A New York state judge’s order last month prohibiting The New York Times from publishing memos written by a lawyer for the political spying organization Project Veritas blatantly violates the First Amendment. But not every court case seeking to dictate press publishing decisions is as laughably wrong as this one.
Take, for instance, the case in which publication might have meant the end of mankind. True story.
In 1979, The Progressive, a politically liberal magazine based in Wisconsin that still exists today, planned to publish an article detailing how a hydrogen bomb works. The U.S. government went to court to try to prevent publication. It’s a notable case in the legal history of prior restraint.
Prior restraint refers to government action – a law or a court order, for examples – that blocks publication or broadcast before it happens. The U.S. Supreme Court ruled in 1931 that prior restraint infringes on the First Amendment right of freedom of the press when it struck down a Minnesota law that prohibited publication of “malicious, scandalous or defamatory” information. However, the court left open the possibility that prior restraint could be warranted in cases of obscenity, incitement to riot, or sensitive military details such as number and location of troops.
In the most famous prior restraint case, in 1971, the Supreme Court ruled that the federal government could not stop The New York Times and The Washington Post from printing the so-called Pentagon Papers, a classified government report on U.S. decision making about the Vietnam War prior to 1968. The report, leaked by a former Pentagon contractor and war opponent named Daniel Ellsberg, showed that the government had made deceptive public pronouncements about the war’s progress.
The government argued unsuccessfully that disclosure of the report threatened national security, jeopardized lives of military and intelligence personnel and could be prevented under the exception identified in the 1931 case. The Supreme Court ruled that prior restraint is unconstitutional unless it’s needed to prevent an immediate, inevitable and grave threat to national security. Disclosure of the Pentagon Papers did not pose such a threat, the court ruled.
The Progressive case eight years later was potentially more explosive. (Oh. Sorry. Wince!)
The government argued that the mechanics of the hydrogen bomb was classified information and that disclosure would aid foreign countries that wanted their own H-bombs. It also argued that a court could block the magazine article under the narrow national security exception carved out in previous Supreme Court decisions.
The magazine, with a track record of alarm over nuclear proliferation, countered that such details were essential to public debate about the issue. It also claimed it had obtained all its information from interviews with scientists and publicly available information. And it disputed that a foreign enemy with the resources to build a bomb would learn anything new from a magazine article.
The national media were divided over The Progressive’s intended action. According to an article by Belinda J. Scrimenti in the Ohio State Law Review, the Saturday Review wrote that publication would be “a crime against humanity.”
Because of the established presumption that prior restraint is unconstitutional, the case’s burden of proof fell on the government. Nonetheless, the judge sided with the government and blocked the article. “I want to think a long, hard time before I’d give a hydrogen bomb to (Uganda’s terrorist dictator) Idi Amin,” Judge Robert Warren said.
He also made some mistakes, such as concluding that the story did include classified information unavailable elsewhere and that the story presented “the recipe for a do-it-yourself hydrogen bomb.” Alarmingly, he stated that he saw “no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on an informed debate.” (This is similar to another judge who thinks he’s an editor: The judge in the current Project Veritas case stated that communications between a client and a lawyer “simply cannot be a subject of general interest and of value and concern to the public.”)
The Progressive appealed. During the appeal, the Madison (Wisconsin) Press Connection published a story containing essentially the same information (and showing that it was obtainable in the public domain). According to a 2019 retrospective article in The Progressive, the Press Connection worked overnight to produce a special edition off its normal publication schedule so that the government didn’t have time to try to stop the story.
In the wake of this, the Justice Department dropped its legal fight. The case over whether to mute had become moot. (Oh. Sorry. Grimace!)
After six months of prior restraint, in October 1979, The Progressive published “The H-bomb secret: How we got it and why we’re telling it.” Idi Amin never did drop a hydrogen bomb.
Prior restraint, thankfully, remains extremely difficult for the U.S. government to achieve. But not impossible. Narrow permissible circumstances remain in Supreme Court precedents. And the ruling in The Progressive case, although not very influential because it was merely a state district court judge, remains unreversed.
As judicial appointments and elections in the U.S. become more politicized and the media increasingly get disrespected by politicians and segments of the public, the danger of prior restraint remains. Even if the fate of the human race doesn’t hang in the balance.
Tom Arenberg is an instructor of news media at the University of Alabama. He worked for The Birmingham News and the Alabama Media Group for 30 years. He published this commentary originally as a post on his blog, The Arenblog.
About News is a BirminghamWatch feature that publishes commentary by those who teach the craft and think about the values and performance of today’s journalism, a civic flashpoint. BirminghamWatch is a member of the Institute for Nonprofit News whose members generally rely on individual gifts, foundation grants and sponsorships to support their work. It also publishes About News articles on Facebook and Twitter and invites readers to join the conversation about their news in those forums.