USA v Progressive 1979 excerpt

by RyanCarey2 min read27th Nov 20172 comments

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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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A related matter. http://blog.nuclearsecrecy.com/2016/02/12/solzhenitsyn-smyth-report/

I came across this in Secret Science by Herbert Foerstel. I found it to be very interesting, although it is about 20 years out of date, and it takes on a role of advocating for freeer science, rather than balacing considerations in both directions. Does anyone have newer treatments of this policy area to recommend?