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The First Amendment and a free people call weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Brownie group and. With me to today is John Taylor Williams of the prestigious law firm of Hauserman Davis and Shattuck who is rather expert through his own works on First Amendment issues and cases and also on all sorts of ramifications of publishing law and publishing right from both sides of any case. John one of the most interesting cases to come down the pike in a long time is this progressive magazine case progressive is the liberal magazine published in Madison Wisconsin recently was out of the La Follette tradition of liberalism.
They wanted to publish an article entitled The H-bomb secret how we got it why we're telling it written by one Howard mall and a former Air Force pilot who is now a freelance writer. This case has only just been decided by fact and not by law when in September of 1999 although the magazine was constrained from publishing by case it goes back nearly a year and a newspaper in the area published certain elemental facts in the article and the government then threw up its hands as I recall the scenario saying we it's now moot to try to stop progressive or anybody else since the materials been made public. The government's case here was that there were certain materials in this article which were vital to the security of the United States. Why don't I just stop there
John Williams and let you pick up the story from there and pressure between the two of us we can tell the story and then going to the point. Well it's a strange First Amendment story I think. The Progressive is a liberal magazine with a small circulation about 20000 right as you say it goes back to to the progressive movement in Wisconsin in the turn of the century. The it had not made a habit of publishing this kind of material. And I don't think it actually did expect that it was going to run into what it did when it started to publish this. I think what makes this unique is that the case as it was handled by the western district of Wisconsin the United States district court out there resulted in what we call in the First Amendment a prior restraint. Usually we see cases where the government. We're talking about government cases at this point where the government moves to
go after someone for publishing something allegedly lawful. It's after the fact and it's very rare that the government seeks to prohibit the publication before it before it's been disseminated not in this case the magazine as a courtesy or as a procedure sent a copy of the prospective public published article to article to be published to the Department of Energy which then would probably send it to the Justice Department and maybe to the National Security Council or maybe the FBI at any rate they enjoined the publication. It was a national security problem. That's what happened but it certainly shows a Niva Taya the publisher publisher was going to try to get the jump on the government to publish material before the government could move against it would hardly send it for clearance and in this case it wasn't even clearance. They wanted to make sure that the material they were publishing was accurate and what happened here is once the government sought in the Department of Energy their counsel
became upset and consulted with other lawyers and the government took the position informally at first with the progressive publisher that this material contained so-called restricted diet as that was defined under the Atomic Energy Act and restrictive data couldn't be published. The restrictive data just so that everybody's clear on it contains this material which was made available I believe. October the first nineteen hundred and seventy nine and I'm going to quote from the article. This is about the hydrogen bomb itself now before I quote from it. The progressives position was that this was published material and we have subsequent evidence that was available to almost anybody including the Russians and everybody else who went into atomic energy libraries of different parts of the country. This was all been asked for. This was not Ed. The government conceded that everything the progressive article contained was available in the so-called public domain.
