Page images
[blocks in formation]

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

[blocks in formation]

closely does it follow from the dissemination of the infor

mation itself?

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

[blocks in formation]

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.

When the

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?

We think

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

[blocks in formation]

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

common defense.

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

[blocks in formation]

the Government can and does from time to time acquire


« PreviousContinue »