For additional background material on the facts of the case, here is a documentary entitled “The Pentagon Papers”, used here non-commercially for academic purposes. This is followed by excerpts of the case below (after the video, please scroll down)
CASE:Per Curiam Opinionxxxthe United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”xxx
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, Near v. Minnesota, xxx. The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” xxx The District Court xxx in the New York Times case, and the District Court xxx and Court of Appeals xxx in the Washington Post case, held that the Government had not met that burden. We agree.xxxThe judgment of the Court of Appeals (in Washington Post) is affirmed xxx Court of Appeals (in New York Times) is reversed xxx So ordered.
J. Black with whom J. Douglas joins, concurring.”xxx(E)very moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment xxx
“When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
xxx Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.xxx
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. 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.xxx
The Solicitor General has carefully and emphatically stated: “Now, Mr. Justice (Black), your construction of . . . (the First Amendment) is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true. . .(T)here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.xxx
And the Government argues in its brief that, in spite of the First Amendment,”[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.”xxx
In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.xxx To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. xxx
J. Douglas, with whom J. Black joins, concurring:xxx Congress has been faithful to the command of the First Amendment in this area. xxxSo any power that the Government possesses must come from its “inherent power.”xxx The power to wage war is “the power to wage war successfully.” See Hirabayashi v. United Statesxxx. But the war power stems from a declaration of war. The Constitution xxx gives Congress, not the President, power “(t)o declare War.” Nowhere are presidential wars authorized.
The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which, in this case, is alleged to be national security.
Near v. Minnesota, xxx, repudiated that expansive doctrine in no uncertain terms.xxx
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate. New York Times Co. v. Sullivan
The schedule of the elections and the expiration of the terms of the President and the Vice President are mandated by the elections, as follows:
“1987 Constitution, Article VII, Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. “No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. “Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. “The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. “The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. “The Congress shall promulgate its rules for the canvassing of the certificates. “The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.”
In other words, the incumbent President and Vice President have no authority to sit in office beyond noontime of June 30, 2016, and absolutely have no authority to sit in any hold-over capacity of any kind.
As to “postponement” of the presidential elections, the Commission on Elections has no authority whatsoever to postpone the date of the presidential elections – only Congress is authorized do that, but not later than the date that allows for counting and canvassing up to noon of June 30, 2016.
The Comelec chair wrote the Supreme Court on Sunday that the TRO on the “no bio no boto” policy (no biometrics registration, no right to vote) imperils the holding of the elections as scheduled. Presumably, the Comelec chair could not wait for the Sol-Gen to file the necessary responsive pleading in the Supreme Court and took it upon himself to write the Supreme Court.
Can a litigant write the justices or judge presiding over the case about the merits of a pending case or proceeding? Sure, any person has the right to petition for redress of grievances. A judicial proceeding however is governed by the Rules of Court in order to ensure that the rights of all parties are observed, such that the arguments are course thru counsel in the manner provided by the rules with copies furnished on the opposing party.
The letter of the Comelec chair is a form of extrajudicial communication sent directly to the Court. Writing the Supreme Court justices on a matter pending before them is a way of extrajudicially influencing them, to the detriment of the opposing party who has no access to the extrajudicial communication. That is why the other side is put at a disadvantage when one party is allowed to extrajudicially communicate with the Court without notice upon the other party and without copies of the communication furnished to the other party. Normally, the judge, or the justice, or the clerk of court, who received the letter would direct the litigant to course his/her plaints to his/her counsel, in this case, the Solicitor General. But we all know by this time that some of the Supreme Court justices may have read the letter or may have been made aware of its contents, the Comelec chair having granted interviews on it.
At the very least, petitioners-opposing party, the Kabataan partylist, should be allowed access to such letter. But the damage has been done. The Comelec chair has foisted a threat — The threat that they would not be able to conduct orderly elections because of the TRO issued by the Supreme Court. This is a threat. The Comelec chair said in an interview that: “The problem is that we are now in limbo on what to do with the 2.4 million no bio voters. The project of precincts (the precinct assignment of voters) is scheduled on Dec. 15.”
In reality however, the TRO on the deactivation simply means that the Comelec has to proceed with election preparations without deactivating the 2.4 million voters that it wants to methodically disenfranchise. Comelec is not being put “in limbo”, they are simply directed not to disenfranchise 2.4 million voters pending review of the matter but that they should proceed with election preparations upon the status quo or without disenfranchising the 2.4 million voters. News reports show that a few days before the deadline and on the day of the deadline for biometrics registration , Comelec refused to service more than 50 per cent of the voters who had lined up. Comelec argued that the applicants should have lined up earlier and that the number of Comelec personnel and computers was not enough to service them. Note however that these voters and applicants complied with the law and the rules when they lined up a few days before, or on the day of the deadline. Refusing to register them, causing deactivation of their records, when they were in line within the deadline , is illegal – it is a methodical form of disenfranchisement. The Comelec should have devised a procedure whereby all those who had queued, up to the day of the deadline, be allowed to register – these voters complied with the deadline, they had the right to be registered.
There is a precinct assignment scheduled on Dec. 15; the voters list and list of candidates have to be finalized. The TRO means these preparations should push thru without, in the meantime, disenfranchising the 2.4 million voters, pending review of the merits. (The Comelec can take cue from experienced managers, administrators, directors, even editors, who, when faced with two contingencies, prepare for both, or make preparations for both).
But alas, the Comelec chair has already foisted a threat, and a threat by way of an extrajudicial communication directed at the Supreme Court justices at that. Mabait ang Supreme Court.