It did not it did not come from so they say but the Russians even the Chinese knew and the French knew about it. But other countries would be shortened in their preparation of hydrogen by the time necessary if they knew this which presumably. But I'm not sure that was at issue either on either side. It might well shorten the technological problem solving for a country that was on the search for a nuke to a capacity. But what the author did was to take this material that was available and co-led it and come up with this one particular section that talked about how the atomic fission trigger mechanism worked in a hydra this is this is what he said he said everybody knew this and he used no secret materials and got it the way everybody else did later attorneys for the progressive went to certain after the case was brought against progress he went to certain libraries government libraries comic energy commission library and looked under something equivalent to buy how to make it through the information and showed it to the Journal quote the physical pressure and heat generated by X
and gamma radiation moving outward from the trigger at a speed of light bounces against the weapons in a wall and is reflected with enormous force into the size of a carrot shaped pencil which contains the fission fuel that end quote that is typical of the kinds of paragraphs the government was objecting to. Since this was open information what was the government's case. Well I think this. It is a sensitive and for some people highly emotionally charged area. The proliferation of atomic weapons obviously is of concern to everyone and of course the Atomic Energy Act in this communications of restricted data section certainly has shades of the Rosenbergs in it and that is that the actual intentional transmission of atomic secrets to a foreign power which was the issue in the Rosenberg case you know that act goes back to 1054 but the original act I believe was called the McMahon act goes back to 1945. That's right so it it has its roots in you know in an era
that brought up the Rosenberg trial which was certainly an emotional and trial as we've seen judgment venous ruling still are argued by civil libertarians all over the country but the communication of restricted data section is a serious one in the Atomic Energy Act in it. It says that the communication or transmission of so-called restricted darter with reason to believe that such data will be utilized to injure the United States or to secure an advantage to any foreign nation shall upon conviction be punished by a fine if not more than. $10000 or imprisonment for not more than 10 years. And if it's with the intent to injure as opposed to just the reason to believe but if there's an actual intent to injure the United States then life in prison is positive. How does the word restricted come into play here because the government made certain mistakes in declassifying materials and declassified these materials and making it available to anybody who entered the building as it were in different government libraries.
Can they then have had a right under the law to use the word restricted when they mistakenly they now admit the classified materials. That is I think the thing that makes this case different from the Pentagon case which is one of the cases that the court Pentagon uses Pentagon Papers case the New York Times case in which the government moved against the New York Times to prohibit its publication. This was prior to publication again of the so-called Pentagon Papers. And there the course the court denied prior restraint. That's why this is the first decision that we've seen in which prior restraint has been granted by a federal court in this area the national security area. There are other areas in which prior restraint has has been. The court's taken Coggs of the fact that it would enter prior restraint it has not always been faced with the issue they've talked about under the espionage cases. But in those Again these are cases that the court relied on
in this case the shank case where all of it Wendell Holmes rules that one of the leaders of the then Socialist Party during the First World War could be restrained from sending around a pamphlet which urged people not on constitutional grounds not to honor the draft in the first world war. Now that there wasn't a question of prior restraint there because the circulated material was already out there were in present danger. Well that's where the words came from. Right. We never heard those words until just this mom says. I think there are some kinds of cases in which the government has the right to prohibit publication. And those are where there's a clear and present danger by getting fire in a crowded theater. Well the crowded theater comes in a different case but he does first use that analogy of fire in a theater. In that case it comes up in the subsequent case doesn't it. Well the crowded theater comes in the Chambers case but I think he first brings up that example of there's an example where speech may be suppressed.
JOHN WILLIAMS This case in most of the verbiage that we looked into into the law came up in April of 1970. 9. In regard to the US vs progressive That was the title United States of America vs. the progressive Erwin knoll Samuel de Jr. and Howard Morell and Howard Nolan being the author and the case came in the U.S. District Court for the western district of Wisconsin. I just want to ask you for your views on these two questions which honest people might debate. The court said this quote a mistaken ruling against the progressive will seriously infringe Charis First Amendment rights end quote. And then later on the mistaken ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event our right to life is extinguished and the right to publish becomes moot. End quote.
Do you think however pregnant those two thoughts are that they were germane to the facts of the case here. Me personally no I don't and I don't. But I think that the court has suddenly decided that it's going to play a role in this case that no one ever envision a court playing that it's almost a foreign policy role and it's going to determine what's in the best interests of both national security and the American public to know which neither role is a one honestly the courts Kasten do. The court talks here about a reason to know test which sounds a little talking about national security a little like a test that somebody originated during the Second World War when used to stamp documents about who had a right to see kind of stuff. And they take the position here that there really isn't any reason for the American public to have to know how to make a bomb. I don't I don't see how the court wants to inject itself or should inject itself into that kind of a policy decision.
