In 1971, it took two weeks before the Supreme Court acted, but when The New York Times and The Washington Post resumed their judicially interrupted series of articles based on the Pentagon Papers.
In 1979, it took six months before the Justice Department threw in the towel, but then The Progressive magazine, not troubling to update the type set in March, triumphantly appeared with the article "The H-Bomb Secret, How We Got It -- Why We're Telling It."
In the Pentagon Papers case, the first temporary restraining order in American press history was overturned. In the Progressive case, the first permanent injunction was withdrawn. These may appear to be victories for the American press but, on closer study, they look more like paper victories.
The thrust of the 1971 decision was that the Pentagon Papers did not pose a threat serious enough to warrant prior restraint. The Nixon administration, said the court, had not met the "heavy burden of showing justification." It left the implication, however, that with stronger justification the government might have better luck in the future.
The outcome in the Progressive case was much more unsatisfactory. Far from being the "clear-cut victory" that editor Erwin Knoll called it, it was no victory for the press, for national security or, least of all, for the law.
The federal government, in the end, came out looking like the Sorcerer's Apprentice, its magic injuctions unable to stem the spate of speculation about the design of the H-bomb. Having stopped The Progressive, and then the Daily Californian in Berkeley, it gave up when the H-bomb information turned up in the small-circulation Madison Press Connection.
On all sides, the performance was dismal. It was The Progressive, let us not forget, that baited the government into censorship in the first place. Had the magazine simply published Howard Morland's article, it might well have been passed over without official comment. But, treading unsurely, The Progressive itself sent the revised version of the manuscript to the Department of Energy, then proceeded to prod the department for a reaction. When the sluggish bureaucracy finally awoke, it sprang into action to demand censorship.
The government itself was the gravest offender against national security. I am not referring to the discovery that since 1971 eight "highly sensitive" documents on thermonuclear weapons had been accidentally declassified and placed on the public shelves of a government library (that discovery, incidentally, a fringe benefit of the Progressive case), but to the fact that whatever harm was done by the Morland article was vastly compounded by the government's conduct.
Every security officer knows that it is official confirmation that makes sensitive information really dangerous. Until the government says it is true, it may be only idle speculation. But in its zeal to squelch the article, the government announced to the court that Morland had the H-bomb design basically right and therefore -- Catch 22 -- it had to be banned.
The value of the Morland article to foreign intelligence agencies increased a hundredfold when federal District Court Judge Robert Warren in Milwaukee gave his endorsement: "The court finds concepts within the article that it does not find in the public realm -- concepts that are vital to the operation of the bomb."
Finally, the most unfortunately of all the aborted case leaves standing the mind-boggling legal doctrine on which the injunction rested. That is the "classified at birth" principle, written into the Atomic Energy Act of 1954 in a spasm of congressional concern over a nuclear monopoly, perceived as threatened by espionage and treason.
"Classified at birth" means that any notion about nuclear weapons that comes out of someone's basement laboratory, blackboard or mind can be arbitrarily stamped secret by the government. Thus, it did not matter whether Morland, as he claimed, used no government-classified information. What only matters, under the law, is that the government says it is something about nuclear weapons that it is best to keep secret.
This sleeper provision, never tested in the courts, appears to represent an unprecedented government invasion of the ideas of private persons. It would be useful to have the Supreme Court pass on whether it is unconstitutional in its vagueness and sweep -- especially now that the nuclear monopoly it was designed to protect has long since been lost.
Although an attempt at censorship collapsed of its own weight and unfeasibility, the "prior restraint" precedent remains, and so does the Draconian law on which it rested. Although, this was not much of a victory.