause the gravest national peril.

Marshall, like Brennan allowing there might be some situations where censorship was authorized, based his concurring vote on his reading of congressional history. Through the years, he said, "Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and [would have] made the current activity of the newspapers unlawful."

"When Congress specifically declines to make conduct unlawful, it is not for this court to re-decide those issues -- to overrule Congress," said Marshall with a note of irony at the failure of more conservative justices to agree on deference to Congress.

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

Marshall went on: "It may be considered politically wise to get a court to share the responsibility for arresting those who the executive has probable cause to believe are violating the law. But convenience and political considerations of the moment do not justify a basic departure from the principles of our system of government." The solution, he said, was the executive branch to take the harder course and ask Congress to legislate in the area.

Whether such a press secrecy law would be constitutional was a question left open by Marshall and by Stewart and White, but they considered specific rejections of such laws, since the World War I, espionage act, as highly significant.

The swing justices said it was "not easy to reject the proposition urged by the United States and to deny relief on its good-faith claims in these cases that publication will work serious damage to the country." That "discomfiture," they said, was tempered by the fact that prior restraint cases come up so rarely in the courts. Few such Supreme Court rulings have been necessary since a landmark 1931 decision written by Chief Justice Charles Evans Hughes.

Stewart said the government's "enormous power" over national defense and international relations -- the core of the government's claim of power for the injunctions -- had been "pressed to the very hilt" in the nuclear age so that an enlightened citizenry and a free press had become "the only effective restraint."

"For this reason," said Stewart, "it is perhaps here that a press that is alert, aware and free most vitally serves the basic purpose of the First Amendment."Secrecy is vital for the national government's operations, Stewart and White acknowledged, adding, however, that "there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is."

For the government to decide how to keeps its own secrets secure, said Stewart, "I should suppose that moral political and practical considerations would dictate a few very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hall mark of a truly effective internal security system would be the maximum possible disclosure."

Although Solicitor General Erwin N. Griswold told the court that criminal prosecution was a technical but not a "practical" possibility, White warned of that possibility if publications ran afoul of any of several laws.

"The newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish," said White. "I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity (court injunction) and the imposition of prior restraint." Blackman's dissent joined what he called the admonition by White and Stewart. "I strongly urge," he added, "that the these two newspapers will be fully aware of their ultimate responsibilities to the United States of America."

From his examination of sealed documents in the case, Blackmun said he feared there was "some foundation" to claims that the disclosures would cause actual death of American troops and pose obstacles to negotiation with the enemy, possibly to the point of prolonging the war.

If the damage has been done, said Blackmun, "the nation's people will know where the responsibility for these sad consequences lies."

Blackmun said the haste of Supreme Court and lower courts in a climate of "panic and sensationalism" had produced inferior opinions. He argued for continued partial injunctions, leaving "comparatively few documents specified by the government" under seal until their secrecy can be more carefully litigated.

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

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

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

"Would it have been unreasonable, since the newspaper could anticipate the government's objections to release of secret material, to give the government an opportunity to review the entire collection and determine whether agreement could be reached on publication?" The newspapers said that would be unconstitutional censorship.

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