H-Bomb Ban

A judge uses "prior restraint"

A mistake in ruling against the Progressive will seriously infringe cherished First Amendment rights. A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all.

With those words, U.S. District Court Judge Robert W. Warren of Milwaukee starkly defined the conflict: freedom of the press vs. national security. Last week Warren came down firmly on the side of the Government. He issued a preliminary injunction barring publication of a 3,350-word article in the magazine describing how a hydrogen bomb works. The injunction replaced a temporary restraining order he imposed March 9.

Warren thus became one of only a handful of federal judges ever to exercise "prior restraint," that is, ban a story before it is published. Trying to avoid this fateful step, he first suggested that an independent panel of two press representatives, two arms specialists and one jurist work out compromise deletions so the article could be printed. The Government was willing, but the magazine was not. Said Editor Erwin Knoll: "You can't mediate your First Amendment rights."

Judge Warren agreed with the Government's contention--outlined in a blizzard of affidavits from atomic experts and Cabinet Secretaries Cyrus Vance (State), Harold Brown (Defense) and James Schlesinger (Energy)--that the article would irreparably damage the security interests of the U.S. While conceding the story probably did not "provide a 'do-it-yourself' guide for the hydrogen bomb," Warren found that it contained vital concepts restricted under the Atomic Energy Act of 1954. (Significantly, the Government could invoke no such statutory authority when it tried unsuccessfully to block publication of the Pentagon papers in 1971.) "The article could possibly provide sufficient information to allow a medium-sized nation to move faster in developing a hydrogen weapon," he concluded.

The Progressive (circ. 40,000), a respected liberal monthly based in Madison, Wis., had argued that all the material in the article was in the public domain, compiled by a freelance writer who simply read extensively and interviewed numerous experts. Said Progressive Lawyer Earl Munson Jr.: "If Howard Morland can do it, then there is no secret, and the Government is only fooling the public."

Morland, 36, a longtime nuclear opponent, was determined to make precisely that point from the start. As he told TIME Correspondent Barry Hillenbrand: "I think the H-bomb secret is a political secret, not a technical secret. I wanted to explain the fact that there is no secret. But simply to say there is no secret and not go any further carries less impact than actually demonstrating the fact."

Morland's association with the Progressive began last year after he was introduced to Samuel H. Day Jr., the magazine's associate editor and an anti-nuclear campaigner. Ironically, Morland had once intended to become a nuclear scientist, but a few introductory courses at Atlanta's Emory University convinced him otherwise. He majored in economics, spent five years as an Air Force pilot and held down various jobs. His first contribution to the Progressive, a 3,400-word piece on tritium, a form of hydrogen used in H-bombs, appeared in February.

The Progressive intends to take its case to the U.S. Court of Appeals in Chicago and to the Supreme Court if necessary. Elsewhere in the press, this prospect is greeted coolly. True, many editors are skeptical of the Government's national security claims and opposed as a matter of principle to prior restraint. But they are also concerned that a dangerous precedent could be set if the appellate courts and the high court conclude, as Judge Warren did, that the risks are too great to permit publication. Editorialized the Washington Post, "This is John Mitchell's dream case--the one the Nixon Administration was never lucky enough to get: a real First Amendment loser."

But in court last week, Lawyer Munson disagreed: "This is not John Mitchell's dream case. It is a Schlesinger-Brown nightmare. The Government has publicized the case more than 40,000 copies of the Progressive ever would have."

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