(June 26, 1971)
Argument of Solicitor General Erwin Griswold
Chief Justice Warren E. Burger: Mr. Solicitor General, the Government’s motion to conduct part of the oral arguments involving security matters in-camera, as has been done in the District Court’s of New York and in Washington and in the Courts of Appeals, in the Second Circuit and the District of Columbia Circuit is denied for the Court.
Mr. Justice Harlan, Mr. Justice Blackmun and I would grant a limited in-camera argument as has been done in all the hearings in these cases until now.
Under the order, granting the writ yesterday, counsel may, if they wish, submit arguments in writing under seal in lieu of the in-camera oral argument.
Mr. Solicitor General you may proceed.
Mr. Griswold: Mr. Chief Justice, may I say in respect of the announcement just made that all three parties have filed a closed brief as well as the open brief and in addition, I have filed just within minutes, two statements, one prepared by the state department and one prepared by the department of defense, giving more detail about some of the items which are discussed in my closed brief and I believe that those will all be before the Court.
Chief Justice Warren E. Burger: Are you suggesting that these matters last filed are security matters or they merely supplement and explain --
Mr. Griswold: The only ones that are security matters that I have filed are all marked top secret.
Chief Justice Warren E. Burger: I see, thank you very much.
I just wanted to be sure as to these last documents.
Mr. Griswold: The items filed by the Post and the Times, I do not believe are marked top secret, but they are marked in-camera in the caption of the items.
I repeat, all three have also filed regular briefs except not printed, only the American Civil Liberties Union seem to have the resources to produce a printed brief for this case.
I am told that the law students of today are indignantly opposed to final examinations because they say that no lawyer has asked to work under such pressure that he as to get things out in three or four hours.
I can only say that I think it’s perhaps fortunate that Mr. Glendon and Mr. Bickel and I went to law school under earlier dispensation.
It is important I think to get this case in perspective.
The case of course raises important and difficult problems about the constitutional right of free speech and of the free press and we’ve heard much about that from the press in the last two weeks.
But it also raises important questions of the equally fundamental and important right of the government to function.
Great emphasis has been put on the First Amendment and rightly so.
But there is also involved here a fundamental question of separation of powers in the sense of the power and authority which the Constitution allocates to the President as Chief Executive and as Commander-in-Chief of the army and navy and involved in that, there is also the question of the integrity of the institution of the presidency whether that institution, one of the three great powers under the separation of powers, can function effectively.
The problem lies on a wide spectrum and like all questions of constitutional law, involves the resolution of competing principles.
In the first place it seems to me that it will be helpful to make some preliminary observations.
If we start out with the assumption that never under any circumstances can the press be subjected to prior restraints, never under any circumstances can the press be enjoined from publications, of course, we come out with the conclusion that there can be no injunction here.
But I suggest, not as necessarily conclusive in this case, but I suggest that there is no such constitutional rule and never has been such a constitutional rule.
We have for example the copyright laws and my son was in trial earlier this week and he sent me copies of the Globe & Mail of Toronto, ten series of the story that Pentagon is trying to kill, each one added copyright New York Times service.
I have no objection to that, but I -- these stories which had then published have been copyrighted by the New York Times and I believe by the portion imposed and I have no doubt that perhaps in other cases because these have already attracted much attention, the New York Times and the Washington Post would seek to enforce their copyright.
I suppose it is very likely that in one form or another, they have obtained royalties because of their copyright on this matter, but let us also consider other fields of the law.
There is a well known branch of the law that goes under the heading of “Literary Property.”
In the Court of Appeals, I gave the example of a manuscript written by Earnest Hemingway, let’s assume while he is still living, unpublished, perhaps incomplete, subject to revision.
In some way the press gets hold of it.
Perhaps it’s stolen, perhaps it’s bought from a secretary through breech of fiduciary responsibility or perhaps it’s filed on the segue and if the New York Times sought to print that, I have no doubt that Mr. Hemingway or now his heirs next to kin, could obtain from the Courts an injunction against the press printing.
Only this morning, I see in the paper that a New York Publisher is bringing a suit against Newsday, a New York news paper because Newsday has violated what the New York publisher consists says considers to be it’s copyright in the forthcoming memoirs of President Johnson.
And then finally or not finally, but next, we have a whole series of law, a traditional branch of equity, involving participation and the breech of trust and there cannot be the slightest doubt, it seems to me, that no matter what the motive, no matter what the justification that both the New York Times and the Washington post are here consciously, intentionally participating in a breech of trust.
They know that this material is not theirs, they do not own it.
I’m not talking about the pieces of paper of which they may have acquired by the literary property and again I say I don’t regard this as controlling or conclusive in this case.
I’m simply trying to advance the proposition that there are many factors and many facets here and that there is no constitutional rule that there can never be prior restraints on the press or on free speech.
Now in our main brief in this case, we have which I may say was largely prepared by my associate Mr. Friedman, last evening and last night.
We have cited one case which comes very close to being a injunction by this Court against publications in the press and that is the Associated Press case in I believe 215 United States.
The Associated Press is a cooperative of newspapers and there, the Associated Press sought and obtained an injunction against the dissemination of news by its competitor United or International Press in that case not United by its competitor International and that was granted on copyright and related grounds.
But we have other areas in the law where this Court has approved against specific First Amendment claims, injunctions in advance forbidding speech.
One area of this is the labor law field where as recently is 395 U.S. in Sinclair against the National Labor Relations Board, the Court unanimously affirmed the judgment of the Court of Appeals, enforcing the Board's order which included a provision requiring Sinclair to cease and desist from the threatening the employees with the possible closing of the plant or the transfer of the weaving production with the attendant loss of employment or with any other economic reprisals, if they were to select the above named or any other labor organization.
In 393 U.S, a case involving the Federal Trade Commission, Federal Trade Commission against the Tex -- against Texaco Inc., involving orders with respect to TBA, tires, battery and accessories, the Court approved the order of the Federal Trade Commission which restrained Texaco from using or attempting to use any device such as, but not limited to, dealer discussions, they were ordered not to speak to dealers about this subject and the First Amendment was specifically referred to in the brief for the respondent and was not mentioned in this Court’s opinion.
Justice Potter Stewart: Mr. Solicitor General, of course, as the Times Film case as well and there are no doubt others.
I didn’t understand, however, that your brother counsel on the other side really questioned any of this.
I thought that at least for purposes of this case, they conceded that an injunction would be not violative of the First Amendment or put it this way that despite the First Amendment, an injunction would be permissible, in this case if the disclosure of this material would in fact oppose a grave and immediate danger to the security of United States, that is that for purposes of this case, they’ve concede that, but they have said that in fact the disclosure of this material would not pose any such grave and immediate danger. (Voice Overlap)
Mr. Griswold: Mr. Justice if they have conceded it, I am glad to proceed on that basis.
Justice Potter Stewart: No I am not conceding it for them, but that had been my understanding of what the issue is.
They'll make it clear of course to --
Mr. Griswold: I may say that their brief were served on me within the last 15 minutes which -- the last hour which was entirely in accordance with this Court’s order, but I have not seen their briefs.
I do not know what is in their briefs.
Justice Potter Stewart: In other words, I have thought in my analysis and I haven't had the benefit of much more time than you had, that this basically came down to a fact case that the issues here are factual issues?
Mr. Griswold: And that Mr. Justice is extremely difficult to discuss --
Justice Potter Stewart: Argue here in this Court, I understand.
Mr. Griswold: --in open court and we have endeavored to --
Justice John M. Harlan: Is then to say qualifying and acceptance of the scope of the initial review of the executive determination (Inaudible)
Justice Byron R. White: And that is the throughout the standard --
Mr. Griswold: Mr. Justice White, it was the latter point for which I was seeking to get this because our contention, particularly with respect to the Washington Post case is that the wrong standard has been used.
Now with respect to the actual factual situations, the only thing that I can do is to point to the closed brief, which I have filed in which there are ten specific items referred to.
Now when I say specific items, I must be -- I must make myself very clear.
Some of those are collective.
There are -- I have brought here, you perhaps can’t see them, the 47 volumes that are supposed to be the background of this, they are included in the record of the Second Circuit Court of Appeals which has been filed with the Court.
Let me say when we move on to this next item that it was inevitable that I delegate the question of preparing the supplemental statement which was covered by this Court’s order yesterday.
This Court, as did the Second Circuit, referred to the material specified in the special appendix in the Second Circuit and to such additional items as might be included on a supplemental statement filed at 5:00 pm yesterday.
I had nothing to do with preparing that supplemental statement.
I have able and conscientious associates who did work on it.
However, when I had a chance to see it last evening, particularly after the state department called me at 8:00 or 9:00 at night and said they had four additional items, and I said that the Court’s deadline was 5:00 pm and that I could not add any additional items.
I then examined it.
Here is a copy and I find it much too broad.
In particular, it has at the end a statement, in view of the uncertainties as to the précised documents in defendant’s custody and I say that is a -- has been an extreme difficulty in this matter.
we don’t know now, never have know what the papers have.
Justice Potter Stewart: I thought the New York Times was required too and did give you a list of --
Mr. Griswold: They prepared an inventory but from it, it is not possible to tell whether they are the same papers that we have.
Part of the problem here is that a great mass of this material is not included in the 47 volumes.
It is a background material, earlier drafts of some papers which are materially different than what is included in the 47 volumes and as a result, we cannot tell from the inventory what is included.
For example, one of the items already published which has caused a certain amount of controversy, publicly and internationally, is a telegram to the Canadian Government, that is not in the 47 volumes and is not referred to in the 47 volumes.
Where they got it, how they got it, what it is, I do not know.
But in this supplemental memorandum, it is stated under my signature that the petitioner specifies an addition to the foregoing any information relating to the following and then there are listed 13 items and frankly I regard that as much too broad.
And therefore, I am saying here that we rely with respect to this factual question only on the items specified in the supplemental appendix, filed in the Second Circuit and on such additional items as are covered in my closed brief in this case.
Those additional items --
Justice Byron R. White: Mr. Solicitor, your closed brief cover all of the items on a special appendix and any that you think should be added to it?
Mr. Griswold: No Mr. Justice, it does not refer to all of them.
What I tried to do in my closed brief was I spent all yesterday afternoon in constant successive conversation with the individuals from the State Department, the Defense Department, the National Security Agency and I said “look, tell me what are the words, tell me what are the things that really make trouble.”
And they told me and I made long-hand notes of what they told me and from that I prepared the closed brief.
Justice Byron R. White: Well Mr. Solicitor General, if we disagreed with you on those that you have covered, the remainder of the items need to be looked at?
Mr. Griswold: Mr. Justice, I think that the odds are strong that that is an accurate statement.
I must say that I have not examined everyone of the items.
Justice Byron R. White: Are you making an argument that even if those ten that you have covered don’t move us very far that nevertheless the cumulative impact of all the others might tip the scale?
Mr. Griswold: And that there ought to be an opportunity for a full and free judicial consideration of each of the items covered in the supplemental appendix.
