THE COWARDLY LIONS OF THE PRESS

...If The Progressive wins, the chances for true national security will be considerably enhanced...

...Four days later he lifted it, denying the Government a preliminary injunction...

...Judge Warren reads the newspapers too...

...Tolerable to whom...

...The Progressive, Inc...

...They talk about the poor judicial climate," Knoll continued with some heat...

...Erwin Knoll and his colleagues explain: "Nuclear substances and nuclear production processes are hazardous — not only in time of war, but at all times...

...In the debates before the adoption of the First Amendment in 1791, some argued that freedom of the press meant no penalties of any kind could be imposed on publications, even after something was printed...

...Except when the publisher encourages a strike...

...How so...

...As The Washington Post — which has otherwise been grossly obtuse in editorializing about this confrontation — said on March 28, "Judge Warren's order, especially if it is sustained on appeal, will set a precedent on which other orders will be based...

...That secrecy dragnet makes not only the defendants at The Progressive but thousands more Americans acutely vulnerable should the Government win this case...

...If they had prevailed, there would be no prosecutions for libel or obscenity...

...Remember, because of the March 9 temporary restraining order, The Progressive was hobbled in its defense because it could not specifically refer to the banned article...

...Other papers didn't need Mr...

...The first New York Times editorial (March 11) waffled, ending by supporting the temporary restraining order because what the hell, "a week or two of enforced restraint for a monthly journal seems a tolerable price...

...This is not the right time...

...The head in the lower left-hand corner was: judge bars hydrogen bomb article after magazine rejects mediation It had finally happened...

...Just before imposing a preliminary injunction on The Progressive fifteen days later, Federal District Judge Robert Warren pointedly noted that the magazine's insistence that its First Amendment rights are inviolate did not have "the blessing of the entire press...

...Rights exist only when they can be exercised...

...The Star's source: the Government...

...How did that ever come to pass...

...Louis Post-Dispatch and The Seattle Post-Intelligencer...

...Also genuflecting before "national security" and censuring The Progressive were Bob Clark, executive editor of The Louisville Courier-Journal and Times, and Reg Murphy, publisher and editor of The San Francisco Examiner...

...When The Times was hit with a temporary restraining order in 1971, it rightly hurled the First Amendment like a thunderbolt at the Government...

...Said Madison, "Knowledge will forever govern ignorance...

...Copyright ® 1979 The Village Voice, Inc...

...When I talked with Erwin Knoll, editor of The Progressive, shortly after the first gag was placed on the magazine, he told me that in addition to the editorials pressuring him to drop the case and let himself be censored, he had been receiving many phone calls — most of them from old friends in the business of free inquiry — pleading with him to yield to the Government...

...There is no way for The Progressive to win "given the present judicial climate...

...The editorial writer did neglect to point out where it says in the Bill of Rights that monthly journals have access only to the back door of the First Amendment...

...The grim threnody was echoed by Editor & Publisher...

...The cowardly lions of the press Some papers bought the Government line Nat Hentoff Three-lines deep, six-columns wide, the March 27 headlines in The New York Times celebrated the signing of the Egyptian-Israeli peace treaty...

...After the temporary restraining order was issued, The Washington Star judiciously noted that The Progressive "has presented the Government with a nearly flawless case for prior restraint...

...That is why secrecy is so vital to government, for once there is enough secrecy, all will be calm...

...This was the main, dolorous theme of majority press criticism of The Progressive's chutzpah, in calling on the First Amendment to protect it from Government censorship...

...Americans need detailed information about H-bomb technology in order to assess such risks and confront the question of whether the nuclear arms race is worth the price we pay for it, not only in terms of our tax dollars but in terms of the insecurity generated by the weapons program...

...Why, what happened at the Three Mile Island nuclear generating plant in Pennsylvania could contaminate all kinds of insiders' plans...

...In the March 22 New York Law Journal, Goodale, after revealing the weaknesses in the Government's case, nonetheless advised The Progressive "not to push this particular case to a final decision at this particular time...

...and it is already apparent that the press is going to be blamed for something many responsible segments were opposed to...

...Next generation, next century, when the climate improves, then it will be time to fight for a free press...

...On March 28, in its second editorial, "The Progressive and the Bomb," The Washington Post said that while "we think The Progressive's article contains properly classified information," nonetheless Judge Robert Warren had acted unconstitutionally in chaining the magazine with a preliminary injunction...

...only such order in 180 years...

...But, in view of the poor judicial climate, this case is still a First Amendment loser...

...but the handling of that case by the courts evaded any First Amendment issue — the Government won on the basis that Marchetti had signed a secrecy contract, and then broken it...

...Every day...

...And so, these editorial writers are engaged in creating a self-fulfilling prophecy...