Well the question in my mind is that this was known material. This is the ambiguity of this case the press by and large came out and editorial support of the progressive with Ed with many exceptions but nevertheless it is known material is just that the court is saying not everyone knows that this is a new test. Do 90 percent of the adversaries of the United States know it. The answer is yes. Do 90 percent of the American people know what the adversaries of the United States or the scientists for the other side know. The answer would be no. Should we enlarge the scope from 10 percent to 100 percent of the American people. The court took the position that that would endanger national security. This kind of a Queen of Hearts Alice in Wonderland flavor. Well it really doesn't. If you look at the The New York Times case the Pentagon case where government documents were actually wrongfully in someone else's possession and then were leaked to
certain delegated newspapers and publishers to be published. And there the courts won't grant a prior restraint because they say most of this material has historical and is of public interest and while it's embarrassing to the United States it doesn't endanger our national security. Now here is material that never belonged to the government in the sense that it had been released by the government perhaps inadvertently or perhaps never with the intention that it could be combined in the fashion this man combined. But it's very little different than perhaps you remember two or three years ago when there was a student at MIT who put together a Titan missile at MIT just by going around to a government surplus hardware dealers who had bought various stuff from the Space Age programs that had been junked. And he put together everything but the nuclear warhead in this missile. Could you give me his name because I have a royal electric typewriter that is not working. I'd like to get him to work on time so that shows you what can be done today the terrorist of course is always
right. You can walk around theoretically with a bomb in a suitcase. And if anybody could threaten the world or threaten the destruction of a city or something like that it's beyond current politics to handle. This was raised by the way by the pope when he visited the United States saying that we must somehow put a stop to this belief that this proliferation is in order. Anyone can inject himself or herself into the process. One person one time and then we would all be in danger because the catastrophe would occur so therefore we must go in the other direction completely. But now we're talking policy and we're talking about the question as to whether or not United States should engage in conduct which will enable the proliferation of weapons to be continued and the course even in that policy is the third world in the non-nuclear powers position that it's kind of I've got mine Jack that the five major powers now have nuclear capacity
and now they're going to shut off the club because they've got it. Well that's a policy argument but what that has to do with the judicial process in the First Amendment when you mix those two you get very bad law and that's what we've we've got here luckily as you say the case is going away because the government with the publication in another smaller. Sort of letter out in Madison Wisconsin in which a scientist out in California wrote a letter to Senator Percy I think it's giving his version of how you made a bomb which was published in this letter and made the publication of the progressive movement because it was just as accurate apparently and again relied on the same public the main source material. So now the government has moved to dismiss it restraining the progressive and the progressive is going to I guess come out in their November issue although they've already released. Right. That particular story given the given the fact that this information was wrongfully perhaps accidentally stupidly released through the
declassification process of the government and made publicly available. The hole that the American people should not know of it when when Kadafi in Libya the dictator of Libya obviously has ways of getting out information known to other countries openly known to other countries and in Pakistan has ways of getting information and the Israelis which who are allegedly the possesses of the A-bomb already have ways of getting information. These This whole business of slapping a bandage over the eyes of the American people seems peculiarly horrendous. Well particularly in the guise of national security because it's an historical fact. Our first hydrogen bomb even as this court points out was exploded twenty six years ago and since then although it took a long time for other countries to gain hydrogen bomb capacity now at least five known countries have it and perhaps others we only imagine have it do have it. But what we're talking about is whether the government come can come in and
