IN DEFENSE OF THE FIRST AMENDMENT
In defense of the First Amendment Excerpts from friend-of-the court briefs in The Progressive's prior restraint case Editor's Note: On March 26,1979, Federal District Judge Robert W. Warren...
...The ability of the Government to release or not to release or to leak or not to leak information makes it highly important for the judiciary to review its assertions of the need for secrecy in any individual matter...
...and that any country deciding to commit the resources necessary for production could solve any design problems in the time period required to make the ingredients of a bomb...
...One would have thought this an absurd result until this case was brought...
...to impose exceptions upon the rule is in effect to destroy it...
...It is not to be ignored that the country has survived again and again in the face of the most serious predictions of doom, without having to resort to the method of prior restraints as a means of assuring national security____ Prior restraints are a particularly inept, and in the long run, ineffectual means of legal enforcement...
...Short of establishing a police state, it is extremely difficult for any society to suppress information for long, and particularly so once the attempt at suppression has become a national issue...
...Furthermore, although it is not necessary for a court to pass on the issue, the idea behind the article is important...
...Thus the lower court specifically found that the article "probably" does not provide a "do-it-yourself guide...
...A threat to freedom From the brief prepared by attorneys Kenneth P. Norwick, Michael A. Bamberger, and Burton Joseph in behalf of The Nation, Columbia Journalism Review, Playboy, National Journal, New York, New West, Juris Doctor, Inquiry, Working Papers, New York Review of Books, The New Republic, New Engineer, Focus Midwest, The Village Voice, St...
...and editing is selection and choice of material...
...again, it is simply in the nature of government to behave in this manner...
...Can one describe the blast at Hiroshima and studies of its victims...
...The discovery and dissemination of scientific knowledge frequently makes us anxious about the consequences, about the changes that will be wrought by our new capacities...
...At a time when debate over nuclear power daily grows more heated and when the Government's reputation for candor has increasingly been called into question by disclosures of past concealment, the inhibition such interpretation of the statute poses for free expression simply cannot be tolerated____ The district court's analysis departed from the principles of analysis long applied in considering Governmental restrictions — let alone Governmental requests for prior restraints — in two other unusual respects, departures which, while sufficient to support reversal in themselves, also point up deeper misconceptions on the part of the district court...
...Even if it could be said that appellants had been put on sufficient notice here, the overbreadth doctrine gives them standing to challenge the improper reach of the statute to others...
...Thus the court below, while not fully adopting that position, did talk about "a stark choice between upholding the right to continued life and the right to freedom of the press...
...It does not concern the right of the Government to protect information in its possession by adopting a classification system or other security measures to prohibit Government employes or Government contractors from disclosing such information...
...There has been considerable dissatisfaction with the operation of the classification system...
...Appeals to higher courts follow...
...Finally, it must be observed that it was not incumbent upon the Government to give the information in the Morland article any stamp of accuracy or inaccuracy...
...3) but that the rule against prior restraint does not apply to communication of information exclusively within the military sector...
...Thus, none of Amici cm state whether or not they would have decided, as did The Progressive, to publish and disseminate that article...
...Knowledge, of course, is power...
...Few have challenged this new premise about how our Government operates, even though it is totally opposed to the principle on which our system was founded...
...By exploring the scope, methods and implications of our present security apparatus the Morland article presents for public discussion issues of momentous concern to American democracy...
...ft should be obvious that no one concerned with this case favors such an outcome or would engage in any conduct likely to bring it about...
...Third, exceptions to the prior restraint rule place an inappropriate burden on the judicial system...
...Yet in the last analysis it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment...
...This definition merits a moment's pause...
...It is unaccompanied by the procedural protections built into our law for the enforcement of Government mandates by criminal punishment...
...This flawed logic only underscores the need for rigorous adherence to the stern requirements of proof____It is one thing to say that it is necessary, on rare occasions, for the courts to assess the consequences of a publication upon national security and in so doing, to consider the risks which may attend such publication...
