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information setting forth private views regarding matters of fact and opinion disseminated for the purpose of influencing political conduct. The teaching of these early cases is that in unusual circumstances the Government may restrict the dis
semination of private information by imposing an appropriately drawn statutory prohibition and enforcing the prohibition through the normal processes of the criminal law.
The case of Eugene Debs is instructive.
In 1918 Debs
rose to convey to the people of Canton, Ohio, his views re
garding their duty to accept military service for the war in
The speech was his own.
It disseminated facts and
opinions tending to support the proposition that members of
the working class should not fight wars instigated for the benefit of their economic masters. Debs was indicted on a
charge that he had obstructed the recruitment and enlistment
services of the United States.
He was tried and convicted,
and his conviction was affirmed by the Supreme Court.
In an opinion by Mr. Justice Holmes, the Court held that
in light of all the circumstances of the case the dissemi
nation of this information by Debs, reflecting nothing more
than his own views regarding the facts and moral principles
relevant to the war, had in fact created a clear and immi
nent danger that a necessary defense process
would be obstructed.
Because this was a
danger that the United States was entitled to prevent, the
First Amendment did not bar the prosecution.
See Debs v.
United States, 249 U.S. 211 (1919).
First Amendment law has undergone a good deal of re
finement since the days when these early precedents were laid
down, but the principles identified by Mr. Justice Holmes
still provide a framework for an analysis of the limitations
on the power of the United States to restrict the dissemination of private information affecting the Nation's ability to maintain a common defense against foreign military power.
To be sure, these principles are not technical rules for ad
judication; but they focus the constitutional inquiry on
the issues that must be addressed by those who hold, as the courts have consistently held, that the First Amendment is
closely does it follow from the dissemination of the infor
Does the danger, in light of all of the facts
and circumstances of the case, justify the sort of prohibition
that the Government has sought to impose?
This brings us to the second major point. The courts have held repeatedly that if the Government wants to prohibit
the dissemination of information, even information in the
field of military affairs, there is a fundamental constitutional difference between two different modes of procedure.
There is a difference between, on the one hand, enacting a
statute that prohibits dissemination and provides for en
forcement through the normal mechanisms of the criminal law
and, on the other hand, obtaining a court order that imposes
a like prohibition in a particular case or cases and holds out the prospect of enforcement through a proceeding for
have held that it does. The general rule is that an injunction against private speech cannot be justified constitutionally except in cases in which the speech presents a
danger of extraordinary magnitude.
By contrast, a criminal
prosecution under a statute prohibiting the same speech can
be justified by a lesser showing.
I should note in passing that it has become increasingly clear that there is one rather significant ex
ception to the rule against injunctive relief.
information in question is protected by a contract between
the Government and someone who has gained access to the
information through a position of trust, an injunction
against dissemination by that person may be appropriate
even where there is no proof that dissemination creates a
grave and extraordinary danger.
I have two further observations to make before pro
ceeding to your specific questions. As your letter suggests, information relating to or affecting military affairs can
have its genesis in many different sources.
It can originate
"in" the Government itself.
It can originate in a private
laboratory. It can originate, as in Debs, in the mind of an influential dissident opposed to a foreign war. Does the
source or origin of information have a bearing on the power
of the Government to restrict its dissemination?
that it does, but we should emphasize that in our view the question of sources is simply one of many considerations
that must be taken into account in determining what the
a source open to public examination (e.g., the New York
Public Library, it may well be that dissemination of the
information will open no new danger, given the source.
information is already known.
Additional dissemination will
provide our foreign rivals with nothing they do not already
have or could not soon discover.
See United States v. Heine,
151 F.2d 813 (2d Cir. 1945), cert, denied, 328 U.S. 833 (1946).
But the inquiry is largely one of fact, and we think there are
cases in which the danger created by dissemination of informa
tion that has originated or come to rest in private sources
is sufficient to trigger the Government's power to act in the
If the Manhattan Project had proceeded under
private, not public, sponsorship, the governmental interest in preventing premature disclosure of its startling and dangerous discoveries would have been just as compelling; and
the power of the Government to prevent that danger would have
been very nearly as great, in our view.
I have one final word.
In any discussion of the Gov
ernment's power to restrict the public or private dissemination of information affecting military affairs, there is an
occasional temptation to draw on the private-law concepts
that the courts have developed to deal with private trans
I do not deny
actions involving "intellectual property." that this may be a useful exercise in some
the Government can and does from time to time acquire