United States v. Washington Post Company, 71-1478.

• Decision Date: 19 June 1971
• Docket Number: No. 71-1478.,71-1478.
• Parties: UNITED STATES of America, Appellant, v. The WASHINGTON POST COMPANY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

446 F.2d 1322 (1971)

UNITED STATES of America, Appellant, v. The WASHINGTON POST COMPANY et al.

No. 71-1478.

United States Court of Appeals, District of Columbia Circuit.

Argued June 18, 1971.

Decided June 19, 1971.

As Amended June 22, 1971 and July 2, 1971.

Mr. Kevin T. Maroney, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Daniel J. McAuliffe, Atty., Department of Justice, were on the pleadings for appellant. Messrs. John A. Terry and Joseph M. Hannon, Asst. U. S. Attys., also entered appearances for appellant.

Mr. Roger A. Clark, Washington, D. C., with whom Messrs. Anthony F. Essaye and William C. Potter, Jr., Washington, D. C., entered appearances, on behalf of appellees.

Before WRIGHT, ROBINSON and ROBB, Circuit Judges.

PER CURIAM:

Very early this morning, we entered an order in this case summarily reversing an order of the District Court denying appellant, the Government, a temporary restraining order. We now summarize the reasons for the action we deemed necessary in the unusual circumstances with which we were confronted.

Appellees, the Washington Post Company and certain of its officers, are in possession of portions of a 47-volume "top secret" document known as the "History of U.S. Decision-Making Process on Vietnam Policy." Yesterday they published information derived from that document, and admittedly intend to publish more. The Government filed in the District Court a complaint and affidavits of responsible officials claiming that publication of material from the document has prejudiced and will prejudice the conduct of the Nation's military efforts and diplomatic relations, and will result in irreparable harm to the national defense. Appellees claim that the material is historical in character, that its publication therefore cannot reasonably be expected to prejudice defense interests though it may embarrass both governments and individuals, and that the First Amendment protects their right to publish it.

About 8:00 p. m. yesterday, the District Court denied the Government's request for a temporary restraining order to prevent further publication of this material by appellees. In its memorandum opinion, the Court expressed the views that the Supreme Court's opinion in Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), supported total freedom of the press, and that criminal sanctions were the Government's only remedy for publication of classified information. The court also said that it had no precise indication of how publication of the material would injure the United States; it felt that other parties may also have copies of the document and may divulge its contents to other sources, so that judicial intervention might ultimately be futile. The court was also concerned that even after a full hearing, it might not be able to weigh the conflicting private, public and governmental interests in secrecy and freedom of the information.

We have concluded that the District Court's action was improper. In the first place, freedom of the press, as important as it is, is not boundless. The Near case relied on so heavily by the District Court involved a broad scheme for injunctions against "obscene, lewd and lascivious" or "malicious, scandalous and defamatory" publications. In the Supreme Court's opinion, that scheme was clearly a prior restraint on the press prohibited by the First Amendment. But Near recognized a narrow area, embracing prominently the national security, in which a prior restraint on publication might be appropriate. See 283 U.S. at 715-716, 51 S.Ct. 625, 75 L.Ed. 1357. We think the instant case may lie within that area.

Second, the District Court placed questionable reliance on the traditional rule that equity will not enjoin conduct amounting to crime. The principle is a corollary of the more general principle that equitable relief is inappropriate where there is an adequate remedy at law. The Supreme Court has recognized exceptions to the rule against injunctions to prevent crimes in cases where an important public interest was threatened with irreparable harm. See In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895). Section 1(b) of the Internal Security Act of 1950 indicates that the criminal sanctions which the Act provides for dissemination of classified information are not to be construed as establishing military or civilian censorship. 64 Stat. 987; see 18 U.S.C. § 793 (1964). But it is hardly clear that Congress thereby meant to foreclose all possible resort to injunctive relief to protect such information in such exceptional circumstances as would justify prior restraints under Near.

Thus we think the law permits an injunction against publication of material vitally affecting the national security. In this case, the Government makes precisely that claim — that publication by appellees will irreparably harm the national defense. The District Court nevertheless found that the Government had not advanced even a basis for a temporary restraint to determine whether there is any merit to its claim. Under the circumstances, we think that the District Court erred in that ruling.

We are aware that the Government has not set forth particular elements of prejudice to the national defense, and that the document in question covered a period which ended over three years ago. But we also recognize that the Government may not have been able to make specific allegations without knowing precisely what parts of the document are held by appellees, and that there is an interest in avoiding disclosure of classified information even in court where such disclosure is not crucial to the court's decision. See United States v. Reynolds, 345 U.S. 1, 8-10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The document is admittedly a review of the conduct of military and diplomatic affairs with respect to a war which continues into the present. And the Government did present affidavits of officials in a position to know what sort of harm might result from publication of material derived from the document. These circumstances do not provide a sufficient basis for determining, one way or the other, whether all of the document is essentially historical in character or whether any of it has a present impact on vital matters affecting national security. We do not understand how it can be determined without a hearing and without even a cursory examination of the material that it is nothing but "historical data" without present vitality.

While we are advertent to the heavy burden the Government bears to demonstrate ample justification for any restraint on publication, we are unable to escape the conclusion that the denial of a temporary restraining order may possibly threaten national security. Judicial responsibility, in our view, cannot properly be discharged without some inquiry into the matter. The Government does not ask us to accept its allegations, but only to afford it an opportunity to prove them. While appellees will be delayed by a grant of relief, and while courts should always hesitate to restrain free expression, the injury to appellees from a brief pause in publication is clearly outweighed by the grave potentiality of injury to the national security.

Under these circumstances, we felt compelled to reverse the decision of the District Court, and to restrain publication for the shortest possible period consistent with an opportunity for the Government to substantiate its claims at a hearing on its request for a preliminary injunction.

Reversed.

J. SKELLY WRIGHT, Circuit Judge (dissenting):

This is a sad day for America. Today, for the first time in the two hundred years of our history, the executive department has succeeded in stopping the presses. It has enlisted the judiciary in the suppression of our most precious freedom. As if the long and sordid war in Southeast Asia had not already done enough harm to our people, it now is used to cut out the heart of our free institutions and system of government. I decline to follow my colleagues down this road and I must forcefully state my dissent.

The executive department has sought to impose a prior restraint on publication of a series of articles by the Washington Post. The District Court refused to cooperate. Very basic constitutional principles support the District Court's decision.

In Near v. Minnesota, 283 U.S. 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1...