...Judge Warren's ruling is pending appeal in the U.S...
...By bringing an injunction suit the Government has itself revealed its secret, such as it was...
...Whether Morland, a journalist, had actually deduced the design of the hydrogen bomb, or whether this information was misleading...
...Publication of information constitutes the very essence of the scientific method, and is imperative for scientific progress...
...Throughout the latter portion of its opinion the court refers to a "disparity of risk...
...The dangers of permitting exceptions to the rule against prior restraint are well illustrated by the proposed exception urged by the Government and accepted by the lower court in this case...
...As phrased by Judge [Murray L.] Gurfein in the district court opinion in The New York Timescase itself, "The security of the nation is not at the ramparts alone...
...But the mere fact that others have published the information in some form is apparently no guarantee that the information has been declassified — i.e...
...The potential for inhibition of speech on the part of those from whom we should most wish to hear — those who are informed about our nation's nuclear policies but are outside the Governmental and professional structure which sets those policies — is enormous...
...But it is a fundamental principle of First Amendment law that courts are not supposed to weigh the content, value, propriety, or manner in which an idea or proposition is expressed...
...Once an exception has been recognized, all the Government has to do is to allege that a certain contemplated publication falls within the exception...
...It is achieved by a stroke of the pen...
...Stone's Weekly discontinued publication in 1971, its principal contributor, I.F...
...There have been published reports that the Executive branch has manipulated the secrecy system, keeping matters secret if it suits the policy of the time and later releasing the same information to the public in order to marshal public opinion for a change in policy...
...Fears of the unknown can give rise to an almost irresistible impulse to hold on to the present and to avoid the future...
...A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know...
...And they must do so informed by our historic conviction that censorship does not well serve either the interests of free expression or those of national security...
...In short, A mici see in the position of the Government and the decision of the district court not merely a single instance of censorship but an unmistakable portent that such censorship will recur with greater frequency in the future, at a substantial cost to fundamental freedoms guaranteed by the First Amendment...
...This is also an extraordinary case because the Government has grounded its request for that censorship on a statutory scheme which has never been construed or applied to accomplish such censorship, and which is so broad in its coverage as to be blatantly unconstitutional...
...As Justice [William 0.1 Douglas has observed...
...It involves an examination of the material by Government officials, an order to withhold publication, and a Governmental decision as to whether the material may be published or not...
...Footnotes and legal citations have been omitted...
...Calculated risks of abuse are taken in order to preserve higher values...
...Morland was making an important public policy statement that (1) our whole secrecy system of national security is based on a myth and must be defused...
...But any such analysis is a perilous one...
...A hopelessly vague statute From the brief prepared by attorneys Floyd Abrams and Dean Ringel of Cahill Gordon & Reindel in behalf of The New York Times, the American Society of Newspaper Editors, the Association of American Publishers, the National Association of Broadcasters, the Association of American University Presses, and The Boston Globe: The sections of the [Atomic Energy] Act relied upon, as interpreted by the Government and the court below, are over-broad and vague...
...The myth of secrecy From the brief prepared by attorneys Leon Friedman, Catherine Tinker, and Irwin Karp in behalf of the Committee for Public Justice, the PEN American Center, and the Authors League of America: The court below stated that it "can find no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on informed debate" on the issue of nuclear proliferation...
...They need to be seen in a broader and more rational context, as viewed by responsible people concerned with the best interests of this nation and the rest of the world...
...Further, A mici find equally disquieting the limitations on First Amendment rights resulting from the conclusion reached by the district court...
...On some occasions the public need for information is immediate, and to withhold it is to effectively frustrate the process of selfgovernment...
...However, based on their review and understanding of the showing made by the Government in this case, all of these Amici can state that they would not refuse to publish or disseminate that article for the reasons propounded by the Government in support of its desired censorship...
...In any event it would appear plain that the sort of information conveyed by the article is essential for public decision-making...
