United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979)

One proposition the First Amendment stands for is that the government cannot, except in rare circumstances, prevent publication of harmful material; it must turn to after-publication remedies. Yet, in United States v. The Progressive, Inc., a court was confronted with material so explosive that it did issue a prepublication injunction known as a prior restraint.

The subject of the injunction was an article titled ‘‘The H-Bomb Secret How We Got It, Why We’re Telling It’’ that explained the secret to building the hydrogen bomb. The author of the article, Howard Morland, claimed that all the information contained in his article came from the public domain and that he merely gathered that information together. His purpose in writing the article was to pierce the veil of secrecy that had been laid over nuclear weapons, thereby stimulating public debate. In response to arguments that his article was too dangerous to be published, Morland argued that his article did not provide a blueprint for building a hydrogen bomb and that the major barrier to building such a nuclear weapon was in the production phase, not the design phase. Thus, even though his article might arguably advance a non-nuclear nation’s understanding of the physics of the hydrogen bomb, it would not result in immediate nuclear proliferation.

Twice before, the Supreme Court had denied requests for prior restraints. In Near v. Minnesota (1931), the Court struck down a Minnesota law that authorized public officials to force a publisher to prove, before publication, that it was printing defamatory material that was true and with good motives. The opinion rested in part on the key distinction between a prior restraint and subsequent punishment; thus, the Court expressly took no view on whether the publisher could be punished by a defamation lawsuit after having made his scurrilous remarks. The Court did, however, note in passing that ‘‘[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.’’

More recently, during the height of the Vietnam War, the Court in New York Times v. United States (1971) refused to enjoin the Washington Post and the New York Times from publishing excerpts from a secret U.S. government history of the war, despite the government’s claim that publication would cause irreparable damage. Each of the nine justices wrote a separate opinion, but the six in the majority were able to agree on a joint per curiam opinion stating that the government bore ‘‘a heavy burden’’ to show that a prior restraint was necessary and that the government failed to do so in that case.

However, the district court in The Progressive case agreed with the government that Morland’s article was too dangerous to be published. Although the court agreed with Morland that the article was probably not a blueprint, the court was concerned that the article might accelerate other nation’s developments of nuclear weapons. The court also rejected the notion that the public needed to understand the physics of nuclear weapons to debate their desirability.

Finally, the crux of the court’s reasoning came down to weighing of risks: ‘‘A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,’’ but ‘‘[a] mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all.’’ Put in such stark terms, the balance led the court to issue the injunction. However, six months after the district court issued the injunction, while the case was still on appeal, a newspaper published a letter that contained substantially the same content as Morland’s article, and the injunction was mooted. The Progressive subsequently published the article.

Ultimately, The Progressive can be seen as a cautious decision, perhaps overly so, in which a court conducted a form of balancing, by measuring the harm to civil liberties if the injunction were granted against the harm to society from the expected harm from the publication (that is, the likelihood of disaster times the magnitude of that disaster). Unfortunately, this sort of cost–benefit balancing is likely to burden civil liberties, because the value inherent in having robust civil liberties is abstract, whereas the potential harm to be averted (nuclear proliferation in this instance, perhaps terrorism in other instances) is so horrendous that the expected harm is too much to bear, even if the likelihood of the outcome is quite small.

TUNG YIN

References and Further Reading

• Alderman, Ellen, and Caroline Kennedy. In Our Defense: The Bill of Rights in Action. New York: William Morrow & Co., 1991.

Cases and Statutes Cited

• Near v. Minnesota, 283 U.S. 697 (1931)
• New York Times Co. v. United States (‘‘The Pentagon Papers Case’’), 403 U.S. 713 (1971)

See also Absolutism and Free Speech; Freedom of Speech and Press: Nineteenth Century; Freedom of the Press: Modern Period (1917–Present); Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United States, 403 U.S. 713 (1971); Prior Restraints