...But the quaking mood of much of the nation's press leaders was distilled in a lead editorial in Editor & Publisher: "It is a bad case that will make bad law...

...James Madison, the principal drafter of the First Amendment, laid it all out in a statement that has an eerily prescient relationship to the Carter Administration's zeal in prosecuting The Progressive for violating nuclear "secrecy...

...They feel appellate courts will find, as this court has, that the risk is simply too great to permit publication...

...Judges read the newspapers, and if they keep reading that they're going to rule against the First Amendment, well, the momentum is there...

...The reaction of much of the nation's press to the Government's raid on The Progressive — particularly in the early stages when, as in any complex story, the press has the most impact on the still unformed and confused views of the citizenry, including judges — has been dismaying...

...James Schlesinger, Secretary of the Department of Energy, actually called certain newspapers, for instance, to warn that if The Progressive's H-bomb piece were printed, foreign nations would be able to produce nuclear weapons in a much shorter period of time than would be otherwise possible, thereby terrifyingly accelerating the risks of thermonuclear war...

...Titling its editorial "John Mitchell's Dream Case," that paper uncritically repeated the Government's contention that The Progressive's article did include secret data and would speed nuclear proliferation...

...Nuclear missiles pose the danger of what scientists call 'fratricide' — one weapon setting off another — not on enemy territory, but here at home...

...Despite such cowardly lions of the press as The Washington Post, this battle — the most crucial in First Amendment history — goes forward...

...Somehow The Washington Post has become John Mitchell's dream newspaper...

...Nor does the Government have to formally restrict this new data, because everything concerning the design, manufacture, or utilization of nuclear weapons is automatically classified unless the Government declassifies it...

...As we shall see, Schlesinger was hustling in his ponderous way, but some papers bought the line...

...On March 9, the same Federal District Judge, Robert W. Warren, had issued a temporary restraining order in the same case, The United States of America vs...

...Accordingly, as The Progressive pointed out in its brief, "A journalist's 'original work product,' a private scientist's independent research, a university professor's deductive reasoning can all be 'classified at birth.' " Instantly, they become "Restricted Data...

...For the first time in American history, a court had issued an injunction censoring a publication right smack in the face of the First Amendment...

...That was startling enough, there having been only a single precedent for that only slightly less harsh assault on the First Amendment...

...I don't believe," said the editor of The Progressive, "that the First Amendment is negotiable...

...The loss will be immensely destructive...

...And a people who mean to be their own governors must arm themselves with the power knowledge gives...

...There are dangers to the environment, to human health and human lives...

...Actually, the judge added, bolstering his own self-justification, "many elements of the press see grave risk of permanent damage to First Amendment freedoms if this case goes forward...

...Therefore, this is "a real First Amendment loser," and The Progressive should back off, avoiding "the ultimate point'We beg you, John Peter Zenger not to defend yourself against these charges of seditious libel' less and destructive confrontation that will almost certainly enshrine prior restraint in precedent and law...

...This article is reprinted, by permission, from The Village Voice...

...Those "responsible" folk had been quoted earlier in that editorial as saying that they would never have published the story, Scout's Honor...

...Until now the most knowledgeable and trenchant paper in the country on First Amendment matters, The Los Angeles Times, sounding like an assistant press secretary to the Joint Chiefs of Staff, accused The Progressive of breaching national security and urged the magazine to surrender because otherwise a court battle "might well end in the imposition of prior restraint on publications for the first time in the history of this country...

...If there is no First Amendment for The Progressive, there is no First Amendment for anyone...

...The Government doesn't even have to formally notify the journalist or the scientist that he's been stamped "Secret...

...Well, what do you suppose helps build an adverse judicial climate...

...Except for "accidents...

...The information may already be in the public domain, available to individuals and nations, but communicating it is criminal until the Government clears it...

...And then, as for this notion that we should voluntarily surrender our freedom so that theirs won't be imperiled, the answer is very clear...

...Briefly, that thesis, also known as "Born Classified," holds that under the Atomic Energy Act of 1954, all data concerning the design, manufacture, or utilization of nuclear weapons — even if not in Government files — is "restricted...

...The Nation immediately, and on the front page, saw through the Government's scam...

...Not all of the press were summer soldiers of the First Amendment...

...Anyway, by March 25, after the preliminary injunction had been imposed, The Times resoundingly returned to the concept of a First Amendment that covers a monthly journal of 40,000 just as vigorously as it does The Times...

...In fearful sum, avoid the Supreme Court at all costs...

...But it was The Washington Post (March 11) which most poisoned the free-press atmosphere...

...But The Times, as we all know, is indispensable to the nation...

...We beg you, John Peter Zenger, not to defend yourself against these charges of seditious libel...