Now, it's perfectly true that there was a trial before Judge Gesell in the District Court of the United States.
I referred to it in my closed brief as hastily conducted and I have said that I -- there was no trace of criticism in that.
Judge Gesell started the trial at 8:00 last Monday morning and was under order from the Court of Appeals to have a decision made by 5:00 pm and there are 47 volumes of material and millions of words and there are people in various agency to the Government who have to be consulted and Mr. Glendon quite appropriately conducted cross examination which took time and much of the material had to be presented by affidavits and there simply has not been a full careful consideration of this material.
To the best of my knowledge based on what was told to me yesterday afternoon by the concerned persons, the ten items in my supplemental -- in my closed brief are the ones on which we most rely but I have not seen a great many of the other items in the special appendix simply for sheer lack of time.
Argument of Seymour
Chief Justice Warren E. Burger: Mr. Seymour --
Mr. Seymour: The in-camera proceedings Your Honor were approximately four hours, including cross examination and argument.
Justice John M. Harlan: What was the length of the hearing in the Court of Appeals for the Second Circuit?
Mr. Seymour: The camera argument, the total argument there public and in-camera was just over 3 hours, in-camera portion I would guess was about an hour.
Justice John M. Harlan: And decisions were rendered in the New York case by the District Court within two days after which --
Mr. Seymour: Then less than 24 hours after, Your Honor, the hearing finally finished at 10:45 pm on Friday night.
The decision was rendered on 2:25 Saturday afternoon.
Justice John M. Harlan: And what was the time in rendering of the decision of the Court of Appeals?
Mr. Seymour: I believe it went one full day, Your Honor.
That is the decision was rendered late in the day of the 23, argument was finished about 5:00, shortly after 5:00 on 27.
Justice Potter Stewart: And the District of Columbia proceedings, of course, you don’t know, but perhaps the Solicitor General --
Rebuttal of Griswold
Mr. Griswold: The trial in the District of Columbia occurred between 8:00 am and 5:00 pm, including the decision last Monday.
I participated in the oral argument in the Court of Appeals and it occupied two hours and a half, two hours and forty-five minutes.
Started at about 2:15 and was over I think just before 5:00 that is the entire amount of judicial time which has been devoted to million of words.
Justice Potter Stewart: Mr. Solicitor, I don’t want to bring in a red herring in this case or which might be, but do you also say that the ten items you have talked about fully justify the classification that has been given them and it still remains on them?
Mr. Griswold: Mr. Justice, I’m not sure whether this case turns on classification.
Justice Byron R. White: I agree, no body does it but --
Mr. Griswold: No judicial proceeding has been brought under the freedom of information act by either newspaper.
There is provision there for citing a proceeding in Court in case materials are wrongly determined.
No judicial determination has been made that any classification was arbitrary or capricious.
There is a complication here which people who lived with this become familiar with, which is that is any compilation takes the classification of the highest classified item.
Justice Byron R. White: I understand that but on those ten documents, I won’t press you anymore, you think it’s perhaps needed to be answered in this case and is perhaps irrelevant.
Mr. Griswold: I think it need not be answered, but my position would be that as to those 10 items, it’s more than 10 documents as to those 10 items that they are properly classified top secret.
Justice Potter Stewart: Thank you.
Mr. Griswold: One of the items, I should make plain is four volumes of the 47 volumes, four related volumes, all dealing with one specific subject.
The broaching of which to the entire world at this time would be of extraordinary seriousness to the security of the United States and as I say that is covered in my closed brief and I’m not free to say more about it.
Justice Potter Stewart: As I understand it Mr. Solicitor General and you tell me please, if I misunderstand it, your case doesn’t really depend upon the classification of this material, whether it’s classified or how it’s classified.
In other words if the New York Times and the Washington Post had this material as a result of the indiscretion or irresponsibility of an under secretary of defense who took it upon himself to declassify all of this material and turn it over and give it to the papers, you would still be here?
Mr. Griswold: I would still be here, but would have one string off my book.
Justice Potter Stewart: Well, I didn’t understand it was a real string and that's why I am asking the question.
Mr. Griswold: Well, it maybe this, but there are those who think it is and I must be careful not to concede away in this Court grounds with some responsible officers of the Government, I think how important, but I do understand --
Justice Potter Stewart: Secondly I understand and tell me if I’m wrong again that your case really doesn’t depend upon any assertion of property rights by analogy to the copyright law. You are not -- your case would be the same if the New York Times that acquired this information by sending one of its employees in to steal it as it would if it had been presented to the New York Times on a silver platter.
Mr. Griswold: Yes Mr. Justice but I --
Justice Potter Stewart: -- rather than (Voice Overlap) to the Government, am I correct?
Mr. Griswold: But I don’t -- I don’t think that literary property is wholly irrelevant here, but my case does not depend upon it.
And I say --
Justice Potter Stewart: Your case depends upon the claim as I understand it that the disclosure of this information would result in an immediate grave threat to the security of the United States of America?
Mr. Griswold: Yes Mr. Justice.
Justice Potter Stewart: However, it was acquired and however it’s classified.
Mr. Griswold: Yes, Mr. Justice but I think that the fact that it was obviously acquired improperly is not irrelevant in the consideration of that question and I repeat obviously acquired improperly.
Justice William J. Brennan: May I ask Mr. Solicitor General?
Am I correct that the injunction so far granted against the Times and the Post haven’t stopped other newspapers from publishing materials based on this study or kindled papers?
Mr. Griswold: It is my understanding Mr. Justice, though I have not had an opportunity to read everything that has been published in other newspapers.
It is my understanding that except with respect to the items in the New York Times, the Washington Post and the Boston Globe, there has not been published anything else which is not covered by material already published either in this series or elsewhere.
It would appear to us that other papers have sought to get into the act and they have assigned their writers to write what you can, but we have not been able to find new disclosures of previously unpublished material in these other articles.
Justice William J. Brennan: Well then, are you suggesting that these other newspapers do not in fact have either this study or access to this study or parts of it?
Mr. Griswold: Mr. Justice, I do not know.
I have no information whatever.
Justice William J. Brennan: But you’re not telling us that they don’t?
Mr. Griswold: No.
The only information that I have --
Justice William J. Brennan: There is the possibility that they do of either the study the same thing the Post --
Mr. Griswold: There is a possibility that anybody has it.
Justice William J. Brennan: No, but if that were the fact, am I wrong, I’ve always thought that the rule was that the equity has to be rather careful not to issue ineffective injunctions and isn’t that a rule or the --
Mr. Griswold: I --
Justice William J. Brennan: -- fact to be considered in these cases?
Mr. Griswold: No, I appreciate that.
I am trying to say that on the basis of the information now known, this is not that situation.
I repeat, I have not read these other articles, I am advised by people who have that they do not contain a new disclosures that they are -- it’s now becoming fashionable and popular, you are not a good newspaper unless you got some of this stuff and that they had put out articles with all kinds window dressing, probably very well written, but not containing new disclosures.
I am not able to testify to that and I can’t point to anything in the record which supports that.
Certainly we are concerned about the problem of the effectiveness of any order which might be issued here.
Justice William J. Brennan: Well I gather you do agree that the ordinary equitable principle is not to issue useless injunctions, isn’t it?
Mr. Griswold: And not to issue useless injunction and it is our position that there is nothing in this record or known outside the record which would indicate that this injunction would be useless.
Justice Harry A. Blackmun: Mr. Solicitor General, one detail in that connection.
Is there anything in the record or any information anywhere that the possession by the other newspapers is attributable to the New York Times or to the Washington Post?
Mr. Griswold: No, Mr. Justice.
We don’t know what they have or how they got it nor do -- that matter is equally true with the New York Times and the Washington Post.
Justice Harry A. Blackmun: Have either of these newspapers denied it?
Mr. Griswold: Denied that --
Justice Harry A. Blackmun: That the possession on the part of the other newspapers is not attributable to them.
Mr. Griswold: I don’t know.
I don’t believe that has been an issue in the Washington Post case or was anything like that in the -- Mr. Seymour advises me there was nothing like that in the New York Times case.
Justice Byron R. White: Mr. Solicitor General, in terms of equity on an injunction, however, to the extent anything has been published and has already been revealed, the United States is not seeking an injunction for -- against the further publication of that particular item?
Mr. Griswold: No, Mr. Justice.
I think that at that point, we would agree that it becomes futile, it is a useless --
Justice William J. Brennan: Well, would that mean Mr. Solicitor General that if the Government were to prevail here and that sometime, some document within the scope of the injunction that the Government got was published in some other newspaper that then either the Times and the Post could run in and get to that extent the injunction nullify?
Mr. Griswold: I would think so Mr. Justice.
Justice William J. Brennan: But that’s the only thing they could do, is that it?
Mr. Griswold: I would think so yes.
I may say that it was -- both -- stated in both lower courts in New York by Mr. Seymour and here by me that the President last January directed a complete review of classification of all materials.
Several secretaries of state defense and the chairman of the joint chiefs of staff authorized us then to say that they are prepared to appoint immediately a joint task force to conduct an exhaustive declassification study of the 47 volumes.
That they will conduct a study on an expedited basis and will complete it within any reasonable time that the Court may choose.
They suggest a minimum of 45 days and upon completion of the study, the Government will withdraw its objection for the publication of any documents which it is found no longer relevant to the National Security.
Justice Byron R. White: Mr. Solicitor General is the United States pressing separately your request or your cause of action for the return of the materials wholly aside from an injunction against --
Mr. Griswold: It is not involved in this case, in this Court at this time.
Justice Byron R. White: It is not?
Mr. Griswold: No.
Justice William J. Brennan: No, but is the Government pressing?
Is the Government trying to get these materials back from the Times and the Post?
Mr. Griswold: I can certainly say the Government would like to get them back.
Justice William J. Brennan: That wasn’t my question, my question is, is the Government attempting?
Mr. Griswold: The Government is not at this time seeking an order for their return.
Justice Byron R. White: Well, I thought that was part of your lawsuit -- part of your request for relief and --
Mr. Griswold: I believe it was, but we did not appeal with respect to that nor is it covered in our petition for certiorari.
Is that not right?
Justice Thurgood Marshall: Mr. Solicitor General on this 45-day study, does that depend on how we rule in this case or is the government going to do it anyhow?
Mr. Griswold: Mr. Justice, I will urge the Government to do it anyhow.
Of course, if this Court does not allow any injunction, it will be feudal because the material will be published and there won’t be any particular – entirely postmortem to say “well it was alright anyhow.”
Justice Thurgood Marshall: Well, suppose the Court decides the other way, will the study be made?
Mr. Griswold: The study is going to be made.
I will do my best to see that the study is made and I believe I have the full support of the entire administration with respect to that.
Justice Thurgood Marshall: (Inaudible)
Mr. Griswold: I’m sorry Mr. Justice.
Justice Thurgood Marshall: Would this mean (Inaudible) without this case that the Court, that the Government has the right to find out what’s available to be published.
