IF THE MONTHLY magazine, The Progressive, has what the Department of Justice says it has -- secret information on how a hydrogen bomb works -- it should forget about publishing it. There is not exactly a large public interest to be served -- or even a small one -- in making available to all information on how to build nuclear weapons. That, it seems to us, is the indisputable social-policy conclusion one must reach on considering the issue. But our urgent recommendation that The Progressive not insist on going forward with publication of the prospective article that has landed it in court does not rest solely on a view of what's good or bad or useful or useless in the way of generally disseminated information. As a press-versus-government First Amendment contest, as far as we can tell, is John Mitchell's dream case -- the one the Nixon administration was never lucky enough to get: areal First Amendment loser.
We are not privy to the details of the negotiations that apparently went on between the government and The Progressive before the Department of Justice went into court Thursday night. As we understand them, the government asked the magazine to delete certain portions of an article it was preparing for publication on the grounds that they contain important secret data concerning the inner workings of nuclear bombs. When the editors refused, the Justice Department sought and obtained a judicial order prohibiting publication at least temporarily. The department's effort was bolstered by affidavits from nuclear experts saying that information in the article could reduce the time it will take some foreign governments to develop thermonuclear weapons from decades "to a few years."
The reports from Wisconsin, where The Progressive is published, indicate its editors are disposed to fight that order because they regard it as an "attempt at prior restraint." Should they pursue the fight they seem almost certain to lose it, given the present judicial climate. While the Supreme Court has never sanctioned a court order barring the publication of anything, there are strong indications it would do so if confronted with a case of this nature and magnitude. So, from the point of view of those who think the current membership of the court misreads the First Amendment -- including, presumably, the editors of The Progressive -- this would be the worst possible test case. In fact, the damage that further judicial proceedings are likely to do to the First Amendment might be irreparable, even in another era when justices might look with more favor on the press's claims and concerns.
There are a great many differences between this case and the Pentagon papers case, the federal government's last attempt to get the courts to prohibit publication of certain articles in the press. There is a specific law, the Atomic Energy Act, covering this type of information; the information itself evidently cannot be characterized as that earlier material could as being not just of a largely historical nature, but also of indisputable interest and importance to a public seeking to understand the acts that a government had taken and was continuing to take in its name; and material itself exists within a realm of information that is generally considered to rank among the most indisputably deserving of the protection of secrecy.
A final (and potentially useful) difference has to do with the simple fact that The Progressive is a monthly publication and the contested article is under consideration only for an issue that doesn't go to press for a couple of weeks. Therefore, the judge's temporary injunction against publication has so far not kept anything from being published. No prior restraint as such has yet been exercised. The magazine's editor, Erwin Knoll, concedes as much. And this means there is still time to avoid the ultimate pointless and destructive confrontation that will almost certainly enshrine prior restraint in precedent and law -- and do so in a cause that cannot even be defended, if The Progressive in fact has the kind of material the government is talking about. If it does have such material, the magazine, on its own motion , should decide now against printing the piece, or at least its troubling sections. It will be doing everyone -- including the friends of the First Amendment -- a great service if it does so.