#Forthwith vs post haste trial
Conceivably, such exceptions may be lurking in these cases and, would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures.
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There are no doubt other exceptions no one has had occasion to describe or discuss. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire" in a crowded theater if there was no fire. The newspapers make a derivative claim under the First Amendment they denominate this right as the public "right to know" by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic "scoop." The right is asserted as an absolute.
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The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases, and was not warranted. 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 documents. But prompt judicial action does not mean unjudicial haste. The prompt setting of these cases reflects our universal abhorrence of prior restraint. JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed, and I need not restate them. I suggest we are in this posture because these cases have been conducted in unseemly haste. Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act? No member of this Court knows all the facts. No Court of Appeals judge knew all the facts. These cases are not simple for another and more immediate reason.
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Only those who view the First Amendment as an absolute in all circumstances - a view I respect, but reject - can find such cases as these to be simple or easy. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government, and, specifically, the effective exercise of certain constitutional powers of the Executive. Adherence to this basic constitutional principle, however, does not make these cases simple. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. 415 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. 697 (1931), until recently in Organization for a Better Austin v. So clear are the constitutional limitations on prior restraint against expression that, from the time of Near v.