Mr. Griswold: (Voice Overlap)Yes, Mr. Justice except that it’s a massive operation.
There isn't a slightest doubt in my mind that there has been, as long as I can remember which is quite awhile, a massive over classification of material and there has been much too slow review to provide declassification and the Government is in the process of taking steps to try to find a way to work that problem out.
Justice Thurgood Marshall: But if the -- this Court would by chance rule against you, then the Government will surely do it, wouldn’t it?
Mr. Griswold: If the Court should rule against us here, then I -- then it seems to me that it becomes moot with respect to these items, they can be published and whether we classify them or declassify them as an academic question.
Chief Justice Warren E. Burger: Well, the Court would have done a job for you, is that not so?
Mr. Griswold: Yes, the --
Chief Justice Warren E. Burger: Declassify the fact.
Mr. Griswold: The Court will in effect have declassified the materials.
Justice Byron R. White: I don’t understand that Mr. Solicitor General.
I had thought the standard that you were operating under here in terms of a prior restraint wasn’t necessarily equivalent to the standard that might be operative in a criminal proceeding and whether or not a newspaper maybe enjoined from publishing classified information does necessarily determine some criminal proceeding.
Mr. Griswold: Well, you are certainly right Mr. Justice.
If I may say so in terms of an examination question, I find it exceedingly difficult to think that any jury would convict or as an Appellate Court would affirm a conviction of a criminal offense for the publication of materials which this Court had said could be published as simply is the practical matter whether it was a crime or not.
Well, these are the same materials that were involved in the New York Times case.
All we did was publish them and I find it difficult to think that such case should be prosecuted or could if they (Inaudible)
Justice Byron R. White: But the standard concededly is not the same?
Mr. Griswold: It’s not the same issue and I repeat, I think it would be technically be a crime if the materials remain classified.
Now I would like to get on --
Justice Potter Stewart: Mr. Solicitor General, just before you do.
This brings me back to my original question a few moments ago as to what the real basic issue in this case is.
As I understand it, you are not claiming that you are entitled to an injunction simply or solely because this is classified material?
Mr. Griswold: No.
Justice Potter Stewart: Nor do I understand it that you are claiming --
Mr. Griswold: Nor because we own it.
Justice Potter Stewart: Just let me finish please, that you are entitled to an injunction because it was stolen from you, that it’s your property.
You are claiming rather and basically that how, whether or not it’s classified or however it’s classified and however it was acquired by these newspapers, the disclosure, the public disclosure of this material would pose a grave and immediate danger to the security of the United States of America.
Mr. Griswold: Yes Mr. Justice.
Justice Potter Stewart: Now, isn’t that correct?
Mr. Griswold: Yes Mr. Justice.
Justice Potter Stewart: So, declassifications vel non doesn’t have much to do with the basic issue, does it?
Mr. Griswold: I agree with you except to this part of the setting.
If this material had never been classified, I think we would have a considerably greater difficulty in coming in and saying -- well for example, suppose the material had been included in a public speech made by the President of United States.
Justice Potter Stewart: Now it would be in the public domain already?
Mr. Griswold: Alright but we come in and say, you can’t print this because it will gravely affect the security of United States, I think we would plainly be out.
Justice Potter Stewart: And the very Saggy case on the facts and that’s --[Laughter]
Mr. Griswold: Or suppose it had been --
Justice Potter Stewart: And this therefore is a fact case, isn’t it?
Until we can decide this case --
Mr. Griswold: No Mr. Justice.
Justice Potter Stewart: -- we have to look at the facts, the evidence in this case that’s been submitted under scrutiny --
Mr. Griswold: In large part, yes Mr. Justice but I’m still trying to get some help from the background and the setting which I repeat it is not irrelevant that the concatenation of words here is the property of the United States, that this has been classified under executive orders approved by Congress and that it obviously has been improperly acquired.
Justice Potter Stewart: Well, that may have a great deal to do as to whether -- as to the question of whether or not somebody is guilty of a criminal offense, but I submit it has very little to do with the basic First Amendment issue before this Court in this case?
Mr. Griswold: Alright Mr. Justice, I repeat, unless we can show that this will have grave and I think I would like to amend it the -- I know the Court’s order has said immediate, but I think it really ought to be irreparable harm to the Security of United States.
I would think with all due respect to Kelly, that the question of classification of a Court bearing on the question of the scope of review of executive classification?
Mr. Griswold: Well I think Mr. Justice that is true, but I also think the heart of our case is that the publication of the material specified in my closed brief will as I have tried to argue there, materially affect the Security of United States.
It will affect lives, it will affect the process of determination of the war.
It will affect the process of recovering prisoners of war.
I cannot say that determination of the war or recovering prisoners of war is something which has an immediate effect on the Security of United States.
I say that it has such an effect on the Security of United States that it ought to be the basis of an injunction in this case.
Now, I would like to get to the question of the standard which was used by the District Judge in this case.
I think it is relevant to point out that on page 267 of the closed -- of the transcript in the District Court before Judge Gesell, he said, “the Court further finds that publication of the documents in the large may interfere with the ability of the department under the state in the conduct of delicate negotiations now in process, not in the past, now in process or contemplated for the future whether this negotiations involve Southeast Asia or other areas of the world.
This is not so much because of anything in the documents themselves, but rather results from the fact that it will appear to foreign Governments that this Government is unable to prevent publication of actual Government communications when a leak such as the present one occurs.”
Now, thus the judge rejected as a standard in this matter the whole question of the ability of the department of state and that means the President to whom the foreign relations are conferred by the Constitution to conduct delicate negotiations, now in process are contemplated for the future.
And I suggest to the Court that it is perfectly obvious that the conduct of delicate negotiations now in process are contemplated for the future has an impact on the Security of the United States.
Now, the standard which the judge did apply is one which -- with the benefit of -- with the benefit of 20/20 hindsight, I would have written differently.
Executive order 10501 provides the basis for security classification issued by President Eisenhower in 1953 after a comprehensive study by a commission on these matters.
And the definition of top secret in Section 1 (a) of Executive Order 10501 is, “top secret shall be authorized by appropriate authority only for defense information or material which requires the highest degree of protection.
The top secret classification shall be applied only to that information or material that the defense aspect of which is paramount and the unauthorized disclosure of which could result in exceptionally grave damage to the nation such as,” now this was not intended to be all inclusive, it is illustrative, “such as leading to a definite break in diplomatic relations, affecting the defense of the United States, an armed against the United States or its allies, a war or the compromise of military or defense plans or intelligence operations or scientific or technological developments vital to the national defense” and what Judge Gesell has -- he had -- Judge Gesell has used that as the standard.
He made no reference whatever to the succeeding classification which is secret and there is also a classification which is confidential, but Judge Gesell has used as the basis of his decision and I suggest this was fundamental error that there is no proof, this is on page 269 of the transcript of the hearing before Judge Gesell, there is no proof that there will be a definite break in diplomatic relations, that there will be an armed attack on the United States, that there will be an armed attack on an ally, that there will be a war, that there will a compromise of military or defense plans and I in my closed brief, I contend that he was wrong on that, a compromise of intelligence operations and then my closed brief, I contend that he was plainly wrong on that or a compromise of scientific and technological materials.
And if the standard is that we cannot prevent the publication of improperly acquired material unless we can show in substance in effect because that’s what he really meant that there will be a break in diplomatic relations or that there will be an arm detect on the United States, I suggest that the standard which Judge Gesell used is far too narrow.
Now perhaps it lies in between.
My own thought would be that in the present (Inaudible) state of the world, considering negotiations in the Middle East, considering the SALT talks now going on and it's perhaps not inappropriate to remember that SALT is Strategic Arms Limitation Talks, the consequences of which obviously have in all likelihood not the prevention of a nuclear attack tomorrow, maybe not next week.
But only by a success in this kind of negation, can we have any hope that our children and our children’s children will have a world to live in.
I suggest that when it is found by the District Court that the publication of the documents in the large may interfere with the ability of the Department of State in the conduct of delicate negotiations now in process are contemplated for the future, that should be enough by itself to warrant a restraint on the publication of the now quite narrowly selected group of materials covered in the special appendix and dealt with in some detail in my closed brief and the related papers which had been filed with the Court this morning.
Justice John M. Harlan: Could I ask you a question before you sit down?
I had understood from your papers, and the briefs that you filed this morning that the only specific relief at this stage, at this juncture of the proceeding you are asking for is a Court of Appeals decision in the Times case should be affirmed, namely further hearings before the District Court and accorded by the Court of Appeals to go froward to conclusion and as regards to Washington Post case, you are asking only that the proceedings there be confirmed to the proceedings in the Court of Appeals in the Second Circuit.
And is therefore the broader question that you have been talking about are not before the Court at the moment?
Mr. Griswold: No, Mr. Justice.
I think I can’t agree with that.
It is our position that Judge Gesell used the wrong standard as I have just said and it is our view that the judgment of the Second Circuit should be affirmed and the case remanded to Judge Gurfein for further hearing under a proper standard which I hope this Court will develop and announce and that the decision of the Court of Appeals be reversed and the case remanded to Judge Gesell for further hearing and the application of the proper standard which this Court has decided.
Because it is our view as I have endeavored to contend that in rational terms in the modern world, the standard that Judge Gesell applied is just too narrow that and as I have said that the standard should be great and irreparable harm to the Security of United States in the whole diplomatic area, the things don’t happen at 8:15 tomorrow morning and maybe weeks or months.
People tell me that already channels the communication on which a great hope had been placed have dried up.
I haven't a slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter.
And I think that to say that it can only be enjoined if there will be a war tomorrow morning when there is a war now going on is much too narrow.
Argument of Alexander M. Bickel
Chief Justice Warren E. Burger: Thank you, Mr. Solicitor General.
Argument of Alexander Bickel.
Mr. Alexander M. Bickel: Mr. Chief Justice, may it please the Court.
We begin publishing on June 13.
We published on the 14 and the 15 with no move from the Government till the evening of the 14 despite what is now said to be the gravest kind of danger which one would have supposed would have been more obvious then it turned out to be.
Chief Justice Warren E. Burger: Well Mr. Bickel, aren’t you -- aren’t you going to allow sometime for some of the -- really see what this means before they act?
Mr. Alexander M. Bickel: Mr. Chief Justice --
Chief Justice Warren E. Burger: Meetings drawn and get lawyers into the Courts?
Mr. Alexander M. Bickel: I planned to return briefly to this point.
I point out now only that as was evident to us at the hearings when we cross examined some of Government witnesses, high ranking people in the Government quite evidently read these things on Sunday morning, the following day and no great alarm sounded.
I meant to return to the significance of this point if I could see it, I mentioned it by the way now only in the process of reciting the chronology.
We were then enjoined under prior restraint on the 15 and we have been under injunction ever since, the 11th I guess under the order of the Court of Appeals to the Second Circuit.
We would remain under injunction presumably to the July 3 with the distinct possibility of more time added after that if appellate proceedings are required.
Now a word simply on what was had before the hearing that was had before Judge Gurfein.
It took place on Friday last I believe, started first thing in the morning with open hearings.
We went in-camera as Mr. Seymour said for something upward of four hours, I don’t know the exact time.
The record will clearly show that the judges’ sole purpose in-camera and continuously expressed intent was to provoke from the Government witnesses something specific to achieve from them the degree of guidance that he felt he needed in order to penetrate this enormous record.
It is our judgment and it was his that he got very little perhaps almost nothing.
The point however that I wish to leave with you is that at no time in the course of these hearings, did the Government object to their, what is now called the speed or rapidity of them, at not point it was more time as for.
Of course we all labored as I think is only proper under the knowledge that a great newspaper was being restrained from publishing and that expedition was desirable.
But there is no evidence that I know off that Judge Gurfein rushed the proceedings or would have rushed them if the Government had asked for more time.
I think the Government gave Judge Gurfein all it had.
Now the Government based it’s complaints against us framed in very general terms on a statute.
First one section of it, finally Section 793 (e) of the statute.
We have a substantial portion of our brief that is still devoted to arguing that that statute is inapplicable.
Judge Gurfein so held it to be and I take it that the order of the Court of Appeals for the Second Circuit is at least open to the interpretation that that holding of Judge Gurfein's is not affirmed at any rate accept it.
If I may at this point take up Mr. Justice Stewart’s question to the Solicitor General, referring to our position.
We concede, we have all along in this case conceded for purposes of the argument, that the prohibition against prior restraint like (Inaudible) constitution is not an absolute.
But beyond that Mr. Justice, our position is a little more complicated than that.
Nor do we really think that the case even with the statute out of it is a simple, presents indeed a simple question of fact.
Rather, our position is two-fold. First on principles as we view them with the separation of powers which we believe denied the existence of inherent presidential authority on which an injunction can be based.
First on those and secondly on First Amendment principles which are interconnected on both the end which involved the question of a standard before one reaches the facts, it’s a standard on which we deeper greatly from the Solicitor General, on both these grounds, we believe that the only proper resolution of the case is the dismissal of complaint.
Justice Potter Stewart: What was the first ground?
Mr. Alexander M. Bickel: The first ground which I am about to enter upon is the question of the separation of powers with the statute out of this case.
Justice Potter Stewart: Yes.
Mr. Alexander M. Bickel: As I conceive it Mr. Justice, the only basis on which the injunction can issue is a theory which I think the Solicitor General holds of an inherent presidential power.
Now an inherent presidential --
Justice Potter Stewart: Based upon --
Mr. Alexander M. Bickel: His constitutional --
Justice Potter Stewart: -- the power of the executive and the area of international relationships and in the area of the defense of the --
Mr. Alexander M. Bickel: I so assume.
Justice Potter Stewart: Under the Constitution of the United States.
Mr. Alexander M. Bickel: I so assume.
The reason for that being that a Court has to find its law somewhere, as Holmes would have said I suppose of -- some legislative will must be present from which the Court draws the law that it can apply.
Then that legislative will has to be the President's, if there is no statute.
Now, I don’t for a moment argue that the President doesn’t have full inherent power to establish a system of classification.
That he doesn’t have the fullest inherent power to administer that system and its procedures within the executive branch he has his means of guarding security at the source.
In some measure, he is aided by the criminal sanction, but anyway he has full inherent power and the scope of judicial review of the exercise of that power will presumably vary with the case in which it comes up, but I’m prepared to concede the decision in the Epstein (ph) for example which is cited I think in both briefs.
Briefs that under the Freedom of Information Act, the scope of review is limited, limited to examining whether it is (Inaudible).
Nor do I argue the -- that the President doesn’t have standing in the sense in which Baker and Karr distinguishes between standing and justiceability.
Standing to come into Court which is I think the burden of most of the cases that the Government cites.
The question that I do argue is whether there is inherent presidential power to make substantive law not for the internal government of -- internal management of the government, but out going -- out looking substantive law which can form the basis for a judicially issued injunction imposing a prior restraint on speech.
The decisive issue that ties in at this point and our ultimate First Amendment point is of course the exception carved out by Chief Justice Hughes in Near v. Minnesota for those -- that narrow area in which he accepted that a prior restraint on speech might be applied.
This is an exception that is made to a rule more solidly entrenched in the First Amendment and any other aspects of it or rule that is deeply part of the formative experience out of which the First Amendment came, the rule against the prior restraint, based on the experience that prior restraints fall on speech with a special brutality and finality and procedural ease of all their own which distinguishes them from other regulations of speech.
If a criminal statute chose speech, a prior restraint freezes it.
It’s within that well established doctrine that the exception arises.
Now, as Chief Justice Hughes formulated it, it referred to, he actually said, “we would all assume that a prior restraint might be possible to prevent actual obstruction of the recruiting service, this is the Chief Justice language, or the publication of sailing dates of transports or the number and location of troops.”
I suppose that under present law, the recruiting service part of that exception is problematic, but on the sailing dates of ships and the location of troops, there is a very specific statute.
It is 18 U.S.C. 794 which isn't cited -- hasn’t been cited against us which again applicable which is why it hasn’t been cited against us because that’s not what we report, that’s not -- that isn’t in our papers.
Now, that being the case, there is no applicable statute under which we are covered and the question arises as a matter of inherent presidential authority, what kind of feared event would give rise to an independent power on the part of the President?
It’s the question of in a sense that was saved in Hirabayashi versus United States, the first of the Japanese exclusion cases.
And it’s a question which in its own context of course, Youngstown Sheet & Tube Company v. Sawyer answered in the negative.
Now, my suggestion would be that whatever that case, that extremity, absolute other extremity in which action to save for the public safely is required.
Whatever that case maybe in which under this Constitution under its rules of separation of powers, the President has independent inherent authority to act domestically against citizens, let alone to impose a prior restraint, whatever that case maybe, it cannot be this case.
Whatever that case maybe, it sure is a magnitude of an obviousness that would lead to the eye and that’s why in part Mr. Chief Justice, I mentioned at the beginning the period of time that has passed.
I would suppose that stretching our imagination and trying to envision that case, the one characteristic of it, suggested indeed by the example of Chief Justice Hughes recited, suggested by the phrase that the Second Circuit used which is probably why the Solicitor General resists the word immediate.
The Single characteristic that we can surely, immediately see of such an imagined event, would be that it’s obvious, that the public safety is in issue, the time of the essence.
I submit that that cannot be this case.
It cannot be that it has taken, that it has to take the Government which has been reviewing this documents for many months, not just in connection with this case but in reply to an inquiry made by Senator Fulbright is the record of our hearings in New York shows, it cannot be that a Government consisting after all of more than just the three witnesses, five witness that we heard in New York or the ones that were heard here, over this length of time has an unfamiliar -- unfamiliarity with these documents, substantially they might be which is so great that when news of their publication comes up, no body in the Government knows that somewhere in those documents is one which presents a mortal danger to the Security of the United States.
And I would submit secondly that while error is always possible, judge Griffin and the Court of Appeals for the Second Circuit which affirmed them on the record that he had before him and Judge Gesell in the Court of Appeals here, all those judges can't have been that wrong.
Justice Harry A. Blackmun: Mr. Bickel, this isn’t your case, but reading from Judge Wilkey’s dissent --
Mr. Alexander M. Bickel: Yes sir.
Justice Harry A. Blackmun: -- when I say harm, I mean the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies.
The inability of our diplomats and negotiators, honest brokers between would be belligerence.
I take it you disagree fundamentally with that statement?
Mr. Alexander M. Bickel: Not entirely, Mr. Justice Blackmun, for example the death of soldiers.
I would disagree that that impairment of diplomatic relations can be a case for a prior restraint, I would say even under a statute.
I would not disagree that the death of soldiers as in troop ship or as an example, Chief Justice Hughes did.
The difficulty I would have would be that nothing that any of these judges including Judge Wilkey because he I suppose is talking about what might be shown by the Government, nothing that any of these judges have seen is related by a direct casual change to the death of soldiers or anything grave of that sort.
What characterizes, I have heard it and everything I have read, what characterizes every instance in which the Government tries to make its case factually is a chain of causation whose lengths are surmised and speculation, all going toward some distant event itself, not of the gravity that I would suggest is offensive.
Justice Harry A. Blackmun: You know these records better than I do, but again going back to Judge Wilkey, he says, “but on careful detailed study of the affidavits and evidence, I find a number of examples of documents which if in possession of a Post and I repeat this is the Post case, and if published would clearly result in great harm to the nation.
Now I repeat my question, you therefore disagree fundamentally to what he seems to say?
Mr. Alexander M. Bickel: Well, I beg your pardon Mr. Justice, I am not familiar and I should be with the Washington Post case.
I had thought that Judge Wilkey talked about -- dissented on the ground that he would like more evidence to come in.
If he found -- if this is a statement about the evidence that he heard or that was heard before Judge Gesell then depending on what the standard is that he has in mind, I would think that language doesn’t quite communicate to me what the standard is and I doubt that it’s the standard that I would contend, the narrow standard that I would contend for, depending on the standard that he has in mind, he is either wrong about a standard or seven judges disagreed with him, but I’m sorry.
I’m not sufficient familiar with the Washington Post case.
Justice Byron R. White: Professor, you stand -- you are contending for this grave and immediate or not?
Is that --
Mr. Alexander M. Bickel: The standard --
Justice Byron R. White: -- futile for you?
Mr. Alexander M. Bickel: The standard that I would contend for and the difficulties of words are simply enormous, one has to --
Justice Byron R. White: Surely.
Mr. Alexander M. Bickel: -- bring in to those mind an image of something, some event and try to describe it.
The standard that I would contend for would have two parts of it.
One would be and let me also say that I would differentiate between a standard applicable to the President acting on his own.
The President acting in the case saved pre se Hirabayashi for example and a prior restraint being imposed pursuant to a well drawn statute which defines the standard in the case.
I would demand less of the statute than I would demand to the President.
But the standard in general that I would have in mind would at one end have a great event, a danger to the nation.
Some of the things described in the top secret, in description of top secret classification in the executive order, Solicitor General read off, would I think fit that end of the standard.
At the other end would be the fact of publication and I would demand and this would be my second element that the chain, the length between the fact of publication and the feared danger, the feared event be direct and immediate and visible.
Justice Byron R. White: So you, I take it then that you could easily concede that there maybe documents and these 47 volumes which would satisfy the definition of top secret in the executive order and nevertheless would not satisfy your standard?
Mr. Alexander M. Bickel: That would be chiefly for the reason that as is notorious.
Classifications are imposed --
Justice Byron R. White: No and my question was -- let's concede for the moment that there are some documents --
Mr. Alexander M. Bickel: Which are properly.
Justice Byron R. White: They are properly classified top secret.
You would say that does not necessarily mean that your standard is satisfied.
