Supreme Court, 6-3, Upholds Newspapers on Publication of Pentagon Report (Published 1971)

WASHINGTON, June 30— The Supreme Court freed The New York Times and The Wash ington Post today to resume immediate publication of arti cles based on the secret Penta gon papers on the origins of the Vietnam war.

Decision, concurring opinions, dissents start on Page 17.

By a vote of 6 to 3 the Court held that any attempt by the Government to block news articles prior to publication bears “a heavy burden of pre sumption against its constitu tionality.”

In a historic test of that prin ciple — the first effort by the Government to enjoin publica tion on the ground of national security — the Court declared that “the Government has not met that burden.”

The brief judgment was read to a hushed courtroom by Chief Justice Warren E. Burger at 2:30 2.M. at a special session called three hours before.

Old Tradition Observed

The Chief Justice was one of the dissenters, along with Associate Justices Harry A. Blackmun and John M. Harlan, but because the decision was rendered in an unsigned opin ion, the Chief Justice read it in court in accordance with long‐standing custom.

In New York Arthur Ochs Sulzberger, president and pub lisher of The Times, said at a news conference that he had “never really doubted that this day would come and that we’d win.” His reaction, he said, was “complete joy and delight.”

The case had been expected to produce a landmark ruling on the circumstances under which prior restraint could be imposed upon the press, but be cause no opinion by a single Justice commanded the support of a majority, only the unsigned decision will serve as prece dent.

Uncertainty Over Outcome

Because it came on the 15th day after The Times had been restrained from publishing fur ther articles in its series mined from the 7,000 pages of ma terial—the first such restraint in the name of “national securi ty” in the history of the Unit ed States—there was some un certainty whether the press had scored a strong victory or whether a precedent for some degree of restraint had been set.

Alexander M. Bickel, the Yale law professor who had argued for The Times in the case, said in a telephone interview that the ruling placed the press in a “stronger position.” He main tained that no Federal District Judge would henceforth tempo rarily restrain a newspaper on the Justice Department’s com plaint that this is what they have printed and we don’t like it” and that a direct threat of irreparable harm would have to be alleged.

However, the United States Solicitor General, Erwin N. Griswold, turned to another lawyer shortly after the Jus tices filed from the courtroom and remarked: “Maybe the newspapers will show a little restraint in the future.” All nine Justices wrote opin ions, in a judicial outpouring that was described by Supreme Court scholars as without prec edent. They divided roughly into groups of three each.

The first group, composed of Hugo L. Black, William 0. Douglas and Thurgood Mar shall, took what is known as the absolutist view that the courts lack the power to sup press any press publication, no matter how grave a threat to security it might pose.

Justices Black and Douglas restated their long‐held belief that the First Amendment’s guarantee of a free press for bids any judicial restraint. Jus tice Marshall insisted that be cause Congress had twice con sidered and rejected such pow er for the courts, the Supreme Court would be “enacting” law if it imposed restraint.

The second group, which in cluded William J. Brennan Jr., Potter Stewart and Byron R. White, said that the press could not be muzzled except to pre vent direct, immediate and ir reparable damage to the nation. They agreed that this material did not pose such a threat.

The Dissenters’ Views

The third bloc, composed of the three dissenters, declared that the courts should not re fuse to enforce the executive branch’s conclusion that ma terial should be kept confiden tial — so long as a Cabinet level officer had decided that it should—on a matter affect ing foreign relations.

They felt that the “frenzied train of events” in the cases be fore them had not given the courts enough time to deter mine those questions, so they concluded that the restaints upon publication should have been retained while both cases were sent back to the trial judges for more hearings.

The New York Times’s series drawn from the secret Penta gon study was accompanied by supporting documents. Articles were published on June 13, 14 and 15 before they were halted by court order. A similar re straining order was imposed on June 19 against The Washing ton Post after it began to print articles based on the study.

Justice Black’s opinion stated that just such publications as those were intended to be pro tected by the First Amend ment’s declaration that “Con gress shall make no law… abridging the freedom of the press.”

Paramount among the re sponsibilities of a free press, he said, “is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

“In my view, far from de serving condemnation for their couragedus reporting, The New York Times, The Washington Post and other newspapers should be commended for serv ing the purpose that the Found ing Fathers saw so clearly,” he said. “In revealing the work ings of government that led to the Vietnam war, the news papers nobly did precisely that which the founders hoped and trusted they would do.”

Justice Douglas joined the opinion by Justice Black and was joined by him in another opinion. The First Amendment’s purpose, Justice Douglas ar gued, is to prohibit “govern mental suppression of embar rassing information.” He as serted that the temporary restraints in these cases “con stitute a flouting of the prin ciples of the First Amendment.”

Justice Marshalls position was based primarily upon the separation‐of‐powers argument that Congress had never au thorized prior restraints and that it refused to do so when bills were introduced in 1917 and 1957.

He concluded that the courts were without power to restrain publications. Justices Brennan, Stewart and White, who also based their conclusions on the separation‐of‐powers principle, assumed that under extreme circumstances the courts would act without such powers.

Justice Brennan focused on the temporary restraints, which had been issued to freeze the situation so that the material would not be made public be fore the courts could decide if it should be enjoined. He con tinued that no restraints should have been imposed because the Government alleged only in general terms that security breaches might occur.

Justices Stewart and White, who also joined each other’s opinions, said, that though they had read the documents they felt that publication would not be in the national interest.

But Justice Stewart, a for mer chairman of The Yale Daily News, insisted that “it is the duty of the executive” to protect state secrets through its own security measures and not the duty of the courts to do it by banning news articles.

He implied that if publica tion of the material would cause “direct, immediate, and irreparable damage to our na tion or its people,” he would uphold prior restraint, but be cause that situation was not present here, he said that the papers must be free to publish.

Justice White added that Con gress had enacted criminal laws, including the espionage laws, that might apply to these papers. “The newspapers are presumably now on full notice,” he said, that the Justice De partment may bring prosecu tions if the publications violate those laws. He added that he “would have no difficulty in sustaining convictions” under the laws, even if the breaches of security were not sufficient to, justify prior restraint.

The Chief Justice and Jus tices Stewart and Blackmun echoed this caveat in their opinions — meaning that one less than a majority had lent their weight to the warning.

Chief Justice Burger blamed The Times “in large part” for the “frenetic haste” with which the case was handled. He said that The Times had, studied the Pentagon archives for three or four months before beginning its series, yet it had breached “the duty of an hon orable press” by not asking the Government if any security vio lations were involved before it began publication.

He said he found it “hardly believable” that The Times would do this, and he con cluded that it would not be harmed if the case were sent back for more testimony.

Justice Blackmun, also focus ing his criticism on The Times, said there had been inadequate time to determine if the publi cations could result in “the death of soldiers, the destruc tion of alliances, the greatly increased difficulty of negotia tion with our enemies, the in ability of our diplomats to ne gotiate,” He concluded, that if the war was prolonged and a delay in the return of United States prisoners result from publication, “then the nation’s people will know where the responsibility for these sad consequences rests.”

In his own dissenting opin ion, Justice Harlan said “The judiciary must review the ini tial executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the Presi dent’s foreign policy relations power.

“The judiciary,” he went on, “may properly insist that the determination that disclosure of that subject matter would irreparably impair the national security be made by the head of the executive department concerned—here the Secretary of State or the Secretary of Defense—after actual personal consideration.

“But in my judgment, the judiciary may not properly go beyond these two inquiries and redetermine for itself the prob able impact of disclosure on the national security.”

The Justice Department in tially sought an injunction against The Times on June 15 from Federal District Judge Murray I. Gurfein in New York.

Judge Gurfein, who had is sued the original temporary re straining order that was stayed until today, ruled that the material was basically histori cal matter that might be em barrassing to the Government but did not pose a threat to national security. Federal Dis trict Judge Gerhard A. Gesell of the District of Columbia came to the same conclusion in the Government’s suit against The Washington Post.

The United States Court of Appeals for the. Second Circuit, voting 5 to 3, ordered more secret hearings before Judge Gurfein and The Times ap pealed. The United States Court of Appeals for the District of Columbia upheld Judge Gesell, 7 to 2, holding that no injunc tion should be imposed. Today the Supreme Court affirmed the Appeals Court here and reversed the Second Circuit.

The Supreme Court also is sued a brief order disposing of a few other cases and ad journed until Oct. 4, as it had been scheduled to do Monday.