THE CASE of the United States v. The Progressive Magazine is spoiling. The government is discovering that, in the process of shielding some secrets, it is either exposing or may be forced to expose others. The news media are discovering that the web of classification is almost impenetrable, especially because the judicial proceedings on such a question are themselves secret.
These fresh complications began with the disclosures that several hydrogen bomb "secrets" have been on the open shelves of a library at Los Alamos. The government, saying this material had been improperly declassified, is now trying to correct its error. But by doing so, it is pointing out which documents were vital to development of an H-bomb and which were not.
Some think these disclosures have undermined the government's case against The Progressive. Because the material contained in the article, or material similar to it, was on the open shelves, the argument goes, it can no longer be regarded as secret.
That is one of the issues a federal judge in Milwaukee has apparently decided (his opinion is secret) in favor of the government. While the government may have a legal right to restore the classification if the documents were properly classified in the first place, it is of marginal value to do so if the secrets are already compromised. Yet the government seems to have no idea of how many, if any, unauthorized people looked at those documents while they were on the open shelves.
The Progressive case is further complicated by what has become known as the "classified at birth" theory - that H-bomb material can be classified secret when it springs from the mind of a scientist or author. This theory is phony. Classification describes an action the government takes. It involves a government assertion that it has classified certain information secret. But even ideas born to citizens who have never had access to classified information can be classified when the government learns of them.
The author of the Progressive article contends he learned how to build a hydrogren bomb without having seen any classified data. The claim seems questionable - and has been questioned. But if it is true, and if he and his editors had no idea they possessed classified information, they could have published the article months ago with impunity. That situation changed once The Progressive submitted the manuscript to the government. The government asserted its right to classify, and the author is now stuck with it unless he can convince the government or a court the classification was improperly applied.
But whether or not he's stuck with a classification decision doesn't mean that he can constitutionally be prevented from publishing it. It is hard to understand why anyone should want to publish details of how to build a hydrogen bomb, whether those details are legally secret or not. But a court order barring the publication of that, or any other, information violates the basic principles of the Constitution.
The Progressive should not have been enjoined from publishing its article. If the article does contain the secrets the government claims it does and the magazine published it anyway, its editors could be prosecuted under the Atomic Energy Act and, if the criminal provisions of the act are constitutional, convicted. That act authorizes punishment far exceeding that likely to be imposed for violating a judicial restraining order.By refusing to rely on the deterring effect of the criminal provisions of that law, the government has gotten itself into the position of giving away as many secrets as it is protecting, or maybe more.