Mr. Alexander M. Bickel: That’s correct, Mr. Justice.
I would say that parts of --
Justice Byron R. White: I take it, I don’t have and read anything in any of your documents or any of this cases which the newspaper suggest for a moment that there is no document in these 47 volumes which satisfies the, properly the definition of top secret.
Mr. Alexander M. Bickel: That there is no -- well, no.
I don’t know about --
Justice Byron R. White: Well you don’t deny that, do you?
Mr. Alexander M. Bickel: I have no knowledge.
I’ve never been near the documents Mr. Justice.
Justice Byron R. White: Well I know but -- so but your position must be then that even if there is a document or so, none of them satisfies your standard?
Mr. Alexander M. Bickel: I would say that today I had, if asked that question on the day we appeared, at the day I appeared before Judge Gurfein on a temporary restraining order, my answer would have been, I expect not, I trust the people at Times.
I -- I’m fairly certain not, by now, Mr. Justice after all this time having read the submissions of the Government although I was hit with another one this morning, not a separate submission, but an explication of the earlier ones but I haven’t had a chance to glance at, yet this literature like some scholarly literature tends to get ahead of us.
Having read the submissions of the Government, I am flatly persuaded that there’s nothing in there because if there’s nothing that would meet my standard in there for a statute or for a independent executive action because if there were, it surely should have timed out by now.
It cannot be that after I gather, the Solicitor General had the same experience yesterday afternoon that I saw Judge Gurfein have it.
Please show me?
Now which are the three, which are the five, which are the ten?
Which are the most important of these?
All that one ever got, all that I’ve ever heard have been statements of the feared events in terms of effect on diplomatic relations.
If it’s a military matter, why then in terms of the addition of a possible cause to a train causal factor, to a train of event that’s well on the rails as is and propelled by sufficient other factors.
That sort of statement is the only thing we’ve heard and I would submit that that does not meet any possible First Amendment standard.
It doesn’t meet it either in the statement of the seriousness of the event that’s feared or what is more important and more obvious in this case in the drawing of the link between the act of publication as the cause of that event and the event that is feared.
That link is always I suggest speculative, full of surmises and a chain of causation that after its first one or two links, gets involved with other causes operating in the same areas, so it becomes -- so that what finally cause of the ultimate event becomes impossible to say which the effective cause was.
And my -- the standard that I would propose under the First Amendment would not be satisfied by such showing.
Justice Potter Stewart: And your standard is that it has to be an extremely grave event to the nation and it has to be directly, approximately caused by the publication?
Mr. Alexander M. Bickel: That’s exactly correct.
Justice Potter Stewart: And I gather then that your basic argument with the statutory or the regulatory definition of top secret is with the word “could” because that definition says unauthorized disclosure which could result in blah, blah, blah?
Mr. Alexander M. Bickel: Yes, I was addressing myself only to the events --
Justice Potter Stewart: You would insist that it would probably result --
Mr. Alexander M. Bickel: I would insist that for purposes certainly of any action in the President’s inherent power which is the case before us.
Justice Potter Stewart: Now Mr. Bickel it’s understandably and inevitably true that in a case like this, particularly when so many of the facts are under seal, it’s necessary to speak in abstract terms?
Mr. Alexander M. Bickel: Yes sir.
Justice Potter Stewart: But let me give you a hypothetical case.
Let us assume that when the members of the Court go back and open up this sealed record, we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers, what should we do?
Mr. Alexander M. Bickel: Mr. Justice, I wish there were a statute that covered it.
Justice Potter Stewart: Well, there isn’t, we agree or you submit, so I’m asking in this case what should we do?
Mr. Alexander M. Bickel: I’m addressing a case which I am as confident as I can be of anything, Your Honor, will not find when you get back to your chambers.
It’s a hard case.
I think it would make bad separation of powers, but it’s almost impossible to resist the inclination not to let that information be published of course.
Justice Potter Stewart: As you know, as I’m sure you do know, the concern that this Court now has term after term with people who have been convicted and sentenced to death, convicted of extremely serious crimes, you know, that the capital cases and I’m posing you a case where the disclosure of something in these files would result in the death of people who --
Mr. Alexander M. Bickel: You are posing or --
Justice Potter Stewart: -- or nothing.
Mr. Alexander M. Bickel: Your opposing the case of course Mr. Justice in which that element of my attempted definition which refers to the chain of causation.
I mean, --
Justice Potter Stewart: I suppose in a great big global picture, this is no --
Mr. Alexander M. Bickel: No --
Justice Potter Stewart: This is not a national threat.
Mr. Alexander M. Bickel: No sir.
Justice Potter Stewart: There are at least 25 Americans killed in Vietnam every week these days.
Mr. Alexander M. Bickel: No sir, but I meant -- it’s a case in which the chain of causation between the act of publication and the feared event, the death of this hundred young man is obvious, direct, immediate.
Justice Potter Stewart: That’s what I’m assuming --
Mr. Alexander M. Bickel: That’s right.
Justice Potter Stewart: -- in my hypothetical case.
Mr. Alexander M. Bickel: I only say as to that that it is a case in which in the absence of a statute, I suppose most of us would say --
Justice Potter Stewart: You would say the Constitution requires that it be published and that this men die, is that it?
Mr. Alexander M. Bickel: No.
I’m afraid I have -- I’m afraid my -- the inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case to that sort.
I would wish that Congress took a look to the seldom used and at the seldom used and not very -- in not a very good shape Espionage Act and clean them up so that we could have statutes that are clearly applicable within vagueness rules and what not and so that we that we don’t have to rely on presidential power.
But the burden of the question is do I assume that the event has to be of cosmic --
Justice Potter Stewart: Nature question.
Mr. Alexander M. Bickel: Well, no sir.
The examples given by Chief Justice Hughes himself are not.
A troop ship is in the sense that hundred men or the location of a platoon is in the sense that hundred men.
I don’t assume that.
I have -- I do honestly think that that hard case would make very bad separation of powers.
Chief Justice Warren E. Burger: Professor Bickel, let me alter the illustration a little bit, the hypothetical.
Suppose the information was sufficient.
The judges could be satisfied that the disclosure of a link, the identity of the person engaged in delicate negotiations having to do with the possible release of prisoners of war, the disclosure of this would delay the release of those prisoners before a substantial period of time.
Now this and I’m posing that so that it is not immediate, is that or is that not in your view of matter that should stop the publication and therefore avoid the delay and the release of the prisoners?
Mr. Alexander M. Bickel: Mr. Chief Justice, on that question which is of course a good deal nearer to what’s bruited about anyway in the record of this case.
I can only say that unless which I can imagine can be possible, the link of causation is made direct and immediate.
Whether the -- even though the event might be somewhat -- somewhat distant, but unless it can be demonstrated that it is really true if you publish this, that will happen or there is a high probability rather than as is typical of those events.
There are 17 causes feeding into them.
Three of those are -- anyone of those other than the publication is entirely capable of being the single effective cause.
And the real argument is, well you add publication to that and it makes it a little more difficult.
I think Mr. Chief Justice that that is a risk that the First Amendment signifies that this society is willing to take, that is part of the risk of freedom that I would certainly take.
Chief Justice Warren E. Burger: I get a feeling from which you have said, although you haven’t addressed yourself directly to it that you do not weigh heavily or I think the Courts should weigh heavily the impairment of sources of information either diplomatic or military intelligent sources.
Mr. Alexander M. Bickel: Mr. Chief -- I’m sorry.
Chief Justice Warren E. Burger: I get the impression that you wouldn’t consider that enough to warrant the -- an injunction.
Mr. Alexander M. Bickel: In the circumstances of this case Mr. Chief Justice that there -- I think it -- I’m perfectly clear in my mind that the President without statutory authority, no statutory basis goes into Court asks for an injunction on that basis, that if Youngstown Sheet & Tube Company v. Sawyer means anything, he does not get it.
Chief Justice Warren E. Burger: Well then let me --
Mr. Alexander M. Bickel: Now --
Chief Justice Warren E. Burger: Make --
Mr. Alexander M. Bickel: Where under a statute, we don’t face it in this case and I really don’t know.
I’d have to face that if I saw it.
If I saw the statute, if I saw how definite it was.
Under the statute, there is a difference because the First Amendment provides that Congress shall make no law breeching freedom of the press.
Mr. Alexander M. Bickel: Well --
And you could read that to mean Congress may make some laws, breeching freedom to press?
Mr. Alexander M. Bickel: No sir.
Only in that I have conceded for purposes of this argument that some limitation, some impairment of the absoluteness of that prohibition is possible and I argue that whatever that maybe, whatever that maybe it is surely at its very least when the President acts without statutory authority because that inserts into it as well as separation of powers.
(Inaudible) argument for the times to be making, that Congress can make all this illegal by passing laws?
Mr. Alexander M. Bickel: Well, I didn’t really argue that Mr. Justice.
At least I have -- I hope --
That was a strong impression you left in my mind?
Mr. Alexander M. Bickel: Well, I replied to the Chief Justice on a case that arose without a statute and far distinguished because its crucial to the -- for purposes of this case to distinguish between the authority which is here claimed of the President to act independently without a statute and the possibly greater authority of the whole Government through the machinery of legislation to act in similar premises of which I concede nothing that I don’t have to Mr. Justice.
Chief Justice Warren E. Burger: Professor Bickel, I have one question that’s prompted by this exchange.
Generally speaking, there are, as I understand it, no statute is granting immunity to newspaper reporters from disclosing their sources, but there is a firm claim made by newspapers, by reporters and there have been a number of cases on that.
If I read the briefs and the accounts of those other cases in California and several other places, claim of the newspaper is that the First Amendment protects them from revealing their source even to a grand jury in the investigation of criminal matters because otherwise, the newspaper sources would dry up.
Now, that’s generally the thesis of the press, is it not?
Mr. Alexander M. Bickel: Well, there are some cases that are on this Court’s docket as you know Mr. Chief Justice for next fall.
One of them with which I’m most familiar is the Caldwell case from California in which there was a refusal to reveal sources upheld by the Court of Appeals for the Ninth Circuit even to the point of not requiring an appearance before the grand jury.
But the claim is very substantially qualified, that is to say Caldwell holds, one doesn’t know how far that might be taken and perhaps some of the other cases will require the argument to take it somewhat farther, but Caldwell on its own holds that in circumstances where the Government, as indeed Attorney General Mitchell’s regulations themselves provided, which are issued after the Caldwell case started.
In cases where the Government hasn’t shown a clear necessity for the evidence, hasn’t shown that it hasn’t been able to get it elsewhere, hasn’t show that it’s central, inescapably central to the proof of whatever crime it is that the grand jury is investigating that in those circumstances where the claim of confidential communication is made by the reporter, there is a sufficient First Amendment interest to protect that claim on the theory that if confidential sources dry up and they -- the theory runs would dry up because there were no protection of confidentiality, there would be a diminished flow of news.
I know that --
Chief Justice Warren E. Burger: Yes, but the argument then is that the newspapers, newspaper reporters claim for themselves a right which this argument now would deny to the Government?
Mr. Alexander M. Bickel: Mr. Chief Justice, I know there is an appearance of unfairness or unevenness about it, but I think the answer that a reporter would make and an answer that I find wholly persuasive is that neither in this case nor in a case like Caldwell does the New York Times or does a reporter claim something for himself, but rather that the claim is made in order to vindicate the First Amendment and those interests which that great document serves.
Argument of William R. Glendon
Chief Justice Warren E. Burger: Thank you.
Mr. William R. Glendon: Mr. Chief Justice, Your Honors, General Griswold, Mr. Bickel, I think it might be helpful if I address my attention to the facts which lie behind these cases or this case, the Washington Post case as it comes before Your Honors.
Because, I think we have heard here a familiar plea, familiar to what has been involved in this case over this last intense week that some more time is needed while the First Amendment is suspended.
We first face this question, Judge Gesell did some week ago and after a hearing on the temporary restraining order, unconvinced by the generality and lack of specificity, he denied the temporary restraining order.
The Government has a course with its right promptly went up to the Court of Appeals and in an extraordinary late session, everything has been -- everything has been late I may say in this case, late hours, the Court of Appeals two to one judges Rob and Judge Robinson granted a temporary restraining order to the Government to give them some time and thus for the second time in two weeks and the second time in 200 years, the United States succeeded in obtaining a temp -- prior restraint against the press.
Now, the Court of Appeals stated -- the Court of Appeals stated -- in its order that it would set -- send it back, send it to the District Court and the District Court would try it to determine whether the granting of an injunction with a publication of material would so prejudice the defense interest of the United States are a result in such irreparable injury to the United States as to justify the extraordinary relief that was asked to it, a prior restraint.
Justice Potter Stewart: Before you proceed Mr. Gendon --
Mr. William R. Glendon: Yes sir.
Justice Potter Stewart: -- you agree that that is the proper test?
Mr. William R. Glendon: I think that’s a proper test Your Honor, yes.
That’s the test that we tried the case under and I think the implications of the words may require some development and I’m sure there will be arguments as to exactly what those words mean.
But that’s the test we tried to -- we tried the case.
Justice Potter Stewart: And then would you repeat the words, so that I’ll have them in mind?
Mr. William R. Glendon: So prejudiced, so prejudiced the defense interests of the United States result in such irreparable injury to the United States as would justify restraining the publications.
Justice Potter Stewart: And that would not cover the simple death, say of a hundred or 200 young men?
Mr. William R. Glendon: Well, Your Honor let’s say, that’s a hard case, obviously.
I’m trying and I think we all have to measure this case in the light of what we have before us and what we know we have before us.
Justice Potter Stewart: Well we have a lot of things under seal that I don’t want to have and --
Mr. William R. Glendon: Yes and I’m --
Justice Potter Stewart: I’ve seen some off but haven’t --
Mr. William R. Glendon: I’m going to address myself to those, Your Honor, and I’m going to point out as the best I can within the limits here and as did other Courts and the Government has not yet brought anything like that case to Your Honors, nothing like it and what we have heard, Your Honor, is much more in the nature of conjecture and surmise.
Chief Justice Warren E. Burger: Can anyone know in any circumstance the consequences of disclosure of sources of information for example, the upsetting of negotiations if that were hypothetically true in Paris or possible negotiations that we don’t know anything about, for the release of war prisoners, that sort of thing.
How does a Government meet the burden of proof in the sense that Judge Gesell laid it down.
That doesn’t bring any battleships to the outer limits of New York Harbor or set off any missiles but would you say that it’s not a very grave matter?
Mr. William R. Glendon: Your Honor, I think if we are to place possibilities or conjecture against suspension or abridgment of the First Amendment, the answer is obvious.
The fact, the possibility or conjecture of the hypothesis that diplomatic negotiations would be made more difficult or embarrassed, does not justify and this is what we have in this case and I think it's all we know, does not justify suspending the First Amendment, yet this is what’s happened here.
Conjecture can be piled upon surmised, Judge Gurfein used the word (Inaudible) and I’m sure used it respectfully.
But he said when there is a security breech, people get the juris.
And I think as the -- maybe the Government has a case of the juris here, but that I submit does not warrant the -- stopping the press in this matter in the absence of a showing.
And I like to turn to that because this matter as I don’t have to say, does not come undeveloped before Your Honors.
Two fine District Court Judges, two fine Court of Appeals have considered this and in each I think it’s fair to say even in the New York case, the Government did not meet its burden.
And so it says to us, but one more time, just one more time and this is where I was a moment ago when I said that Judge Rob and Judge Robinson agreed to give them a chance.
Now we had a hearing in the District of Columbia and I like to, if I may, comment upon what the Government said and it said it twice about that hearing because really Your Honors are being asked to -- on a representation and it's a I know a sincere representation by General Griswold, but on a representation if we are given some more time, maybe we can find something.
But here is what the Government says in its brief and it said it again yesterday.
They said in New York, the Government was not able to present to the Court all of the evidence relating to the impact of the disclosure of this material upon foreign relations and national defense that it was able to present to the District Court in the Washington Post case.
We had and the Government was accorded the fullest hearing that it wanted.
We had -- we started at the unusual hour of 8:00 in the morning.
The Government’s case proceed it through the luncheon hour.
We cross examined as we thought it was necessary.
The Court had plenty of time to consider the matter he delivered, I think you agree, whether you agree with this result, a finely reasoned opinion.
So there was no rush and no pressure.
Then the matter went up to the Court of Appeals and there and the Court of Appeals had a session some three hours the next day.
And I might say too and I think this is perhaps important, there’s been no restriction on the Government's latitude because they did have this in-camera hearings which frankly was very difficult from our point of view to deal with.
But they did have them and they had it in-camera hearing in the Court of Appeals.
So to say now that we need more time, I think does not measured up to the other side, the other side of the equation which you're being asked to do and that is to restrain two newspapers while others are publishing from giving their readers the news.
And it is of course their readers that we feel.
I think properly their rights are involved too.
Their right to know and I’m talking about currency and immediacy there is now involved in this country, the country is on gage and in intense national debate.
Things are happening this week on that score.
These lawsuits undoubtedly precipitated the executive to turn over these documents to the Congress.
Now Senator Fulbright as I’m sure you’re all aware have been trying for some two years I understand to get these documents.
And I think it’s of interest here because we're dealing with this case and these documents and I think classification is important here in your consideration of these cases because these documents were classified top secret.
Now they were classified top secret because some unknown individual was not presented to the Court whose subjective judgment couldn’t be explored despite the district judge asking that he’s be brought in.
Perhaps it was a good reason, we don’t know, decided that they were top secret, they were all top secret because one was top secret.
There had been no review of these documents except for a one individual who said that he had been reviewing them for some two years for sensitivity and the sensitivity arose from Senator Fulbright's frequent request to get these documents so the Congress could make the laws and perhaps the public would be informed.
Does the record show how long the Post had these documents in his possession.
Mr. William R. Glendon: How long it is -- in his possession, it does not show Your Honor.
Chief Justice Warren E. Burger: Does it show, if you know how long when there are times have the documents in their possession before the Post got it?
Mr. William R. Glendon: The record in our case does not show that Your Honor, but I have read and perhaps this gentleman, Mr. Bickel can answer that and I understood they had it in their possession for some months or month or two.
Chief Justice Warren E. Burger: I got that impression somewhere, three to four months.
Mr. William R. Glendon: Yes.
Unknown Speaker: I don’t believe it’s in the record.
Mr. William R. Glendon: It is not in the record, but that’s my best answer to that.
Now, after this proceeding was brought and I think again it has filed the significance of this proceeding and during the course of it, although starting out at the point that these documents were top secret and none could be disclosed, the Government has offered to review them and perhaps some of them they say will be declassified which I suppose are some sort of admission that the original classification and the original attitude towards them was wrong.
Chief Justice Warren E. Burger: Of course it could be that something classified in 1965 and properly but be no longer subject to classification or even 69 or 70, isn't that true?
Mr. William R. Glendon: That is correct, Your Honor and furthermore, some of these documents were classified, go back of course to 1945, the documents of that ancient.
The document itself is entitled the history, it’s called the history and from what I have seen of it, that’s what it is.
Now, the Court in our case had before it and Your Honors will see the evidence which I’m aware that apparently has been -- there has been today additional references made to the documents, but it is a fact and I think it’s a significant fact that the judge -- they are asked the Government to show them a document.
These extravagant claims were made and I say this respectfully, but, this has been a case of broad claims and narrow proof.
Substantial claims have been made and if you accept them, they would be worried, but we’re talking here about proof.
Chief Justice Warren E. Burger: Was there an order at anytime to produce all the documents in the possessions of the either of the Newspapers for examination?
Mr. William R. Glendon: The Government -- there was not Your Honor.
Chief Justice Warren E. Burger: Was there a request for such an order?
Mr. William R. Glendon: The Government made such a request and because of the concern that the newspaper has as to protection of its source, the documents we were advised would indicate the source.
Chief Justice Warren E. Burger: What you mean that --
Mr. William R. Glendon: That the documents that we had would indicate the source.
Chief Justice Warren E. Burger: Who denied that request, the District Judge?
Mr. William R. Glendon: Yes, and here is it how it resulted.
Chief Justice Warren E. Burger: He left that override the Federal Rules of Civil Procedure on discovery?
Mr. William R. Glendon: Here is he resolved the matter, and I think he did it very fairly Your Honor.
He said if you are not willing to produce the documents, we do not have all the documents, but if will not produce all the documents because of your claim of First Amendment source protection then I will assume that you have all the documents.
And therefore, the Government can show me any document, show me any document and I will accept that as being in your possession for the purpose of the case.
And I think that was a very -- in the circumstances, a very fair way to do it.
I --- no more than any other lawyer like to be In that position, but I have to respect my client’s assertion which is a substantial and I think a valid assertion that a newspaper is entitled to protect its source and so that’s the way it was.
Chief Justice Warren E. Burger: Mr. Glendon, I recall an ancient doctrine of equity that about people who come into equity and certain burdens on them.
Doesn't it strike you rather extraordinary that in a case which largely centers on protection of sources, the newspapers are making and refusing to reveal documents on the grounds that they must refuse in order to protect their sources?
Mr. William R. Glendon: Your Honor, I don’t understand that that is the issue here.
I think -- I don’t know --
Chief Justice Warren E. Burger: The issue, it say that -- it’s really -- it’s in this case.
Mr. William R. Glendon: This is only --
Chief Justice Warren E. Burger: To the proceeding and there are certain standards about people coming into equity, coming in with clean hands as one of them and prepared to do equity.
Mr. William R. Glendon: We did not come into equity.
The Government came into equity but I don’t --
Justice Potter Stewart: You were brought in?
Mr. William R. Glendon: We were brought in kicking and screaming, I guess is --[Laughter]
Chief Justice Warren E. Burger: You are now in the possession -- in the position of making demands on First Amendment and you say the newspaper has a right to protect its sources, but the Government does not?
