Three Points of View from the Court

The three streams of argument that emerged from the Supreme Court Justices' separate opinions are best illustrated by the pro-press views of Hugo Black, the tightly reasoned moderate position of Potter Stewart, and the pro-Government dissenting opinion of Chief Justice Warren Burger. Excerpts:

BLACK

Every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible and continuing violation of the First Amendment. It is unfortunate that some of my brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. Both the history and language of the amendment support the view that the press must be left free to publish news, whatever the source, with out censorship, injunctions or prior restraints.

In the First Amendment the founding fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of Government and inform the people.

Only a free and unrestrained press can effectively expose deception in Government. And paramount among the responsibilities of a free press is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. 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.

STEWART

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry. Without an informed and free press there cannot be an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. 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.

I think there can be but one answer to this dilemma. The Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility requiring judgment and wisdom of a high order. A very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion.

But in the cases before us we are asked to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate and irreparable damage to our nation or its people.

BURGER

Only those who view the First Amendment as an absolute in all circumstances --a view I respect, but reject--can find such a case as this to be simple or easy. No member of this court knows all of the facts. These cases have been conducted in unseemly haste. A great issue of this kind should be tried in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste is unwarranted in light of the long period the Times, by its own choice, deferred publication. The alleged right to know has somehow and suddenly become a right that must be vindicated instanter.

Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified. With such an approach the newspapers and Government might well have narrowed the area of disagreement, leaving the remainder to be resolved by orderly litigation.

To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret Government documents. That duty, I had thought--perhaps naively --was to report forthwith to public officers. This duty rests on taxi drivers, Justices and the New York Times.

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