USA v Progressive 1979 excerpt

In 1979, an in­ter­est­ing judg­ment was made re­gard­ing the pub­li­ca­tion of an alleged nu­clear in­fo­haz­ard. Here is an ex­cerpt from that pre­limi­nary in­junc­tion rul­ing, which was au­thored by Robert W. War­ren, then a Wis­con­sin Eastern District judge.

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“The Sec­re­tary of State states that pub­li­ca­tion will in­crease ther­monu­clear pro­lifer­a­tion and that this would “ir­reparably im­pair the na­tional se­cu­rity of the United States.” The Sec­re­tary of Defense says that dis­sem­i­na­tion of the Mor­land pa­per will mean a sub­stan­tial in­crease in the risk of ther­monu­clear pro­lifer­a­tion and lead to use or threats that would “ad­versely af­fect the na­tional se­cu­rity of the United States.”

Howard Mor­land as­serts that “if the in­for­ma­tion in my ar­ti­cle were not in the pub­lic do­main, it should be put there . . . so that or­di­nary cit­i­zens may have in­formed opinions about nu­clear weapons.”

Er­win Knoll, the ed­i­tor of The Pro­gres­sive, states he is “to­tally con­vinced that pub­li­ca­tion of the ar­ti­cle will be of sub­stan­tial benefit to the United States be­cause it will demon­strate that this coun­try’s se­cu­rity does not lie in an op­pres­sive and in­effec­tive sys­tem of se­crecy and clas­sifi­ca­tion but in open, hon­est, and in­formed pub­lic de­bate about is­sues which the peo­ple must de­cide.”

The Court is faced with the difficult task of weigh­ing and re­solv­ing these di­ver­gent views.

A mis­take in rul­ing against The Pro­gres­sive will se­ri­ously in­fringe cher­ished First Amend­ment rights. If a pre­limi­nary in­junc­tion is is­sued, it will con­sti­tute the first in­stance of prior re­straint against a pub­li­ca­tion in this fash­ion in the his­tory of this coun­try, to this Court’s knowl­edge. Such no­to­ri­ety is not to be sought. It will cur­tail defen­dants’ First Amend­ment rights in a dras­tic and sub­stan­tial fash­ion. It will in­fringe upon our right to know and to be in­formed as well.

A mis­take in 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.

In the Near case, the Supreme Court rec­og­nized that pub­li­ca­tion of troop move­ments in time of war would threaten na­tional se­cu­rity and could there­fore be re­strained. Times have changed sig­nifi­cantly since 1931 when Near was de­cided. Now war by foot sol­diers has been re­placed in large part by war by ma­chines and bombs. No longer need there be any ad­vance warn­ing or any prepa­ra­tion time be­fore a nu­clear war could be com­menced.

In light of these fac­tors, this Court con­cludes that pub­li­ca­tion of the tech­ni­cal in­for­ma­tion on the hy­dro­gen bomb con­tained in the ar­ti­cle is analo­gous to pub­li­ca­tion of troop move­ments or lo­ca­tions in time of war and falls within the ex­tremely nar­row ex­cep­tion to the rule against prior re­straint.

Be­cause of this “dis­par­ity of risk,” be­cause the gov­ern­ment has met its heavy bur­den of show­ing jus­tifi­ca­tion for the im­po­si­tion of a prior re­straint on pub­li­ca­tion of the ob­jected-to tech­ni­cal por­tions of the Mor­land ar­ti­cle, and be­cause the Court is un­con­vinced that sup­pres­sion of the ob­jected-to tech­ni­cal por­tions of the Mor­land ar­ti­cle would in any plau­si­ble fash­ion im­pede the defen­dants in their laud­able cru­sade to stim­u­late pub­lic knowl­edge of nu­clear ar­ma­ment and bring about en­light­ened de­bate on na­tional policy ques­tions, the Court finds that the ob­jected-to por­tions of the ar­ti­cle fall within the nar­row area rec­og­nized by the Court in Near v. Min­nesota in which a prior re­straint on pub­li­ca­tion is ap­pro­pri­ate.

The gov­ern­ment has met its bur­den un­der sec­tion 2274 of The Atomic En­ergy Act. In the Court’s opinion, it has also met the test enun­ci­ated by two Jus­tices in the New York Times case, namely grave, di­rect, im­me­di­ate and ir­reparable harm to the United States.

The Court has just de­ter­mined that if nec­es­sary it will at this time as­sume the awe­some re­spon­si­bil­ity of is­su­ing a pre­limi­nary in­junc­tion against The Pro­gres­sive’s use of the Mor­land ar­ti­cle in its cur­rent form.”

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The case never got to the Supreme Court be­cause the rele­vant tech­ni­cal de­tails were, in the in­ter­ven­ing time, pub­lished by oth­ers.

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