United States v. Progressive, Inc.
467 F. Supp. 990 (1979)
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Rule of Law:
A prior restraint on publication may be constitutionally permissible under the First Amendment when the government proves that the publication of technical, restricted data would result in direct, immediate, and irreparable harm to national security, particularly when a specific statute like the Atomic Energy Act prohibits such disclosure.
Facts:
- Howard Morland, a freelance writer, authored an article for The Progressive magazine titled, “The H-Bomb Secret: How We Got It, Why We’re Telling It.”
- The article described the design, manufacture, and operation of a hydrogen bomb.
- Prior to publication, the magazine's editors sent a copy of the article to the Department of Energy (DOE) to verify its technical accuracy.
- The DOE determined the article contained 'Restricted Data' as defined by the Atomic Energy Act and that its publication would harm U.S. national security.
- DOE officials informed The Progressive that publishing the article would violate federal law and requested they refrain from doing so, offering to help edit out the classified material.
- The Progressive's counsel informed the DOE that the magazine intended to publish the article unless the government obtained a court order to prevent it.
Procedural Posture:
- The United States of America filed a complaint against The Progressive, Inc., and its editors in the U.S. District Court for the Western District of Wisconsin.
- The original judge disqualified himself, and the case was transferred to the U.S. District Court for the Eastern District of Wisconsin.
- The government sought a temporary restraining order (TRO) to enjoin the defendants from publishing the article.
- After a hearing, the court issued a TRO and scheduled a subsequent hearing to determine if a preliminary injunction should be issued.
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Issue:
Does a preliminary injunction prohibiting a magazine from publishing an article containing technical details on hydrogen bomb construction, as restricted data under the Atomic Energy Act, constitute an unconstitutional prior restraint in violation of the First Amendment?
Opinions:
Majority - Warren, District Judge
No. While there is a heavy presumption against the constitutionality of any prior restraint, the injunction is permissible in this narrow instance. The court distinguished this case from New York Times v. United States, where the published material was historical data and no specific statute was violated. Here, the Atomic Energy Act explicitly prohibits the disclosure of 'Restricted Data,' which the court found the article contained. The court reasoned that the publication of technical information about thermonuclear weapons is analogous to the publication of troop movements in wartime, an exception recognized in Near v. Minnesota. Given the 'disparity of risk'—weighing a temporary infringement on First Amendment rights against the potential for 'thermonuclear annihilation'—the government met its heavy burden of showing that publication would cause grave, direct, immediate, and irreparable harm to the United States by accelerating nuclear proliferation.
Analysis:
This case represents one of the most significant modern instances of a court imposing a prior restraint on publication for national security reasons. It affirmed that the exceptionally high bar for prior restraint set in New York Times Co. v. United States is not absolute, especially when a specific statute (the Atomic Energy Act) governs the information and the potential harm is catastrophic. The court's 'disparity of risk' analysis, which prioritizes the right to life over the right to publish when faced with nuclear annihilation, created a potential framework for future cases involving threats of similar magnitude. Although the case became moot and never received appellate review, it remains a landmark decision in the ongoing tension between First Amendment freedoms and national security.
