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1873) Argued: June 26, 1971 Decided: June 30, 1971 [*] No. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . There are eight sections in the chapter on espionage and censorship, §§ 792-799. Moreover, the Act of September 23, 1950, in amending 18 U. On public questions, there should be "uninhibited, robust, and wide-open" debate. But the criminal sanction is not urged by the United States as the basis of equity power. There are numerous sets of this material in existence, and they apparently are not under any controlled custody.
The Bill of Rights, including the First Amendment, followed in 1791. the same to any person not entitled to receive it . The Government suggests that the word "communicates" is broad enough to encompass publication. Judge Gurfein's holding in the case that this Act does not apply to this case was therefore preeminently sound. § 793 states in § 1(b) that: Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect. So any power that the Government possesses must come from its "inherent power." The power to wage war is "the power to wage war successfully." 320 U. Open debate and discussion of public issues are vital to our national health. These documents contain data concerning the communications system of the United States, the publication of which is made a crime.
The stays entered June 25, 1971, by the Court are vacated. In my view, it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. I, § 8, gives Congress, not the President, power "[t]o declare War." Nowhere are presidential wars authorized. 697, 719-720: While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. 697, repudiated that expansive doctrine in no uncertain terms. That debate antedated the disclosure of the contents of the present documents.
And, within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence.
Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. Madison and the other Framers of the First Amendment, able men [p717] that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . And the Government argues in its brief that, in spite of the First Amendment, [t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in the future.
In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. [the First Amendment] is well known, and I certainly respect it. In other words, we are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future.
When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. The press was to serve the governed, not the governors. While I join the opinion of the Court, I believe it necessary to express my views more fully. abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental restraint on the press. The other evidence that § 793 does not apply to the press is a rejected version of § 793. The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in 379 U. We start, then, with a case where there already is rather wide distribution of the material that is destined for publicity, not secrecy.
In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. § 793(e) provides that [w]hoever having unauthorized possession of, access to, or control over any document, writing . In three of those eight, "publish" is specifically mentioned: § 794(b) applies to Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, (Emphasis added.) Thus, it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act. During the debates in the Senate, the First Amendment was specifically cited, and that provision was defeated. case, and direct that it affirm the District Court. Moreover, the President has sent a set to the Congress.
In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. The press was protected so that it could bare the secrets of government and inform the people. the views of the Solicitor General with those of James Madison, the author of the First Amendment. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession.