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After 25 years: The Progressive:
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Twenty-five years after David faced Goliath and a federal judge cited national security to block a startling magazine article about nuclear weapons, the War on Terrorism has supplanted the Cold War.
But the chill of prior restraint—censorship—remains a troubling threat to the First Amendment. The 1979 court battle—largely forgotten except by media scholars and lawyers—could prove a dangerous precedent under current political conditions as the Justice Department continues efforts to suppress embarrassing disclosures of Bush administration activities.
Pro-secrecy language and reasoning of a judge’s decision—which no federal appeals court or the U.S. Supreme Court has repudiated—“applies today as far as the national security component and concern,” says Paul K. McMasters, the First Amendment ombudsman at Freedom Forum’s First Amendment Center. “Right now, I think prior restraint is a real danger, and I would argue a reality in an era when we have just fought two different wars in rapid succession and are in the midst of a War on Terrorism that has no boundaries and no time limit.”
Investigating the Nuclear Establishment
Let’s turn back the clock to the time when anti-nuclear activist Howard Morland agreed to write an article for The Progressive—the left-leaning magazine that plays the role of David in this First Amendment saga—illustrating how easy it was to find the information necessary to build a hydrogen bomb. Ever since the dramatically visible advent of the nuclear age—August 6, 1945, when the United States dropped an atomic bomb on Hiroshima—an air of paranoia, patriotism and secrecy had defined the American landscape. Cold War consciousness remained pervasive throughout the 1970s, and the latest nuclear threat of that time, the hydrogen bomb, had become “as essential a part of our national identity as the Constitution, and its secrecy as holy as the Ark of the Covenant,” as Morland wrote. The prospect of nuclear war was as psychologically and emotionally stressful a quarter of a century ago as the threat of terrorism would become decades later
In 1978, managing editor Samuel Day met with Morland, who’d assembled an intriguing slide show about nuclear weapons. They agreed that Morland would investigate and write about the nuclear weapons production complex as a “dramatic way of exploding the secrecy mystique,” according to Day.
Despite the obstacles, Morland knocked on the doors of Department of Energy officials, former and current weapons workers, professors and scientists. Armed with a World Book and Encyclopedia Americana, his old college physics textbook and determination, Morland hoped to expose not just the nuclear weapons establishment, but the secret of how the H-bomb worked. His quest to complete a puzzle, the pieces to which were scattered throughout the country and heavily guarded, often dead-ended because of the powerful limitations created by government security clearances. But his pursuit of available avenues of information—public literature, unclassified and declassified information, and scientific principles—helped him build a nearly solid understanding of the bomb’s workings. He traveled to government agencies, nuclear weapons plants, museums and public libraries, learned the language of the nuclear establishment and induced officials to fill in the blanks of his conundrum. Ironically for the government, some of the most helpful sources proved to be publicly available brochures picked up during visits to weapons plants.
“The H-Bomb Secret: How We Got It, Why We’re Telling It,” revealed the exact nature of the Teller-Ulam idea, the most significant secret derived by H-bomb developers. Despite minor technical errors, its publicly unprecedented accuracy and detailed schematics explained a complex topic in relatively clear specifics. It also reflected Morland’s political message: “Secrecy itself contributes to a political climate in which the nuclear establishment can conduct business as usual, protecting and perpetuating the production of these horror weapons.”
Key participants in the writing and editing process disagree on precisely how and why The Progressive let the government—the Goliath of this story—preview the article, but the magazine did reject the government’s request to delete parts.
Courtroom Battle in the Eye of the Cold War Storm
That’s when the Carter administration’s Justice Department sued to prevent publication. It contended that not all Morland’s data was publicly accessible, and it cited sweeping language of the 1954 Atomic Energy Act, under which virtually all information about nuclear weapons and nuclear technology was “born classified.”
The case went to U.S. District Judge Warren, a World War II veteran and Richard Nixon nominee, in The Progressive’s hometown of Madison, Wisconsin. On March 1979, after a hearing but without reading the article, he temporarily restrained the magazine from “publishing or otherwise communicating or disclosing in any manner any restricted data contained in the article.” Warren commented, “I’d like … to think a long hard time before I gave the hydrogen bomb to Idi Amin,” the brutal Ugandan dictator.
Two weeks later, he issued a preliminary injunction, acknowledging a “clash between allegedly vital security interests of the United States and the competing constitutional doctrine against prior restraint in publication,” but holding that national security trumps the First Amendment. His decision acknowledged that prior restraints on the media carry a “heavy presumption” of unconstitutionally, as the Supreme Court had ruled in the 1971 Pentagon Papers case. But First Amendment rights are neither absolute nor boundless, he continued, analogizing publication of technical information about the H-bomb to wartime publication of troop movements. A mistaken ruling against the magazine would “seriously infringe on cherished First Amendment rights” but a mistaken ruling against the government “could pave the way for nuclear annihilation for us all.”
Little did Warren know that, within a few years, Pakistan would not only join the nuclear club but that its top nuclear scientist would be peddling nuclear technology for profit to Libya, North Korea and Iran, apparently with the blessing of higher-ups in the Pakistani government. In fact, Abdul Qadeer Khan had become head of Pakistan’s uranium enrichment program four years before the Progressive case. In the 1980s, he began surreptitiously selling nuclear secrets to other countries. Khan was removed from office in 2001 amid corruption reports but remained an adviser to President Pervez Musharraf until his key role as an agent of nuclear proliferation was publicly disclosed in 2004.
