But beneath the surface, Black was deeply worried. As he saw it, only Brennan would stand with Douglas and him on the ground that the First Amendment prohibited the stopping of publication. Marshall and White were not prepared to say newspapers had an absolute right to publish. They thought the government should prosecute the newspapers afterward, rather than stop publication before the fact. Stewart wanted to find a factual basis on which to decide the case. If the sealed record demonstrated the clear and direct causal link to a danger to the national security, his vote was probably lost. Burger, Harlan and Blackmun seemed determined to send the case back to the lower courts for further hearings. Whichever side got two of the three undecided votes—Stewart, White and Marshall— would have the decision.
Black was particularly concerned about Stewart. "I just don't know about Potter*" he said. "I just don't know how he'll come out."
It was clear from the start, when Stewart and White had voted to grant cert, that neither would take an absolutist First Amendment position. For both, it would come down to the sealed record. Had the government proved that the material was truly dangerous? "We're all in real trouble," Black told his clerks.
The papers that Griswold had filed with the Court remained under guard in the conference room.
Douglas had none of Black's reluctance about reading the sealed record. Unwilling to abide by the Chief's restrictions that all the material be kept in the conference room, protected by Pentagon security guards stationed outside, Douglas took the materials to his chamber and raised no objection when his clerks read the exhibits.
Douglas was totally unimpressed with what he found. His many trips to Vietnam, his own writing on the area
(North from Malaya),
and his close friendships with Vietnamese officials (including the late Ngo Dinh Diem, with whom he stayed on his visits) had made him intimately familiar with Southeast Asia. With characteristic vanity, he told his colleagues that there was nothing in the materials he had not known or assumed.
Harlan, unable with his poor eyesight to read the documents, also picked up a set of the papers in the conference room, stuffed them into a manila envelope, and headed back to his chambers. Entering as usual through his clerks' office, he handed one clerk the materials and told him he wanted him to begin reading the papers aloud to him in his office in a few minutes.
Harlan was barely out of the room when Blackmun burst through the door. He apologized profusely. He had been trying to catch Harlan, he told the clerk. Obviously embarrassed, Blackmun explained that the Chief had sent him to retrieve Harlan's copy of the record. No one was to remove the papers from the conference room, he explained. Taking the exhibits from the clerk, Blackmun left.
When he heard what had happened, Harlan was upset. But reluctant to criticize his colleagues before his clerks, he returned to the conference room, where Blackmun read the material to him.
Stewart looked through the sealed exhibits in the conference room with an almost boyish curiosity about the secrets contained in the documents. Both the enormous publicity and the complicated legal question made this the best case to come along in years. It was the kind of issue that Stewart thought central to the Court's role. It would be hard to decide. "I've seen things that shake me," Stewart told his clerks later, pacing excitedly about his chambers. It wasn't "frivolous." "There is no question that there is some stuff in there that could get people killed, and I hope it never gets out." But he remained unsure whether its publication would immediately and gravely affect national security.
There was an air of uncertainty late that afternoon, as the nine Justices convened in the conference room.
The Chief was determined to send the case back for additional hearings; the government should have another chance to prove the national security was in jeopardy. Black and Douglas said the newspapers should be permitted to publish immediately. Harlan again argued that the Court had moved too precipitiously, but if he were forced to reach a decision on the merits of the case now, he would vote for the government. Brennan's disgust with the war and the government had come to a head; he voted for the newspapers. Publication could be enjoined only in one circumstance—that the nation be in a declared war.
The crux of the issue, as Stewart saw it, was a matter of facts. The lawyers for the newspapers had acknowledged that they were not arguing against prior restraint in all cases. The question was whether, in this case, today, the government had proved its point. Would some grave, irreparable harm come to the country if the newspapers continued publishing the papers? He agreed that publication was probably not in the national interest, but would it cause immediate and irreparable harm? Stewart was not sure. The burden of proof was clearly with the government. It was close, but the government had not met the burden, Stewart concluded. He would vote to let the newspapers publish. That gave Black his fifth vote.
White and Marshall took nearly identical views: the government had taken the wrong course in seeking injunctions against the newspapers. It could prosecute them after publication if it could prove that they had violated laws against disclosing classified secrets. Both Justices would vote to lift the injunctions. Though they could imagine situations in which prior restraint was permissible, it was not called for here.
Blackmun joined the Chief and Harlan. That made it
6
to
3.
The logic now demanded that the decision be released as soon as possible. No one would be assigned to write for the majority. The Justices would issue a brief
per curiam
with the result, and each man would write his separate opinion. There was really no time for anything else.
Douglas, as usual, was first off the mark. By the end of Saturday, he had finished a draft. By Sunday, he had polished it. On Monday, he was back in Goose Prairie.