...And the dynamics of the process inevitably press toward an excess of suppression____ The mere willingness of the judiciary to entertain Government requests for injunctive relief against speech has built into it the dysfunction of delay...
...Security also lies in the value of our free institutions...
...The article raises crucial questions with respect to the functioning of a security system in a democratic society...
...The effect on the right of the public to know could be equally devastating...
...It contrasts the effect of'' [a] mistake in ruling against the United States [which] could pave the way for thermonuclear annihilation for us all...
...The case does not involve the theft or purloining of information in the possession of the Government...
...Such a definition is hopelessly vague...
...It is most doubtful that, had the Court ruled the other way, the Pentagon Papers would have remained secret...
...Although there is well-nigh universal agreement that a system of prior restraint imposes a disastrous and unacceptable barrier to freedom of expression, there has been disagreement over whether any exceptions should be made to the rule against prior restraint and, if so, what ones...
...2) it is necessary to counteract the mystique of recondite technical knowledge justifying decision by experts separated from the people by a wall of secrecy...
...There is another reason why the information contained in the Morland article is vital to public decision-making and has not been delegated to the exclusive use of the military...
...In the future the Government can leave comment upon such matters to the public forum...
...And this standard applies not only to classified information possessed by the Government, but to all information discovered by any citizen and "classified at birth...
...All of Amici share a profound and unwavering commitment to the precious freedoms of speech and of the press that are guaranteed by the First Amendment to the United States Constitution...
...The application of the Atomic Energy Act in the fashion involved here has the potential to sweep within it and render potentially criminal the words of any critic, in academe or elsewhere, who, without access to classified information, happens upon — or creates — a bit of information which some Government official believes harmful to the national interest...
...The implications of such a position are enormously disturbing...
...It involves the claims of the Government's security apparatus to decide what information shall be made available to the public, and the counterclaims of a reputable segment of the scientific community who believe that there is no significant secret about the basic design or operation of the hydrogen bomb...
...First, and most important, the rule against prior restraint is inherently incapable of accommodating exceptions...
...that the basic design is known or readily deduced...
...The menace of prior restraint From the brief prepared by Thomas I. Emerson, professor emeritus of law at Yale University, and Lee Bollinger, professor of law at Michigan Law School, in behalf of Scientific American magazine: There has been a tendency to present this case as if the sole issue was whether or not this country should run the risk of a nuclear holocaust by allowing public dissemination of the secret of making a hydrogen bomb...
...But it also seems clear that the information relates to the broadest aspects of the construction and functioning of that weapon, not to the details of its manufacture...
...This "disparity of risk" is explicitly relied upon by the court as a basis for its decision...
...The court denigrated the notion that the people should know the technical details of the bomb...
...The solutions to all of the pressing problems of this technological society depend upon access to information...
...The power of the Government to pick and choose among those who write about issues of atomic energy, subjecting them to prosecution on the basis of their failure to comply with an unascertainable standard, is precisely the evil the vagueness doctrine seeks to avoid...
...It is our contention (1) that no exceptions to the doctrine of prior restraint should be permitted...
...As a result, if the district court's decision is not reversed, many, if not most, publishers like Amici will be forced to think long and hard before publishing such material, and, in many instances, it seems inevitable that they will be forced to decide that they simply cannot afford the potential price of such publication...
...If the Government's interpretation is to be accepted, it means that any information whatever about atomic weapons or special nuclear material, whatever its origin, is classified — and that its disclosure provides a basis for criminal sanctions — unless and until the Government sanctions it...
...This process is itself a system of prior restraint...
...Much of this information involves knowledge that could affect our national security____ It is true that the Morland article deals with the design and operation of a military weapon...
...If the exception is not wide-open from the beginning it quickly becomes so as Government officials and lower courts continue to invoke it...
...It is ironic beyond measure that an important challenge to the secrecy system is itself repressed by a prior restraint protecting the very system being criticized...
...The Chief Justice's observations as to the "risks" accepted by the framers in adopting the Bill of Rights point up another and perhaps even more fundamental flaw in the district court's analysis...
...There are few publishers indeed, including A mici, who can easily afford to defend against an injunction action such as this one, or a criminal prosecution after publication, should the Government decide that a particular article on those subjects happened to violate the sweeping provisions of that statutory scheme...
...It does not relate to any right the Government may have to punish persons, by criminal prosecution or otherwise, after the communication has been made...
...He has taken an unconventional and shocking way to express his point...
...How is an individual to receive "fair notice" that his conduct will violate the criminal laws...
...By exposing the myth of secrecy (by showing that the "secret" of the bomb is not a secret), Morland may shock the people into challenging other assumptions about the classification system, secret decision-making by technical experts, and the control of information by the Executive Department...
...By the time the Pentagon Papers case had reached the Supreme Court for adjudication, other newspapers in the country were already publishing the materials...
...Is he obliged to inquire of the Government each time he wishes to comment on matters affecting nuclear policy whether his insight has been declassified...
...If Mr...
...As formulated in the Findings of Fact and Conclusions of Law, the test is whether the material "will result in direct, immediate and irreparable damage to the United States...
...As already noted, the court is called upon to make a highly speculative judgment about future and uncertain events...
...And it does not even involve materials that the Government has classified...
...This is true because of the way an exception to the rule operates in practical administration...
...It is taking the position that a citizen, who has through lawful means discovered something that the Government also happens to know, be stopped from speaking...
...It would be inconceivable for the Government to prohibit a Senator or Representative from speaking on the subject of The Progressive article, and so should it be with respect to a citizen...
...It does not need to invoke a device which violates a central purpose, historically and currently, of the First Amendment...
...Sooner or latre, any test which provides less than blanket protection...
...Obviously, none of Amici has seen or read the particular article that is the subject of this unprecedented attempt at Government censorship...
...Undeterred by its failure to secure its desired censorship in that case, the Government has thus far succeeded in this one...
...was an open question, subject to public speculation and discussion...
...2) that the damage test accepted by the court below is especially restrictive of expression...
...And the lower court repeatedly states that the only revelations in the article were "concepts...
...The process frequently, as here, takes place in secrecy and is not open to public scrutiny...
...In addition there are moral, political, and economic questions to be answered...
...But that is not the point of the article...
...All the reasons given above for not tolerating prior restraint also lead to the conclusion that no exceptions should be made to the basic rule...
...In defense of the First Amendment Excerpts from friend-of-the court briefs in The Progressive's prior restraint case Editor's Note: On March 26,1979, Federal District Judge Robert W. Warren issued, at the Government's request, a preliminary injunction barring publication in The Progressive of an article entitled "The H-Bomb Secret: How We Got It, Why We're Telling It," by free-lance writer Howard Morland...
...The formula which defines the exception proposed for this case could thus be used as a basis for Governmental supervision of vast areas of the scientific community and Government control over much scientific activity...
...Moreover, to the extent that that statutory scheme includes severe criminal penalties, and to the extent that the district court has uncritically upheld and applied those provisions, that court's decision will inevitably give rise to a widespread system of selfFriend of freedom This Amicus Curiae brief contained the following footnote: "Although Amicus I.F...
...All this has special meaning for the area of scientific research, the subject of this case...
...The flaws inherent in using such a definition as the basis of an actual or potential criminal violation...
...It leaves that person with the sole option of complying with the censor's demand or being found in violation of the law...
...The article is entitled to full First Amendment protection in every respect...
...Louis Journalism Review, The Black Scholar, Rolling Stone, Editor & Publisher, The Witness, Sojourners, The Texas Observer, American Lawyer, Cleveland Magazine, Seven Days, Transaction, I.F...
...and (4) that the decisions of the Supreme Court, while not accepting this position as a matter of theory, have not deviated from it in practice...
...It is the free flow of information so that the public will be informed about the Government and its actions...