While the Progressive’s appeal was pending, other news organizations published similar material, a development that convinced the Justice Department to drop its suit. The Progressive article appeared in its November 1979 issue.
As a result, the case never reached the U.S. Supreme Court, disappointing Morland and other press freedom advocates, although he acknowledged, “Still, nobody’s real sure whether the Supreme Court would have done a good or bad thing.” The high court could have accepted Warren’s distinction between the historical material involved in the Pentagon Papers case and the up-to-date material discussed in The Progressive article. In the words of Bill Lueders, a biographer of Progressive editor Erwin Knoll, “The Atomic Energy Act of 1954 would remain over the heads of U.S. journalists like the Sword of Damocles—its power being not that it swings, but that it hangs there.”
Terror, Terrorism and Prior Restraint
Although The Progressive was ultimately free to print its article, that freedom came only after a six-month hiatus and hundreds of thousands of dollars in legal expenses. Three years later and still in the depths of the Cold War, journalism professor Bruce Swain of the University of Kentucky wrote that it was difficult to predict the long-term implications of the case for journalists but suggested that they faced an American version of the United Kingdom’s Official Secrets Act. “Nor is the likelihood of the Progressive case being raised as a precedent insubstantial,” Swain wrote.
The threat that Warren’s reasoning poses to the First Amendment remains troubling in today’s atmosphere of an ongoing War against Terrorism. The Freedom Forum’s McMasters observed that the implications of the case “go far beyond the national security domain…. This Justice Department, with the sanction of the White House, of course, would press the war issue to the limit. The mentality is that we are in a war with no ends and a war with no bounds. They translate as national security and the threat of terrorism. It’s not a stretch at all for them to use the war environment to justify or rationalize these things.” He added, “The Official Secrets Act is not dead. (U.S. Attorney General John) Ashcraft laid down some really heavy hints that there are ways of going against leakers under present statutes and conditions but did not rule out a new law.”
Just as Warren evoked the specter of a nuclear-armed Idi Amin to rationalize censorship, contemporary politicians and government officials evoked the demons of Saddam Hussein and Osama bin Laden armed with weapons of mass destruction.
Today’s post-September 11 atmosphere is marked by embarrassing but eminently newsworthy questions including secret intelligence about al-Qaida and other terrorist groups, Iraq’s purported biological and nuclear weapons and U.S. military capabilities to combat terrorism.
The Sword of Damocles that Lueders referred to is no longer that of the Atomic Energy Act. Instead, it’s wrapped in the form of the USA PATRIOT Act. Whether those concerns will provoke government efforts at prior restraints against publication of “secrets” is still unknown, and most provisions of the USA PATRIOT Act don’t directly restrain the press. But the Bush administration has restricted the flow of information and access to governmental proceedings to the press and public. And First Amendment experts warn that The Progressive case could prove a dangerous precedent under current political conditions.
Researchers have found that fear of terrorism carries widespread psychological, behavioral and emotional implications for the public at large, much as fear of nuclear holocaust did during the Cold War. For example, psychologists and public health experts now talk of “terror management theory” and have added a “terrorism module” into their Behavioral Risk Factor Surveillance System. Given those conditions, it’s easy to envision the government pointing not only to September 11 events but to subsequent violence in Spain, Bali, Iraq, Afghanistan and elsewhere to argue that potential large-scale terrorist attacks pose risks as serious as a nuclear attack.
Equally significant, First Amendment Center scholar Ronald K. L. Collins questions the media’s willingness to stand up to pressure, saying, “The government has shown that it is much more apt to go after fringe or not-very-well-funded journalistic operators rather than mainstream media.” Magazines like The Progressive are less able to afford to defend themselves and the First Amendment. Its legal costs reached $240,000—40 percent of its annual operating budget—plus thousands of staff hours helping defense lawyers, traveling, raising funds and answering press queries, all while publishing the magazine. As the magazine learned, defending the First Amendment can be expensive indeed.
Lucy Daglish, executive director of the Reporters Committee on Freedom of the Press, foresees two situations in which the government could seek a prior restraint against the press, one involving publication of information about intelligence “sources and methods” and the other if a news organization attempts to report that the FBI had executed a secret order for business records during a foreign intelligence and international terrorism investigation. Of the first situation, she said, “The only time I think they would actually be successful if they were able to go to court and demonstrate you were about to publish something about sources and methods—sources of intelligence around the world and methods of gathering intelligence.” She added, however, “I don’t think the Justice Department is going to try it because I don’t think anybody in the media is going to abide by it.” The second situation would arise under Section 215(d) of the USA PATRIOT ACT, which states, “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”
Daglish’s observation can be analyzed as a reflection of Warren’s dual-track reasoning in The Progressive. On one track, the government has a statute to rely on—the Atomic Energy Act in 1979, the USA PATRIOT Act today. On the other track, the government could rely on the broad “national security” concept as justification for seeking a prior restraint.
Looking back 25 years, Collins said of The Progressive: “I can think of no case that’s more important…. I would bet a dime to a donut it may well be very much an unplayed card by the Justice Department right now. It seems here that what the District Court (judge) did would be very appealing to Ashcroft and his colleagues.”
Pulitzer Prize-winner Eric Freedman teaches media law and public affairs reporting at the Michigan State University School of Journalism, where Ann-Marie Murphy recently earned her master’s degree.
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