Brennan was also anxious to get away. The ferry tickets to his annual summer vacation spot, the island of Nantucket off the Massachusetts coast, had been purchased weeks in advance. He had planned to leave on Monday.
For Black, this decision represented the most important First Amendment opinion of his career—a final accomplishment in his efforts to gain acceptance for First Amendment values. First among the priorities of a free press was exposing the secrets of government, especially those calculated to fool a nation into shipping its sons off to be "murdered" on foreign shores, he stated. Even as he wrote, he realized how deeply and seriously the government had misled its people about the war. "They've deceived us all this time," he said to one of his clerks. He felt personally betrayed. He had known how foolish this war had been, but now he regretted that the Court had not taken some stand earlier to protect the public from the deceptions. He resolved to incorporate into his opinion a stronger condemnation of the war itself. He cast about for the precise language he wanted. The words just would not come.
But after sleeping on it, Black arrived in chambers and summoned his clerks. He had found the words in an old Southern drinking song, "I'm a Good Old Rebel." Enthusiastically he sang it for them.
I'm a good old rebel,
Now that's just what I am,
For this "Fair Land of Freedom"
I do not care a damn;
I hates the Yankee nation
And everything they do,
I hates the Declaration
of Independence, too.
Three hundred thousand Yankees i
s stiff in Southern dust; We got three hundred thousand, Before they conquered us;
They died of Souther
n fever, And Southern steel and
shot, I wish they was three million, Instead of what we got.
He rewrote h
is draft:
. . . 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. In my view, 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. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
Black spent nearly every minute of his time polishing his lesson on the history and meaning of the First Amendment. He was oblivious to the other chambers. He wanted his opinion to be perfect.
There was little for Harlan to do other than outline his reasoning why the Court's action was "almost irresponsibly feverish." He was still upset with Stewart for rushing them. Although he voted with the government, he would, in future cases, require that each national-security claim be made personally by a cabinet secretary.
As the Justices worked on their opinions, Harlan was flabbergasted to learn that the Chief had received a telephone call from James "Scotty" Reston, a vice-president and senior columnist for
The New York Times.
Burger told Harlan that Reston had asked for
a
meeting.
"About what?" Burger had asked.
"The Pentagon Papers case," Reston had told him.
Shocked at the impropriety of Reston's overture, Burger had terminated the conversation.
Harlan was not sure th
at the Chief was construing Res
ton's call fairly. The Chief presented the incident as if
Reston were clearly trying to influence the outcome of the case. Given the Chief
’
s o
verreaction, Harlan thought Res
ton was lucky not to have been held in contempt. And he was hardly surprised at the apparent display of arrogance.
Harlan recalled when he had first been introduced to Reston at a cocktail party in Connecticut. When he had been told that Harlan never voted in elections, lest it give him a partisan interest in issues that came before the Court, Reston appeared visibly shocked. "He doesn't vote?" Reston had asked Harlan's wife. "That's strange. All of us at
The New York Times
vote."*
Harlan still marveled at the pomposity of a man who could confuse the role of a newspaper with the role of the Court.
The Chief agreed with Harlan that the cases had been considered too quickly. Maybe it was easy for Douglas and Black. They didn't need briefs or orals, and they didn't care what was in the sealed brief. But for him, it was not such a simple matter. "We do not know the facts . . ." he wrote in dissent. "No District Judge knew all the facts. No Court of Appeals Judge knew all the facts. No member of this Court knows all the facts."
Burger was also bothered by the newspapers' willingness to receive stolen property.
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. This duty was to report [to] responsible public officers. This duty rests on taxi drivers, Justices, and the
New York Times.
Struck by the similarity between the administration's appeal for the Court to protect the nation's secrets and the Court's own need for secrecy, Burger added a last-minute footnote:
* Reston said in an interview that he recalls neither the call
to
Burger nor the discussion with Mrs. Harlan.
There may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.
At
2:30
p.m
., Wednesday, June
30,
four days after the argument and conference, Burger announced the
6
-to
-3
decision in favor of the newspapers. He chose to read the short
per curiam
himself, despite the fact that he was among the three dissenters.
The other chambers were deeply unhappy with the Chiefs usurpation of the majority's right to present its own opinion. Black, not Burger, should be announcing the decision. But the tone of the opinion gave the impression of unanimity among the Court, despite the split. And it expressed a strong presumption against prior restraint, which the government carried the burden of justifying. The district courts had said the government had not met that burden in this case. Concluded Burger: "We agree."
In conversations with reporters later, and in a speech to the American Bar Association the next week, the Chief referred to the Pentagon Papers case as "actually unanimous."