A federal judge, taking on what he called a "terrible responsibility," issued a preliminary injunction today to stop the Progressive magazine from publishing an article on the hydrogen bomb.
The injunction -- said to be the first of its kind in history -- will remain in effect whild the Progressive challenges it in the 7th U.S. Circuit Court of Appeals in Chicago and, if it loses there, in the Supreme Court.
Judge Robert W. Warren, saying that his action will bring him "notoriety" of a kind he would not actively see, predicted that the higher courts will uphold him.
He said he was issuing the injunction partly because of "the disparity of the risk involved" in a "basic confrontation" between "national security" and the First Amendment to the Constitution.
If he were to err against the Progressive, he said, he would seriously injure the free press; if he were to err against the government, he might risk "thermonuclear annihilation of us all."
At another point, Warren said, "One cannot enjoy freedom of worship, speech and press unless one first has freedom to live."
On the steps of the federal courthouse, howevet, Erwin Knoll, editor of the 40,000-circulation monthly published in Madison, Wis., told reporters: "The only thing that is in jeopardy is the freedom of the American press and of the American people -- and nothing else."
Warren issued the injunction at the end of a 90-minute recess he had called to let the Progressive consider a surprise ultimatum from the bench. The judge told the magazine he would enjoin publication unless it agreed to appointment of a five-member panel to try to mediate the dispute about 1,322 words in the article that the government wants to delete.
As proposed in a friend-of-the-court brief by the Washington-based 5,000-member Federation of American Scientists, the government and the magazine each would nominate two "senior representatives of the U.S. media" and two "senior weapons scientists." Warren then would select two nominees from each category and appoint "some respected lawyer or retired judge" to be chairman of the panel.
By contrast, under a proposal by the American Civil Liberties Union, the judge would have named a panel of scientists merely to sift out competing factual claims about the article instead of editing it. Warren rejected the ACLU's idea today on the ground that he already has sufficient advice from experts on both sides.
When the proceeding reconvened, Deputy Assistant Attorney General Thomas S. Martin said the government "would participate in good faith" in the mediation attempt, but cautioned that it already had reduced its originally proposed deletions by 40 percent and might not be able to go much further.
For the Progressive, attorney Earl Munson Jr. rejected mediation, saying, "The editors believe they cannot compromise their First Amendment position."
At the press conference, editor Knoll said he had turned down the olan because he was not going to assist the government "in enshrining secrecy by publishing a truncated article." To let First Amendment rights be determined by mediators "would be a frightening thing," he said.
Separately, Mark Lynch, Washington staff counsel of the ACLU, also denounced the mediation proposal, terming it "absolutely appalling" that Warren was trying to "negotiate" rather than adjudicate constitutional rights.
Warren said he was "disappointed" at being left with "no choice" except to issue the preliminary injunction. He acted less than three hours before the Progressive's deadline for the May issue, in which it had planned to publish the article under the title, "The H-Bomb Secret: How We Got It, Why We're Telling it." The writer is freelancer Howard Morland.
The judge ordered the Progressive to try to retrieve every copy of the article and of related materials that have been declared "secret respected data" by the Department of Energy and that have been circulated to scientists for review. He ordered the magazine's editors and lawyers to give him, in chambers, and initial accounting of the retrieval in five days and a second one in 10 days.
At the same time, the judge lifted a temporary restraining order (TRO) which he had issued at the government's request March 9.
In the only previous case reasonably similar to this, the government in 1971 got a TRO to prevent The New York Times from publishing the socalled Pentagon Papers on the Vietnam war. Four days later, however, the judge lifted the TRO and refused to issue a preliminary injunction. Another judge refused to issue even a TRO to prevent publication by The Washington Post.
In today's action Warren essentially accepted all of the government'e arguments for enjoining the Progressive.
First. he said, the article falls within the "extremely narrow" exceptions allowed by the Supreme Court for prior restraints of publication because it contains technical information "analogous to troop movements in time of war."
The judge cited warnings by high government officials, indcluding Secretary of State Cyrus Vance and Secretary of Defense Harold Brown, that publication of the article could make available to other countries, sooner than otherwise, information that could significantly contribute to proliferation of nuclear weaponry.
Defense lawyer Munson cited affidavits of nearly a dozen experts -- some of them employes of a government nuclear weapons lab -- that Morland had obtained data available to any competent physicist or determined investigative reporter.
Second, Warren held the government had demonstrated a violation of the Atomic Energy Act, since the Progressive was about to communicate restricted data tha, in the words of the law, "will be utilized to injure the United States or to secure and advantage to any foreign nation."
Finally, the judge said, the government had met the standard laid down in the Pentagon Papers case by two members of the Supreme Court's 6-to-3 majority that allowed publication, Justices Potter Stewart and Byron R. White: a prior restraint can be tolerated only if publication "will surely result in direct, immediate and irreparable damage to our nation or its people."
Warren rejected the Progressive's argument that the government hadn't shown any such grave threat. The magazine argued that little damage can result from publication of information available to anyone.