restrain the publication of material that was not stolen. And is only restrained will because the government alleges a clear and present danger because they say without any other justification other than the fact that the data once was restricted and if it was still restricted it certainly would have violated the act and that brings us to a different question than this court was faced with and that was where someone takes government secrets or releases them we've had that in the Marchetti case where the CIA agent signs a contract with the agency saying that even after he leaves the agency won't disclose the names of any agents and instead he goes out and signs a contract with Random House or whoever and publishes the names of agents in place all over the world and of course half of them are dead in the morning. That's a whole different set of facts and a whole different set of First Amendment issues it seems to me and in the sense of talking about the grave and rule of reason test that
Frankfurter Brandeis and Holmes and Hughes have addressed in major constitutional Supreme Court review of whether or not prior restraint is even imaginable under the First Amendment and the 14th Amendment. And I think those judges with the exception of Frankfurt who's taken a strange position for him have taken the position that. Prior restraint is permissible only in a very very narrow range of cases probably only involving national security and probably only involving national security in a time of war. And that's extrapolated by the case of the progressives to come up with a peace time dissemination of publicly available facts which are 26 years old as a basis for what is the what is the scariest proposition in the constitutional government censorship. The government seems to be hung up on the dilemma because in the Marchetti case which is clear a former CIA agent giving away names I think that person I think that's
reprehensible. But in regard to Franks who wrote the book decent interval about the last days in Vietnam the government went after him because he had taken a CIA oath to defend secrets he maintained that he defended although secrets never gave one away but he was talking about the political scene that he saw in Vietnam with no secrets involved dollars a lesson to America for its own security reason in the future. They went to court successfully the US government denying him all royalties right. Is there a political restraint. No but is there a PP. They wanted to go for prior restraint but he published the book with his publisher in the greatest possible secrecy and suddenly appeared. Was it is it possible that their government is floundering without a policy on information vital to national security. Well I think what we don't have at least I don't believe we have and I'm not. Has enough of a scholar in this area to tell you that for certain but I don't believe the United States has what
Great Britain has an Official Secrets Act. Now the British the British find this very difficult to live with especially the press. They want constitutional protection somehow in imitation of our constitutional protections. And they have been able to get it so far. We don't know what we have as a National Security Act which classifies course this is not the National Security Act issue in this case is the time and energy act but the approach to classified information is somewhat the same we have a National Security Act and it classifies not only documents but so-called information and that's the most difficult thing information is knowledge which you acquired while in public service and it can be as much as a overheard phone call or looking at a memo that you were supposed to see or having been briefed in a briefing that perhaps is above your security level at any rate you come into contact with another possessor of what's called restricted information and then the act goes on by various executive orders to tell you how you. To use this or not use it. And of course we now are entering the era when every public
official from Kissinger back nobody in their memoirs their memoirs and their course all of them were involved in high level policy seek setting that had to involve not only the documents but certainly information that would be restricted and then the question is. The government is notoriously selective as you're pointing out they haven't restricted Mr Kissinger's profits on his book. No nor should they. Hasn't come out yet but so far the book or I was past books or and whatnot they the government has not to my knowledge acted against the last ambassador to South Vietnam. Who knows what Bunker. No no Mr Martin who was found with. I think I recall certain incriminating documents in the trunk of his car at one point that he took back from Vietnam at the same time they acted against Frank snipped. If if national security depends upon information and deed it does depend upon certain restricted information.
