The decision follows a March victory for the group in which the 9th Circuit Court of Appeals upheld a jury verdict finding the song did not infringe on “Taurus.”. See my brother White's concurring opinion. 312 U. S., at 28.

Rec. There are no doubt other exceptions no one has had occasion to describe or discuss. The problem here is whether in this particular case the executive branch has authority to invoke the equity juris diction of the courts to protect what it believes to be the national interest. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bear ing upon the propriety of similar ju dicial action in the future. It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in The Times litigation to ob serve that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to pre sent its case to the District Court. There are other ex ceptions, some of which Chief Justice Hughes mentioned by way, of example in Near v. Minnesota. . For great cases are called great, not by reason of their real im portance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and dis torts the judgment. . U.S. Supreme Court Cohen v. California, 403 U.S. 15 (1971) Cohen v. California. I be lieve that every moment's continuance of the injunctions against these news papers amounts to a flagrant, indefen sible and continuing violation of the First Amendment. 403 U.S. 15. But I can not say that disclosure of any of them will surely result in direct, immediate and irreparable damage to our nation or its people. In the area of basic national defense the fre quent need for absolute secrecy is, of course, self‐evident. Texts of the Supreme Court Decision, Opinions and Dissents in Times‐Post Case. The pro posal provided that: “During any national emergency re sulting from a war to which the United States is a party, or from threat of such a war, the President may, by proc lamation, prohibit the publishing or com municating of, or the attempting to publish or communicate any informa tion relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy. I agree that, in performance of its duty to protect the values of the First Amendmen against political pres sures, the judiciary must review the initial executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's for eign relations power. In the absence of the governmental checks and balances present in other areas of our national life, the only effec tive restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry— in an informed and critical public opinion which alone can here protect the values of demo cratic government. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697, 719‐ 720: “...While reckless assaults upon pub lic men, and efforts to bring obloquy upon those who are endeavoring faith fully to discharge official duties, exert a baleful influence and deserve the se verest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the peri od in which our institutions took shape. And paramount among the responsibilities of a free press is the duty to prevent any part of the Govern ment from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. Here, moreover, the frenetic haste is due in large part to the manner in which The Times proceeded from the date it obtained the purloined docu ments. Section 783. But see 103 Cong. June 26 at 11 A.M., a course which I joined. Representatives, Chief Justice John Marshall, then a member of that body, stated: “The President is the sole organ of the nation in its external relations, and a its sole representative with foreign nations.” Annals, 6th Cong., Col. 613 (1800). Near v. Minnesota, 283 U.S. 697, repudiated that expansive doctrine in no uncertain terms. The time which has been available to us, to the lower courts and to the parties has been wholly inade quate for giving these cases the kind of consideration they deserve. A debate of large proportions goes on in the nation over our posture in Vietnam. Such a holding would make a shambles of the First Amend ment. I would affirm the judgment of the Court of Appeals in The Post case, vacate the stay of the Court of Appeals in The Times case and direct that it affirm the District Court.

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