...Some of Amici actually publish such articles and books, while others are involved in the distribution and sale of those publications to the public...
...It seemed to suggest that there was no First Amendment interest in favor of publication...
...So also the current debate over whether to start production of the so-called neutron bomb turns on such factors...
...At bottom, A mici believe that, at best, the Government's motivation for bringing this action was its desire to advance its policies in the area of nuclear weaponry, and not to prevent a perceived harm to this nation____ This is an extraordinary case in many respects...
...2) the production of special nuclear material...
...Indeed, the reaction of the lower court comes close to supporting the position of those members of the scientific community who assert that there is no significant secret about the concept of the hydrogen bomb...
...Furthermore, it should be reiterated that the information which the Government seeks to suppress is available to anyone who goes out to look for it...
...The entire system is so antithetical to the premises on which our Government was founded and can be so manipulated to mold public opinion as the Government chooses that judicial protection of the secrecy apparatus in a prior restraint case must be subject to the closest possible scrutiny...
...Not only do prior restraints place serious impositions on the system of expression, but they are almost invariably unnecessary...
...Presumably one can and surely many have...
...Whether his method is a good idea or a bad idea is irrelevant...
...Thus no one is entitled to know what the case is really about unless he or she obtains security clearance, a privilege conferred by one of the parties to the case...
...In addition, Amici are profoundly disturbed by the diminution of, and disregard for, First Amendment values that permeate the position of the Government in this action...
...In its decision granting the unprecedented — and, we believe, wholly unconstitutional — injunction in this case, the district court implied that "the press" did not support The Progressive's resistance to the Government's demand for censorship, and the Court seemed to rely on that perception in ruling as it did...
...Furthermore, the court believes that the defendants' position in favor of nuclear non-proliferation would be harmed, not aided, by the publication of this article...
...To focus on the danger of a mistake is to assure that the asserted national security interest must prevail in virtually all cases because of the greater weight the court assigns — by hypothesis — to such interest, whether or not that interest has been shown to be present...
...Ideas and information that otherwise would have seen the light of day now become entangled in the judicial process, which may take weeks or even months to sort everything out...
...or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title...
...One purpose of this brief is to demonstrate to this court that numerous and diverse segments of "the press," and in particular the independent periodical press, do indeed support The Progressive in this case and are deeply distressed by the censorship imposed by the district court...
...It forces upon the person desiring to communicate the burden of justification...
...At a time of increasing concentration within the publishing community, it seems particularly important that independent editorial voices such as Amici not be chilled in the exercise of their precious First Amendment rights by such concerns...
...In the latter event, the Court continued, "our right to life is extinguished and the right to publish becomes moot...
...Few doctrines in any field of law can boast of such an extraordinary record of adherence and success____The fact that every shade of judicial philosophy has accepted the doctrine, and that the Government has rarely sought to make exceptions to it, bespeaks a national commitment to a legal principle that serves a vital function in maintaining our system of freedom of expression____ The principal objections to the use of advance censorship, or prior restraint, are well known...
...that the only effective restraint upon production by other countries is the massive effort needed to manufacture the weapon...
...A hearing is held and the court decides whether the matter falls within the exception...
...To the extent that Government officials, or more specifically military officials, can control the dissemination of information on grounds of secrecy, to that extent they alone are enabled to make critical decisions for the whole nation...
...In sum, given all the costs of injunctive proceedings against prospective speech, and the slight and uncertain benefits to be gained by such proceedings, it is not surprising that our history has chosen to rely on other methods of legal enforcement against communications held to be subject to Government control...
...And it deals with the most effective legal device for restricting freedom of expression, namely advance censorship or prior restraint...
...are evident...
...There is little in this procedure to recommend it in a democratic society...
...Yet much of the information and many of the ideas exchanged by scientists — in physics, chemistry, biology, perhaps even in psychology or sociology — could be alleged to be of a character that might result in "direct, immediate and irreparable damage...