I wonder whether we are not facing incompetence as the worse problem. Government incompetence in maintaining its own standards. Well I think that's certainly at issue and probably when you get into the criminal side the government still is rattling its saber in the progressive case they still have not dropped the other shoe. Well they've said that they were no longer seek prior restraint of the progressive article and therefore the restraining order actually was a Preliminary injunctions been removed in the progress of now free to disseminate the article. They suggested that they still are reviewing whether or not they're going to seek criminal action for violation of the Atomic Energy Act against the other newsletter in Madison Wisconsin that published how to make your home a top campaign trail can they be selective in other words the president of law enforcement frankly is selective in what the progressive was the original intent the progressive follows them up immediately or soon as publication permits with the
same information in a different form in the Moreland article. How can the government then go after one without going after the other. In other words you would have to be the newsletter Plus the Progressive. Well I'm sure that's what the Justice Department is agonizing about at this point. Where do you think they're going to go. Although apparently they were successful in restraining a newsletter out in Berkeley California that was about ready to do the same thing that the Madison press connection. It was the name of the newsletter and in Madison that contained an article. With a restricted daughter. I don't. I don't know where it's going I'm not sure this isn't just a set of bizarre circumstances that have have have brought this to the light I think perhaps in light of the SALT treaty and terrorism as you say there's a great deal more. It was a very exciting series in The New Yorker a year ago. It's just a great deal more focus in with Three Mile Island. Everybody is more and more concerned about the
fact that one the technology isn't being controlled very well by the government. But one of the reasons it isn't being controlled very well and here we're just talking first about peacetime applications is that some of the technology is restricted the data regarding that technology so the press and the public are able to say whether or not for instance we're even doing a decent job of planning security and the proper ways of installing these. Now the government describes this as a between Scylla and cribbed this. They also described this SALT treaty in the same way that we must have it. And yet one wonders whether public knowledge of the dilemma that we're in for example on the SALT treaty restricting the level of both sides of both major sides to virtually the international terror that the level prescribes is not as good as somehow coming to grips with. Going in the other
direction completely and destroying nuclear stocks before the thing gets out of hand. Yet the SALT treaties always referred to as a remarkable step in the right direction. It's like a cripple being helped up to one leg where there is a banana peel so that the moment you leave him off he goes and slips again. And that would be cause a be called a positive step in the right direction. This this progressive article is of less importance than the issue it raises. Would you agree. Yes I would except for the the Harding nature of the fact that we now have a precedent in the United States district court system for issuing a prior restraint and restraining the publication of the press which is a haunting precedent based on bad facts and bad law I think but it's extended the prior restraint doctrine in the reality which we've never really seen before.
I know you have suggested in the few minutes that we have left unlike you to really comment on that again there are certain areas that the courts are not competent to go into. One of them is the policy making area on things like this and yet the court willy nilly a district court they want to put up a mediation effort and all the rest of it so that experts will be called in and then they could listen to the expert to make a decision. BI What does any judge have that we're back to the war this is the all voluntary censorship. They wanted the progressive to submit its article to a board of mediators and then the board of mediators would determine what portion of this crucial portion of the trigger article would be able to be published and what wouldn't be. Censorship whether it's by mediation or by fear it is censorship. Well one must become a censor with great trepidation and with transparent regret. And once you have your transparent redress the grievance against you for having censored as quickly is as possible. JOHN TAYLOR Williams As always it's been a pleasure and I think that you've helped me understand
United States versus progressive much more than I did. Thank you. Thank you for this edition Bernard Ruben. The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Margo Garrison. The program was produced by Greg Fitzgerald. This broadcast has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University which are solely responsible for its content. This is the station program exchange.
Series
The First Amendment
Episode
John Taylor Williams
Producing Organization
WGBH Educational Foundation
Contributing Organization
WGBH (Boston, Massachusetts)
AAPB ID
cpb-aacip/15-805x6qxn
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Series Description
"The First Amendment is a weekly talk show hosted by Dr. Bernard Rubin, the director of the Institute for Democratic Communication at Boston University. Each episode features a conversation that examines civil liberties in the media in the 1970s. "
Created Date
1979-10-31
Genres
Talk Show
Topics
Social Issues
Media type
Sound
Duration
00:29:07
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Credits
Producing Organization: WGBH Educational Foundation
Production Unit: Radio
AAPB Contributor Holdings
WGBH
Identifier: 79-0165-11-19-001 (WGBH Item ID)
Format: 1/4 inch audio tape
Generation: Master
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Citations
Chicago: “The First Amendment; John Taylor Williams,” 1979-10-31, WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed March 19, 2024, http://americanarchive.org/catalog/cpb-aacip-15-805x6qxn.
MLA: “The First Amendment; John Taylor Williams.” 1979-10-31. WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. March 19, 2024. <http://americanarchive.org/catalog/cpb-aacip-15-805x6qxn>.
APA: The First Amendment; John Taylor Williams. Boston, MA: WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-15-805x6qxn