Mr. William R. Glendon: I see no conflict, Your Honor, I see no conflict at all.
We're in the position of asking that there not be a prior restraint in violation of the Constitution imposed on us and that equity should no do that.
We are also in the position of saying that under the First Amendment, we are entitled to protect our sources, and I find -- frankly I just don’t find any conflict anywhere Your Honor.
The record shows, and I think this is important in Your Honor's consideration too, we are, as I said, talking about -- we are talking about allegedly top secret documents and the record shows that these misnomers are of the secret and top secret, on and perhaps in the breech in Washington and the way the Government does business and the way it has perhaps to do business, but it is certainly true, there is massive, all the classification of documents in Washington, we have in the record instances where one Government official or another has quite clearly indicated that while everything on his desk maybe classified in one fashion or another, in fact perhaps 1%, 2%, 5% of it really is classified and I think that’s a realistic fact of life here.
We also have clearly in the record that the Government and the press who have some mutual, perhaps antagonism isn’t quiet the word but they are naturally in opposite corners.
The press is trying to get as much news as it can.
The Government particularly where it maybe embarrassing or where it maybe overly concerned or may feel is embarrassing or may in Judge Gurfein's words have the jurors is trying to prevent that sometimes.
In other occasions, the Government engages itself in leaks because some official will feel that in the public interest, it's well for the public to know and that overrides any particular judgment of our security or classification.
And the record Your Honors will find as replete with instances where leaks of confidential secret, top secret material have been given to the press or the press have found them out and published them and of course nothing has happened.
Now, I think that’s significant because here, this is sort of thing we feel we're talking about.
As far as classification itself is concerned and you will remember that the documents that we are talking about are a mixed bag, they have --
Justice Byron R. White: Mr. Glendon, would you be making the same argument if your client had stolen these papers?
Mr. William R. Glendon: I don’t think that the source, I don’t think that how we acquired on Your Honor features in this case --
Justice Byron R. White: Well, then it wouldn’t make any difference, the leak aspect has no -- it has no relevance to the case either then?
Mr. William R. Glendon: I think it’s relevant as background because this is not -- this is the way that --
Justice Byron R. White: Well, then it would be relevant if you stole them?
Mr. William R. Glendon: I think so.
Justice Byron R. White: And you’d be making the same argument if your client sent an agent into the Government and stole these papers and then the Government attempted to restrain publication of them?
Mr. William R. Glendon: I just don’t think that the -- I don’t think that the manner in which we --
Justice Byron R. White: Well that one is irrelevant as the other?
Justice Thurgood Marshall: Well it is because if the Government will leak 47 volumes at the time --
Mr. William R. Glendon: Well, Your Honor I think if you examine the -- that’s certainly not true.
That's certainly not customarily and the size here is different.
But I think that you will find Your Honors in the affidavits that we have attached to, and exhibits that we have attached to our affidavits indicating secret stories, allegedly secret, based on the secret information.
There’s probably more secret information there then you will find them into these documents if you examine them.
I started to --
Justice Thurgood Marshall: What basis did it have on this case?
Mr. William R. Glendon: I think it’s simply a matter of background Your Honor and atmosphere to show that this is not an untoward or unknown situation and when we hear about how our foreign allies or our foreign friends will be shocked or appalled or anything else, it’s something not so.
This is -- this happens.
This is one of the facts of life.
I tried to – I was starting to advert to the District Judge telling the Government to show it which is what he was supposed to do.
That’s what the Court of Appeals sent it back for and he requested to show these documents, these top secret documents, they were in the Courtroom and the Government was invited and it has been invited to show and let’s look at what we’re talking about instead of dealing just with abstractions and conjectures.
Now, this was on the so called secret transcript and I’m not going to avert to it other than to say that the one document that the Government produced in response to this invitation was set forth, certain options with reference to the war and I won’t go any further than that, which I think any high school boy would have no difficulty in either putting together himself or readily understanding.
All of them are on the public press.
Now this is a sort of proof we've been faced with and this is the world of whisk that we’ve been chasing.
Justice Harry A. Blackmun: Well, Mr. Glendon, then I come back to you with the same inquiry I made to Professor Bickel.
At least, it was close enough to persuade one judge of the Court of Appeals to disagree with what you’ve just said?
Mr. William R. Glendon: Well Your Honors -- Your Honor, that is true.
I’d like to avert to fact that the other members of the Court of Appeals felt constrained after they read that particular dissent.
Just yesterday they issued an amendment to their opinion in which they reiterated that they disagreed with Judge McKinnon – Judge Wilkey, which to me was some indication of the strength and depth of their feeling, but Your Honor is right.
There is a Judge Wilkey felt and I said to Your Honor that that in my -- I say it respectfully is not based on the record.
There is nothing in the record that I know off that would and -- I think I know the record, as far as the one disclose to me there are some perhaps new material this morning.
Is not -- but as far as the record has been disclosed to me, there is absolutely nothing to justify that statement and I -- as I say the Court of Appeals felt strong enough about it to issue another statement, to issue an amendment in which they specifically said they disagree.
Justice Potter Stewart: This then really is, the issues in this case really are factual issues, aren’t they?
Mr. William R. Glendon: Well --
Justice Potter Stewart: I mean, though I understand it and this is -- that’s my understanding initially, I haven’t heard anything really to --
Mr. William R. Glendon: Largely -- yes.
Justice Potter Stewart: -- upon my understanding, you agree that an injunction could issue despite the First Amendment if it were shown, proved by the Government that there was something here, disclosure of which would directly cause a great irreparable and immediate danger to the country, you agree that an injunction could issue.
You just simply say they have shown nothing of the kind, isn’t that right?
Mr. William R. Glendon: I -- they have shown nothing of that kind or by any other measurable standard that I understand could possibly be involved in this case.
Would you take the top --?
Justice Potter Stewart: So that’s a matter of fact?
Mr. William R. Glendon: -- take the top secret definitions or anything else, yes, but there is something behind us too as I -- which I think perhaps is illegal issue and that’s the scope of the review here.
Justice Potter Stewart: Scope of review of what?
Mr. William R. Glendon: Review of the findings of the District Court.
Justice Potter Stewart: Of fact, of findings of fact under Rule 52 A, isn’t it?
Mr. William R. Glendon: That’s right.
Justice Potter Stewart: So it's factual issue.
Mr. William R. Glendon: Yes and there is one legal question, perhaps I’ll come later and that is the futility of an injunction here, but I want to --
Justice Byron R. White: Well, then I think if you do a certain comparison, not a single document in these 47 volumes which is now entitled a top secret classification as defined in the executive orders.
Mr. William R. Glendon: No sir.
I assert this Your Honor and I’m involved in the --
Justice Byron R. White: You said he has testified top secret standard or any other --
Mr. William R. Glendon: Any other standard I’m talking about.
I don’t -- I think that the standard is reasonably clear here, but whether you use words such as gravely prejudice to United States or irreparably injure the defense of the United States, whatever the standard maybe.
Justice Byron R. White: Well some standard as they are more specific by the test to top secret classification?
Mr. William R. Glendon: Yes.
Justice Byron R. White: That’s the standard?
Mr. William R. Glendon: Yes sir.
Justice Byron R. White: You would say a proper standard (Inaudible)
Mr. William R. Glendon: Clearly.
Justice Byron R. White: By any doubt?
Mr. William R. Glendon: By anything the Government has brought forward.
Justice Byron R. White: By any doubt that these secrets, I wonder what specified --
Mr. William R. Glendon: Well Your Honor, the Government came in the Court.
They suspended the First Amendment.
They stopped us from printing and they said they were going to prove this and this is an injunction proceeding.
Now, it may be that the Government would feel that the Court should become the defense department's security officer and they should -- that the Court should delve into this pile of paper and 47 volumes and on its own from time to time whenever they so moved.
The Government is so moved that they should -- the Courts should look from them.
I say Your Honor, in our system, as I understand it, when you bring a case; you’re supposed to prove it and when you come in claiming irreparable injury, particularly in this area of the First Amendment, you have a very, very heavy burden.
Justice Byron R. White: Do you agree that Judge Gesell would find the top secret definition he is going to ask?
Mr. William R. Glendon: Yes, I think that’s -- that that would appear from his opinion.
Justice Byron R. White: That's what he thinks?
Mr. William R. Glendon: He looked at it that way from his opinion, yes Your Honor.
As far as I can determine from --
Justice Byron R. White: (Inaudible)
Mr. William R. Glendon: Yes, I think that that fits in clearly to what we're talking about under the doctrine of Near v. Minnesota, yes sir.
Chief Justice Warren E. Burger: If the Trial Judge used a clearly erroneous standard, then the case is not simply controlled by facts, is it?
Mr. William R. Glendon: Your Honor I’m sorry --
Chief Justice Warren E. Burger: If a trial judge in these circumstances used a standard to judge the facts and the standard was clearly erroneous then this is not just a fact case, is it?
Mr. William R. Glendon: We’ll, I think that clearly as I -- clearly erroneous rule would apply to the facts, what facts he found in that points, Your Honor.
Chief Justice Warren E. Burger: But if he used the wrong standard then it ceases to be just a fact case?
Mr. William R. Glendon: Well I fell that he used the right standard.
Your Honors will determine that here and I think that as far as the law is concerned that that is substantially the standard whether you can perhaps use alternative words, but the thing is I think is immediacy and currency, current injury to the United States as this Court has -- and so substantial that it justifies what’s been done here.
I mean, it isn’t just that the United States has been injured.
Judge Gesell made a point which I think is a very good one that I think perhaps the Government may forget that the interest of the United States is the people's interest.
And you are weighing here and this is why I suppose we are here, you are weighing here an abridgement of the First Amendment to people’s right to know and that may be an obstruction of -- but it’s a one that’s kept this Country and made it great for some 200 years and you’re being asked to approve something that the Government has never done before.
We were told by the Attorney General to stop publishing this news.
We didn’t obey that order and we are brought into Court and we are ended up being enjoined.
And I try -- I do think that when you come to that balance in face of the proof, in face of the proof that exists here that decision is quiet clear that the First Amendment must survive because they haven’t made out a case.
Justice John M. Harlan: Unless the Judge Gurfein stated, they haven't used the same (Inaudible)
Mr. William R. Glendon: I think essentially that that Justice Harlan.
I’m not --
Justice Potter Stewart: They did simply the matter of review, did they?
They considered the matter of -- of original findings.
Mr. William R. Glendon: Yes that’s --
Justice Potter Stewart: They were reviewing any classification?
Mr. William R. Glendon: They weren’t reviewing; they were making an original determination.
There wasn’t -- Your Honor the circumstances and the proof before them, it was not the kind of injury, the irreparable injury --
Justice Potter Stewart: There is de novo hearing on whether or not the publication would show.
Mr. William R. Glendon: It was a de novo hearing.
