THE DECISION of a federal judge in Wisconsin to restrain The Progressive from publishing an article about the hydrogen bomb was almost inevitable, given the information the article contained, the evidence presented to the judge and the current state of the law. But that does not make the ceision any better in terms of First Amendment freedoms. It represents a real setback to the cause of free inquiry in this country.
The information Judge Robert W. Warren has suppressed is, as we understand it, a description of one of the key concepts used in linking the chain reaction of the atomic bomb to the heavy hydrogen that produces the H-bomb's power. The Progressive argues that Howard Morland's article cannot be classified by the government because Mr. Moland found all the elements of it somewhere in the public domain. (In an excerpt from his affidavit, which we reprint on the opposite page today, the reader will get an illustration of this process of discovery.) Certainly many theories of how the bomb works exist in the public domain; and it is also true that all the features of its composition have been known to physicists for decades. But Mr. Morland did more than merely rediscover some abiding scientific principles or well-known techniques. And he also did more than merely come up, intellectually and by virtue of a great imaginative leap, with the proper concept of how to put the technological pieces together.He, or The Progressive, in any case-in order, they now concede, to make sure they were not publishing classified information-submitted his manuscript to the government, saying that they wanted to see whether it was accurate. They have learned, to all our sorrow, that in the government's view it was both classified and accurate.
The basic argument here is whether the material can be classified if it was arrived at as Mr. Morland says it was and if all of it exists in the public domain. The weight of the evidence presented to Judge Warren, including some of the affidavits submitted by The Progressive itself, is that a description of a concept that is vital to the H-bomb has never appeared in print and is not in the public domain. If those affidavits are correct, the public-interest case against printing is strong. The information, we are told, could enable technically ready nations to build hydrogen explosives much more quickly than they otherwise might. Mr. Morland's claim on the opposite page that the U.S. government, in trying to suppress publication, is only trying to monopolize discussion of policy is, to us, wholly unpersuasive. you don't need this kind of information to discuss or understand policy questions on nuclear arms.
To say we think The Progressive's article contains properly classified information is not to say we think Judge Warren's order was a useful or appropriate response. Never before has a federal judge issued an injunction forbidding a newspaper to publish anything , and this is no time to start. Judge Warren's order, especially if it is sustained on appeal, will set a precedent on which other orders will be based.Once the door is open to advance judicial scrutiny of what the press may publish, it will never be closed. The loss will be immensely destructive.
Our own view is that Judge Warren's order is unconstitutional. The proper procedure would have been for the government to permit The Progressive to print the article, if it chose to do so, and to face the consequences of violating the Atomic Energy Act. That was the way those who wrote the First Amendment intended it to be understood-no prior restraint, but subsequent punishment for illegal acts. In fact, we doubt that The Progressive, or any other responsible publication, would print such material after the government has made as strong a showing of proper secrecy and potential danger as it has in this case.
Unfortunately for the First Amendment, it is highly unlikely that the current membership of the Supreme Court will follow the interpretation we think its language deserves. All the indications from its recent cases are that it will approve the issuance of restraining orders against the press "in appropriate cases." Given the language used by several of the justices in the Pentagon Papers case a few years ago, it seems clear they would consider as "appropriate" a case like this one in which the trial judge has ruled that the "secret" is properly classified and its exposure would seriously endanger the national security and welfare.
In this situation, the First Amendment would be best served by a negotiated settlement under which The Progressive publishes a revised version of its article, leaving out the details to which the government objects. That would not only prevent the establishment of a worse legal precedent than already exists, but it would also permit the magazine to make one of the key points its editor has in mind. The Progressive wanted to demonstrate that many government secrets aren't really secrets if you know to look for them in unclassified places. By objecting so violently to the publication of this article, the government has made The Progressive's point for it.