...In every instance, publishers will feel the censorious chill created by the mere possibility that drastic Government action could follow whenever they published such material...
...A prior restraint, which cuts off communication in advance, is the most effective in its results, and the easiest to apply, of any method ever invented by Government to control expression...
...In this case there has been no attempt by the Government at political suppression...
...There has been no attempt to stifle criticism...
...Whatever the accuracy of the court's assessment of the wisdom of The Progressive's decision or of the public's "need to know" the information in question, one thing is clear: these are not factors upon which the court may base a decision to issue a prior restraint...
...That editors — newspapers or broadcast — can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided...
...But, consistent with the needs of a free and democratic society, they must do so limited by rules requiring proof of fact, not speculation, of sure, direct, immediate and irreparable injury...
...The court then issues a restraining order so as to allow the Government to present its case...
...But the consequence of mistake cannot lessen the burden on the Government to demonstrate with the requisite certainty that immediate and direct damage to the nation or its people is at stake...
...is no longer "restricted data...
...Democratic administrations, the Nixon Administration's extreme and unwarranted prediction of harm from publication is surely good evidence of the likelihood of Government exaggeration on these matters...
...The threatened violation of the Act which is required to trigger [its] injunctive provision...
...Stone, continues to publish the same kind of reportage and commentary that distinguished that publication and has requested that the Weekly be included among the Amici periodicals submitting this brief...
...Court of Appeals for the Seventh Circuit, which has scheduled arguments for September 10...
...Thus, the court emphasized that it "can find no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on an informed debate on this issue...
...In fact, it is now clear that the editors of The Progressive were made aware of the existence of the criminal sanctions contained in those statutes before they finally decided to publish the article in question, and that it was their genuine concern about the potential invocation of those criminal provisions that led, in part, to their submitting the article to the Government in the first place...
...Indeed, prior to its action in the Pentagon Papers case, the Government had never even sought to enjoin a publication from publishing newsworthy material in its possession...
...The very question of whether there is a "secret" of the hydrogen bomb which other countries have not discovered, and which limits the prospect of other countries possessing the bomb, is a matter of great public import...
...requires the communication, transmission or disclosure of "Restricted Data...
...There are, however, additional and more specific reasons for not making exceptions to the rule...
...The methods of science are based upon open interchange of ideas and information, open discussion of results obtained, and putting together bits and pieces of available knowledge in order to produce a new concept...
...A Federal judge is not supposed to act as an editor...
...Stone's Weekly, the American Booksellers Association, and the Council for Periodical Distributors Associations: Each of these Amici is directly involved in the publication and dissemination to the public of articles and books concerning current public issues, including the issues of nuclear weapons and nuclear energy...
...The fact is that public issues are frequently defined by the timing of the event itself...
...3) in the long run the only way of halting or reversing the arms race and strengthening the rule of law is to provide the people with all the information necessary for them to decide important policy questions on the nuclear arms race...
...Most significantly, it is extraordinary because for the first time in the history of this country the United States Government has succeeded, in peacetime, in censoring for an indefinite period the publication of an article about an important and controversial public issue...
...The issues are not that simple...
...The Government's theory strikes at the very heart of our historic belief in the values of independent research and thinking...
...As Chief Justice [Warren] Burger said in Columbia Broadcasting System, Inc., v. Democratic National Committee, "For better or worse, editing is what editors are for...
...secrecy creates a monopoly of knowledge and thereby a monopoly of power...
...Fundamentally the issues at stake are the freedom of scientific inquiry, the right of the citizen to obtain information necessary for determining public policy, and the role of the courts in maintaining a vigorous system of freedom of expression____ The rule against prior restraint is certainly one of the most remarkable legal principles in our jurisprudence...
...The lesson of the Pentagon Papers case was surely that the Government can be expected to indulge in substantial hyperbole when it comes to assessing the likely harm of a free press to our national security...
...There seems little doubt that similar self-censorship will inevitably follow — and increase — as a result of the district court's upholding of those provisions...