...As the magazine says, without hyperbole, "We can imagine no more chilling a restraint on the free interchange of ideas, free speech, and freedom of the press...

...What turned the trick was that The Times had by then been sent and had studied The Progressive's court papers...

...Later...

...If the founders had intended it to be negotiable, they would have written a mediation process into the Constitution...

...Jack Landau, head of the Reporters Committee for Freedom tsicj of the Press...

...Looking at that front page, a man I know, who has had rather shattering personal experience of how fragile the First Amendment can be, told me, "There's a story in the lower left-hand corner that may, I'm afraid, have a much deeper and longer impact on the way we live than those ceremonies in Washington yesterday...

...At Rocky Flats, Colorado, where the 'triggers' for H-bombs are made, at least two tons of plutonium have escaped into the environment, undoubtedly causing many cases of cancer...

...Ben Bradlee, the dashing editor of The Washington Post, declared, "There are times when common sense should prevail over some theoretical right...

...The Government, accordingly, was free to claim that all manner of looming catastrophes would surely result if the article were published...

...Of all the early editorials, the most disappointing was that of The Los Angeles Times ("An Unnecessary Danger," March 13...

...The Royal Governor, the courts, are all against you...

...Indeed, until now, even the dullards of American constitutional law have agreed with Chief Justice Oliver Wendell Holmes that "the main purpose" of the First Amendment is to prevent prior restraint of the press...

...Of particularly malignant interest on the Government's side is its doctrine, "Restricted at birth," which, if upheld in the higher courts, will establish a form of thought control in this nation past George Orwell's imagining...

...I always thought the first law of journalism was to check out all the facts and arguments, not just rely on what one of the adversaries says, particularly when it's the Government...

...Schlesinger's guidance...

...Therefore, said the newspaper which broke Watergate wide open, "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...

...Editorials in The Washington Post and others like them in other papers...

...It is the wrong issue, at the wrong time, in the wrong place...

...And former CIA agent Victor Marchetti and his publisher, Knopf, were censored in the early 1970s...

...and even James J. Goodale, executive vice president of The New York Times and its resident First Amendment expert...

...But everyone agreed that there was to be no censorship, no prior restraint...

...So, along with some other papers, did The St...

...A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both...

...I would not publish this thing...

...I hope to dramatically illustrate that thesis by showing that what many people considered to be probably the ultimate secret [how an H-bomb is designed and functions] is not really a secret at all...

...A Federal court's unequivocal gutting of the First Amendment for "national security" reasons in The Progressive case is, therefore, causing great fear and trembling among the press and among constitutional lawyers...

...In 1971, a New York Federal judge issued a temporary restraining order against The New York Times's publication of the Pentagon Papers, the Nat Hentoff writes on First Amendment issues for The Village Voice and other publications...

...As for the imminent danger to national security posed by Morland's exegesis of the H-bomb, The Times finally concluded that the real case here is indeed "against the national interest — against free speech and free inquiry...

...More came along after the March 26 preliminary injunction...

...the conservative but usually libertarian columnist James J. Kilpatrick...

...Governments do not like to see their subjects infected with insecurity...

...They zoomed to judgment of The Progressive out of long-term conditioning as good American soldiers who will always give the Government the benefit of the doubt when it cries "Secrecy...

...In a conversation with Erwin Knoll after the first Washington Post editorial, he read me a note he had written to the paper: "I've been sort of busy these last few weeks worrying about the First Amendment, so I haven't had much time to worry about The Washington Post editorial of March 11, 'John Mitchell's Dream Case.' But I did have a fleeting thought I wanted to share with you...

...in a crowded, shrouded, nuclear theater...

...If the Government wins, we will finally have the functional equivalent of an Official Secrets Act, and there will be spacious precedent besides for further legislative variations on the dread thought-police invention, "Classified at Birth...

...At least one, after finally checking out The Progressive's court filings, was chagrined at having been had...

...Abraham Lincoln, to be sure, closed down some newspapers during the Civil War, but he never bothered to ask the courts whether he could or not...

...So Judge Warren of Wisconsin now goes down in constitutional history as the first jurist to actually stop the press from publishing by injunction...

...In the first place," said Knoll on March 12, "all this advice is coming from people who don't yet know our side of the case...

...Once the door is open to advance judicial scrutiny of what the press may publish, it will never be closed...

...And so, Howard Morland, the author of this ferociously embattled article — "The H-Bomb Secret: How We Got It, Why We're Telling It" — might be said to be proceeding on Madisonian principles when he declared, in a court affidavit: "The point of my article is that the myth of secrecy is used to create an atmosphere in which public debate is stifled and public criticism of the weapons-production system is suppressed...