U.S. v. The Progressive: 1979

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U.S. v. The Progressive: 1979

Plaintiff: The United States
Defendant: The Progressive, Inc.
Plaintiff Claims: That The Progressive magazine should be prevented from publishing an article concerning how to build a hydrogen bomb
Chief Defense Lawyer: Earl Munson, Jr.
Chief Lawyers for Plaintiff: Thomas S. Martin and Frank M. Tuerkheimer
Judge: Robert W. Warren
Place: Milwaukee, Wisconsin
Date of Hearing: March 26, 1979
Decision: Injunction forbidding The Progressive from publishing the article

SIGNIFICANCE: The court's injunction, constituting prior restraint on publication, was the first of its kind in American history.

En 1909, Robert LaFollette, the famous Progressive leader from Wisconsin, founded a monthly news magazine in Madison, Wisconsin called The Progressive. The Progressive movement enjoyed some success as a third-party movement in American politics into the 1920s, and the magazine enjoyed a wide circulation. After LaFollette's 1924 bid for the presidency, which won 16% of the popular vote, third parties such as the Progressives largely disappeared as a force in American politics until the 1992 campaign of H. Ross Perot. Today, the magazine has a small but loyal audience of approximately 50,000 subscribers.

In 1978, the magazine commissioned freelance writer Howard Morland to write an article concerning government secrecy in the area of energy and nuclear weapons. Energy and nuclear issues were Morland's specialty, and after months of extensive background research Morland wrote "The H-Bomb Secret: How We Got It, Why We're Telling It." On February 27, 1979, Samuel H. Day, Jr., the magazine's managing editor, sent a copy of Morland's draft to the Department of Energy's offices in Germantown, Maryland. Day asked the DOE to verify the technical accuracy of Morland's draft before the magazine published it.

John A. Griffin, DOE's director of classification, and Duane C. Sewell, assistant secretary of energy for defense programs, read the article with alarm. They determined that it contained sensitive material, material that constituted "restricted data" under the Atomic Energy Act. On March 1, 1979, Lynn R. Coleman, DOE's General Counsel, phoned Day and Erwin Knoll, another editor involved in the Morland article. Coleman asked that the magazine not publish the article, stating that in addition to DOE, the State Department and the Arms Control and Disarmament Agency believed publication would damage U.S. efforts to control the worldwide spread of nuclear weapons. The next day, Sewell met with Day, Knoll, and Ronald Carbon, the magazine's publisher.

Despite the government's efforts, on March 7, 1979, the magazine informed Coleman that it would publish the Morland article. The next day, the government sued the magazine in the U.S. District Court for the Western District of Wisconsin, and asked the court to stop publication.

Government Wins Battle, Loses War

The magazine's attorney was Earl Munson, Jr., and the government was represented by Thomas S. Martin and Frank M. Tuerkheimer. On March 9, the day after the suit was filed, Judge Robert W. Warren in Milwaukee, Wisconsin issued a temporary restraining order against the magazine until a preliminary injunction hearing could be held on March 16, 1979. The hearing was delayed for 10 days, however, and took place on March 26, 1979.

At the hearing, Knoll testified that, despite the government's concerns, the article would actually benefit the United States by promoting public debate free of secrecy:

[I am] 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.

Judge Warren was in a bind. Under the First Amendment, the injunction that the government wanted constituted a prior restraint on publication, which is difficult to justify legally because of the principle that the law isn't broken until an illegal act is actually committed, not before. However, the government had presented very strong evidence that the Morland article would contribute to the spread of nuclear know-how. Warren balanced the two considerations, and came down on the government's side:

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.…
[But] 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.

Therefore, Warren signed a preliminary injunction restraining the magazine, its editors, and Morland from "publishing or otherwise communicating, transmitting, or disclosing in any manner any information designated by the Secretary of Energy as Restricted Data contained in the Morland article." The injunction would last until a full trial could be held.

Having won the first litigation battle, the government ultimately lost the legal war. Inspired by the publicity surrounding the case, other publications such as Scientific American began to run articles related to the H-bomb and nuclear power. Neither the Morland article nor any other article, however, contained much more than a general description of how nuclear weapons work and were devoid of the many intricate technical details necessary to design an actual weapon, much less build one. Rather than begin a massive and probably unpopular litigation against the press, the government dropped its proceedings against The Progressive before the trial and the Morland article was published. Nevertheless, Warren's injunction, imposing a prior restraint on the article's publication, was the first of its kind in American history.

—Stephen G. Christianson