439 U.S. 886
99 S.Ct. 241
58 L.Ed.2d 233
NEW YORK TIMES COMPANY and Myron Farber, petitioners,v.NEW JERSEY and Mario E. Jascalevich
No. 78-540
Supreme Court of the United States
October 6, 1978

Motion to vacate stay granted, and it is ordered that the order of Mr. Justice STEWART dated September 26, 1978, is hereby, vacated.
Mr. Justice MARSHALL, dissenting.
I dissent from the decision of the Court to vacate the stay entered by Mr. Justice STEWART on September 26, 1978.
The motion to vacate provides a third occasion for me to consider the merits of the contentions raised by the New York Times and Farber in their petition for certiorari.  On the first occasion, I denied their reapplication for a stay because of the premature stage of the state court proceedings.  439 U.S. 1304, 98 S.Ct. 3060, 58 L.Ed.2d 12 (1978).  Upon petitioners' reapplication for a stay after they had been held in contempt, I expressed my opinion that:
"Given the likelihood that forced disclosure even for in      camera review will inhibit the reporter's and newspaper's      exercise of First Amendment rights, I believe that some      threshold showing of materiality, relevance, and necessity should be required.  . . .  Examination of the record      submitted with this application discloses that the Superior      Court did not make any independent determinations of      materiality, relevance, or necessity prior to ordering the      applicants to submit the subpoenaed materials for in camera      review."  439 U.S. 1331, 1335, 99 S.Ct. 11, 58 L.Ed.2d 38      (1978).
I was compelled to deny that reapplication for a stay, however, because I could not conclude in good faith that four members of this Court would vote to grant a writ of certiorari, a criterion that must be satisfied before a single Justice can grant an application for a stay.  Now that the matter is presented to the entire Court for decision, I am no longer so constrained.


1
I adhere to my view, notwithstanding the intervening decision by the Supreme Court of New Jersey, that petitioners have raised substantial claims under the First and Fourteenth Amendments. Under the circumstances, I believe that both the criminal and civil contempt penalties should be stayed until this Court disposes of the petition for certiorari.


2
Mr. Justice BRENNAN took no part in the consideration or decision of this motion.

