The ban on Progressive magazine's publication of an article on the hydrogen bomb was retained yesterday by a federeal judge in Milwaukee with a one-sentence public memo and a seven-page secret opinion.
U.S. District Court Judge Robert W. Warren took the action three days after hearing arguments in his chambers on whether to lift a preliminary injunction - the first in American history to impose a prior restraint on publication of information protected by the First Amendment to the Constitution.
The government had requested the injunction, which Warren issued March 26. Pleas to lift it were made by the American Civil Liberties Union, counsel to Progressive editors Erwin Knoll and Samuel H. Day Jr., and by attorneys for the magazine itself and for Howard Morland, author of the article.
Within minutes after Warren acted yesterday, an ACLU lawyer who had been standing by in the federal courthouse in Chicago filed a petition to the 7th U.S. Circuit Court of Appeals for an expedited review of the decision.
The appellate court had set Sept. 10 for a hearing on an earlier challenge to the injunction. Now the ACLU wants the court to hear oral arguments early next month.
"We have requested expedited review because every day publication is forbidden constitutes a new violation of the First Amendment," ACLU legal director Bruce J. Ennis said.
"We belive the accelerated schedule is mandated by controlling Supreme Court decisions and by the very heavy presumption against prior restraint of political speech," Ennis added.
Chief Justice Warren E. Burger, summing up those decisions in 1976, wrote that the thread running through all of them "is that prior restraints . . . are the most serious and least tolerable infringement on First Amemdment rights."
The 1971 Pentagon Papers case was the first to raise directly the issue of government efforts to prevent newspapers from publishing materials in their possession. The materials in that case were classified. The Progressive's came from public sources but were found by Warren to contain classified concepts in violation of the Atomic Energy Act.
The court decided the Pentagon Papers case with an unsigned 6-to-3 opinion that the government hadn't carried the "heavy burden" of justifying imposition of prior restraint. Two members of the majority, Justices Potter Stewart and Byron R. White, said the government hadn't shown that "disclosure will surely result in direct, immediate and irreparable harm to our nation and its people."
The ACLU said it couldn't comment on the content of Warren's opinion because it is secret. The magazine's editors and Morland didn't seek, and don't have, security clearances, as do the ACLU's lawyers, and so they cannot read the opinion.
Secret opinions are rare. Two have been issued here by U.S. District Court Judge Gerhard A. Gesell - in 1976, in a case in which the Military Audit Project sought financial information on the planning, development and operation of the Glomar Explorer, the ill-fated CIA spy ship, and recently in another CIA case.
From the start of the Progressive case, the government has contended that publication of the Morland article would cause precisely the kind of harm cited by Justices Stewart and White, by identifying the nature of the design of American thermonuclear weapons.
The magazine rejects that contention. Editor Knoll argues that the government suppressed an article derived from unclassified sources to stifle debate on public issues such as nuclear proliferation. Morland; commenting on Warren's ruling, said it "perpetuates the illusion that suppression of public understanding is justified by the need of secrecy."
Recently, the government admitted it erroneously declassified, and made available at one of its libraries, documents that revealed "the essential secret of the H-bomb."
The admission as relied upon yesterday by the ACLU and by White & Case, the Wall Street law firm representing Morland without fee. In a joint brief filed with the 7th Circuit, they said that Warren's injunction cannot be effective because all of the information in the article already has been published by the government, and by numerous non-government newspapers, magazines and books as well.