Justice Potter Stewart: It wasn’t reviewing any classification by the executive department, was it?
They didn’t consider that that’s what they were doing.
Mr. William R. Glendon: No, it featured in the evidence Your Honor as to how the classification got put on because that of course is the bedrock in their case.
Justice Potter Stewart: It’s basically irrelevant, isn’t it?
Mr. William R. Glendon: No, because the Government says and you must listen, they say, it’s top secret and that’s it.
Justice Potter Stewart: I haven’t heard the Solicitor General say that here today at all?
Mr. William R. Glendon: Well that’s my understanding of the whole --
Justice Potter Stewart: I asked him a question, he said there were those in the Government who like to make that argument, but he was not pressing it.
Mr. William R. Glendon: Well it’s the argument we’ve heard along that -- and you see that having classified a top secret, they move from there to show no proof.
Justice Potter Stewart: No, it hasn’t, the Government has not in this Court made the argument that simply because it’s top secret, they are entitled to an injunction, they made that argument?
Mr. William R. Glendon: I was trying to say that having classified the documents top secret.
That’s the premise to their case.
They have not yet come in to this Court and proven they are top secret and yet they say we can’t publish them because they are top secret, isn’t it?
May I say as I understand the argument of the court below in the New York Times seems to me that they have pursued, they have argued it on the premise that First Amendment, freedom of speech can be abridged by Congress, if it desires to do so?
Mr. William R. Glendon: I did not make that argument, Your Honor.
I understood you didn't, but I did not understand you making the other argument or your colleague?
Mr. William R. Glendon: No I do not --
You talk about standards; I’m not talking about standards.
First Amendments, Congress may no law abridging freedom of the press.
I understand you to say that Congress can make a law.
Mr. William R. Glendon: No Your Honor I do not say that.
You do not say it?
Mr. William R. Glendon: Never.
I do not say it.
I say we -- we stand Your Honor if I --
I had misunderstood both on you?
Mr. William R. Glendon: No sir, we stand squarely and exclusively on the First Amendment.
Rebuttal of Griswold
Chief Justice Warren E. Burger: Thank you Mr. Glendon.
Mr. Solicitor General, you have about 12 minutes thereabout left.
Mr. Griswold: Mr. Chief Justice and may it please the Court.
I should like to make it plain that we are not at all concerned with past events in this case.
We are not interested in protecting anybody, that should be obvious enough simply from the date of the materials which are involved.
We are concerned with the present and future impact of the publication of some of this material and when I say future, I don’t mean in the 21st Century, but I also don't mean to limit it to tomorrow because in this area, events of great consequence to the United States happen over periods of six months, a year, perhaps two or three years.
What we are concerned with is the impact on the present and the reasonably near future of the publication of these events, of these materials.
Now it is perfectly true that prior restraint cases with respect to the press are rare or conceivably nonexistent.
I’m not ready to concede that they are nonexistent, but I can’t point to one now.
I hadn’t had time to make a really thorough research.
I did point out that there are prior restraint cases as recently as last term with respect to freedom of speech which is the First Amendment in exactly the same terms as the freedom of the press.
And there is the Associated Press case which comes about as close to being a prior restraint on the press case as you can get without perhaps being technically a prior restraint case.
The reason of course that there are not prior restraint cases with respect to the press is that ordinarily you don’t find out about it until it’s been published.
Reference has been made to the fact oh!
There are leaks all the time, there are great many leaks, but I would point out that there is also a very widespread respect of the security classification system and its potentiality on the security of the United States.
Senator Fulbright did not publish this material.
He sent it to the Secretary of Defense or requested from the Secretary of Defense of what use he could make of it and I have seen on the television other members of Congress who said that they had some of the material, but felt not appropriate to use it because it was classified top secret.
Justice Thurgood Marshall: Mr. Solicitor General, what particularly words made at this point, as I assume that there are not studies now are being made, in the future there will be study made about Combodio, Louse (ph) you name it and if you prevail in this case, then in any incidents that anybody comes about any of those studies, a temporary restraining order will automatically issued, am I correct?
Mr. Griswold: It’s hard for me to answer the question in such broad terms.
I think that if properly classified materials are improperly acquired and that it can be shown that they do have a -- an immediate or current impact on the security of the United States that there ought to be an -- there ought to be an injunction.
Now I think it is relevant at this point --
Justice Thurgood Marshall: Well wouldn't we then be, the federal courts be the censorship board as to rather this judge --
Mr. Griswold: That's a pejorative way to put it Mr. Justice.
I don’t know what the alternative is.
Justice Thurgood Marshall: That’s what I thought --
Mr. Griswold: The --
Justice Thurgood Marshall: -- a First Amendment violation.[Laughter]
Mr. Griswold: Yes, Mr. Justice and we are of course fully supporting the First Amendment.
The -- we do not claim or suggest any exception of the First Amendment and we do not agree with Mr. Glendon when he says that we set aside the First Amendment or that Judge Gesell or the two Courts of Appeals in this case have set aside the First Amendment by issuing the injunction which they have.
The problem in this case is the construction of the First Amendment.
Now Mr. Justice Black, your construction of that is well known and I certainly respect it.
You say that no law means no law and that should be obvious.
And 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.
As Chief Justice Marshall said so long ago, it is a Constitution we are interpreting and all we ask for here is the construction of the Constitution in the light of the fact that it is a part of the Constitution and that there are other parts of the Constitution which grants powers and responsibilities to the executive.
And that the First Amendment was not intended to make it impossible for the executive to function or to protect the security of the United States.
Now, it’s been suggested that the Government move very slowly in this matter, that the Time started publishing on Sunday.
Well actually it was on Monday which is pretty fast as the Government operates in terms of the consultations that had to be made.
The policy decisions it had to be made.
On Monday, the Attorney General sent a telegram to the New York Times, asked them to stop and to return the documents.
The New York Times refused and on Tuesday, the United States started this suit.
It’s suggested that there had been full hearing, everything has been carefully and thoroughly considered, but there is clear evidence of haste in both records and this is apparent from the Times which have been stated and I would like to point out that even now at this point, the hearing is on the question whether a preliminary injunction should be granted.
The only hearings that have been held in any Courts are as to whether a preliminary injunction should be granted.
They were no intended to be full plenary trials, but merely sufficient to show the probability of possible success.
There is simply was not time to prepare a comprehensive listing or a comprehensive array of expert witnesses.
The Government relied on the fact that the District Judge would examine the study and he on the record, concededly refused to do so.
This was at the heart of the decision of the Court of Appeals for the Second Circuit in its decision to remand for a full week of hearings on the merits.
Justice Potter Stewart: I’m not sure I understand what you said.
The Court of Appeals relied on the assumption that the District Judge would examine the evidence and that the District Judge refused to do so --
Mr. Griswold: No.
That there had not been a full hearing with respect to this --
Justice Potter Stewart: Now, which case we’re talking about now?
Mr. Griswold: I’m talking about the New York Times, this case is in the Second Circuit, and the Second Circuit sent it back to the Judge for rehearing with --
Justice Potter Stewart: As I understood it, there was no claim that Judge Gurfein didn’t consider everything that was then before him that the new matter was brought to the attention of the Court of Appeals for the Second Circuit.
Mr. Griswold: No, the contrary Mr. Justice, the full 47 volumes were offered Judge Gurfein --
Justice Potter Stewart: Oh!
I know that --
Mr. Griswold: -- and he refused to examine.
Justice Potter Stewart: Well he said he did not, he didn’t refuse to, he failed to.
Mr. Griswold: No, Mr. Justice, he wouldn’t examine them.
Justice Potter Stewart: He said he didn’t have time to, but he did ask the Government to -- please bring forward the worst and that’s --
Mr. Griswold: No, I think that really came at a later stage in that case.
Justice Potter Stewart: And that new matter was brought to the attention of the Second Circuit Court of Appeals.
Mr. Griswold: Was brought to the attention of the Second Circuit Court of Appeals and they sent it back not for an instant hearing, but for one limited, properly so.
Everything about this case has been fronted.
That seems to me to be the most unfortunate and I would like to point out that the New York --
Justice Potter Stewart: Probably the reason is, of course as you know Mr. Solicitor General that unless the constitutional laws that now exists is changed, a prior restraint or publication by a newspaper is presumably unconstitutional?
Mr. Griswold: It is a very serious matter.
There is no doubt about it and so is the security of the United States a very serious matter and we have two important constitutional objectives here which have to be weighed and balanced and made as harmonious as they can be.
But, it is well know that at the Times had this material for three months.
It’s only after the Times has had an opportunity to digest it and it took them three months to digest it, that it became necessary to be frantic about it.
It wasn’t so terribly important to get it out and get it to the public while the Times were working over it, but after that, now the Times finds it extremely difficult to except an opportunity for the Courts to have an adequate chance first to resolve the extremely difficult question of the proper construction of the First Amendment in this situation and I can see that’s an extremely difficult question.
And if it -- if the proper construction is the one which Mr. Justice Black has taken for a long time and is well known, of course, there’s nothing more to be said, but our contention is that that is not the proper construction.
Justice Potter Stewart: Well then -- and your brother counsel on the other side don’t disagree with you Mr. Solicitor General.
They don’t take Mr. Justice Black’s position, at least for purposes of argument in this case?
Mr. Griswold: Very reluctantly, they were pushed into conceding that there might be some cases where there could be those suggested in the opinion --
Justice Potter Stewart: Mr. Glendon said that he thought judge Gazelle's standard was the correct one.
Mr. Bickel said that he was not in no claim that the -- that there’s an absolute prohibition of the prior restraint?
Mr. Griswold: Well, frankly I don’t think it’s much of a limitation to say that it can be enjoined if it will result in a break of diplomatic relations or a war tomorrow and as I have already said, we think the standard used by Judge Gesell is wrong.
Unknown Speaker: Do you think they are differ from the standards (Inaudible)
Mr. Griswold: Well I think -- I’m sorry Mr. Justice.
Unknown Speaker: I say, do you think that the standards of Judge Gesell used were different from those which Judge Gurfein used?
Mr. Griswold: I’m not sure what standard Judge Gurfein used.
Judge Gesell, because much of this material Judge Gurfein did not have specifically called to his attention.
The standard which Judge Gesell used is to say that unless it comes within that illustrative language and the definition of top secret that it does not meet the requirement and I contend that that is wrong.
I believe and have sought to show in the closed brief which is filed here that there are materials and there are items in this material which will affect the problem of the termination of the war in Vietnam which will affect negotiations such as the SALT talks which affects the security of United States vitality over a long period and which will affect the problem of return of prisoners of war.
And I suggest that, however, it is formulating, the standard ought to be one which will make it possible to prevent the publication of materials which will have those consequences.
Unknown Speaker: It’s still not clear as to the basis for your view that the case should be -- the District of Columbia case should be remanded.
I got it originally from your papers that you thought that should be remanded in order to have the fuller hearing that the Court of Appeals ordered them lacking before (Inaudible) and this morning you --