...The Government has other methods for controlling unprotected communications and enormous resources for making them effective...
...will he twisted and relaxed so as to provide virtually no protection at all...
...If this standard were ever accepted, it could be used to stifle freedom of scientific inquiry in the United States...
...the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility — and civility — on the part of those who exercise the guaranteed freedoms of expression...
...Rather, Mr...
...Even clearly protected speech can be forced to wait on the back burner by this process...
...Given the fact that the Pentagon Papers were an historical document, concerned with the actions of prior...
...The presence of these risks is nothing new...
...No Federal court has the power to second-guess the manner in which he has proceeded____ In the "nuclear missile age" we have accepted as a commonplace that the Executive Department may mark certain information off-limits, that neither Congress nor the Judicial branch nor the people may know certain things, and that we must rely on the Executive to make decisions in secret that may affect our right to live...
...Morland believes that an effective way to express his ideas about our secrecy system is to show that the system is excessive and doesn't work properly in any event, it is not the function of the courts to tell him to express his idea in some other way...
...Again, the very nature of the Government's claim requires secrecy in its assertion and proof...
...The Bay of Pigs may have been such an instance where a disastrous policy could have been averted by the immediate dissemination of information...
...The scope of the exception is thus determined by the government's claim and the exception has swallowed up the rule...
...It is now part of the system of freedom of expression and entitled to full protection...
...A journalist's idle musings about the nature or use of nuclear weapons or the operation and development of nuclear power facilities — for the crime is not limited to information about nuclear weaponry — thus fits the category...
...As the event passes into history, public attention usually shifts to some other issue, and information about a prior event months ago becomes in a very real sense yesterday's news...
...In support of The Progressive's appeal against Judge Warren's unprecedented ruling — the first prior restraint of publication on "national security" grounds in the nation's history — a number of publications and organizations have submitted Amicus Curiae (friend of the court) briefs, four of which are excerpted on these pages...
...censorship whenever the publication of any material on the subject of nuclear weapons or nuclear energy is considered...
...It can be applied to a vast area of expression with a minimum of manpower, It does not require any originality or imagination, and is usually administered by bureaucrats possessed of limited vision...
...For full background, see the special May issue of The Progressive...
...Furthermore, if we are to preserve the reality as well as the belief in the idea that the citizens are the ultimate self-governors, then it is inconsistent and self-destructive for the Government to claim that it can prohibit any citizen from sharing his thoughts and conclusions, all lawfully reached...
...Speech delayed is tantamount to information denied...
...Restricted Data" is in turn defined in section 2014 (y) in the following terms: " (y) The term 'Restricted Data' means all data concerning (1) design, manufacture, or utilization of atomic weapons...
...Moreover, in the national security area much of the proceeding — certainly the critical parts — takes place in camera...
...In every case in which national security is asserted as a basis for a prior restraint, the consequences of mistakenly denying the restraint may, by definition, be grave...
...The literal interpretation of the statute gives rise to such absurd result as to be unthinkable — except that the Government has explicitly urged such an interpretation of the statute and that the court below has apparently adopted it...
...The Government here is engaged in the highly dubious and improbable task of attempting to stop the march of time...
...Thus the mystique of a security system can be utilized to deprive Congress and the public of their rightful authority to determine important public policies...
...That is not to suggest that the Government was then, or is generally, disingenuous...
...Issues pertaining to the number, use, deployment, and limitations of nuclear weapons depend upon such knowledge...
...Even if one were to assume that the information in the article was once in the military sector, it is no longer there...
...But, surely it is one of the most foolish of enterprises to attempt to stifle the spread of knowledge in order to forestall an unwanted future...
...The case is concerned with the publication of information available to any citizen and in that sense already in the public domain...
...Second, even if one could solve this dilemma, the nature of public expression is such that it is exceedingly difficult, if not impossible, to formulate an exception that embodies any definite stopping point...
Vol. 43 • July 1979 • No. 7
