''United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland'', 467
F. Supp.
The ''Federal Supplement'' ( is a case law reporter published by West Publishing in the United States that includes select opinions of the United States district courts since 1932, and is part of the National Reporter System. Although the ''Fed ...
990 (
W.D. Wis. 1979), was a lawsuit brought against ''
The Progressive
''The Progressive'' is a left-leaning American magazine and website covering politics and culture. Founded in 1909 by U.S. senator Robert M. La Follette Sr. and co-edited with his wife Belle Case La Follette, it was originally called ''La Follett ...
'' magazine by the
United States Department of Energy
The United States Department of Energy (DOE) is an executive department of the U.S. federal government that oversees U.S. national energy policy and manages the research and development of nuclear power and nuclear weapons in the United Stat ...
(DOE) in 1979. A temporary
injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
was granted against ''The Progressive'' to prevent the publication of an article written by activist
Howard Morland
Howard Morland (born September 14, 1942) is an American journalist and activist against nuclear weapons who, in 1979, became famous for apparently discovering the "secret" of the hydrogen bomb (the Teller–Ulam design) and publishing it after ...
that purported to reveal the "secret" of the
hydrogen bomb
A thermonuclear weapon, fusion weapon or hydrogen bomb (H bomb) is a second-generation nuclear weapon design. Its greater sophistication affords it vastly greater destructive power than first-generation nuclear bombs, a more compact size, a lowe ...
. Though the information had been compiled from publicly available sources, the DOE claimed that it fell under the "
born secret
"Born secret" and "born classified" are both terms which refer to a policy of information being classified from the moment of its inception, usually regardless of where it was created, and usually in reference to specific laws in the United Stat ...
" clause of the
Atomic Energy Act of 1954
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2021, 2022-2286i, 2296a-2297h-13, is a United States federal law that covers for the development, regulation, and disposal of nuclear materials and facilities in the United States.
It was an ame ...
.
Although the case was filed in the Western District of Wisconsin, the judge there
recused
Judicial disqualification, also referred to as recusal, is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applica ...
himself as a friend of the magazine. The case was therefore brought before Judge
Robert W. Warren
Robert Willis Warren (August 30, 1925 – August 20, 1998) was a United States district judge for the Eastern District of Wisconsin. He had previously served as attorney general of Wisconsin and represented Brown and Calumet Counties in the ...
, a judge in the
Eastern District of Wisconsin. Because of the sensitive nature of information at stake in the trial, two separate hearings were conducted, one in public, and the other ''
in camera
''In camera'' (; Latin: "in a chamber"). is a legal term that means ''in private''. The same meaning is sometimes expressed in the English equivalent: ''in chambers''. Generally, ''in-camera'' describes court cases, parts of it, or process wh ...
''. The defendants, Morland and the editors of ''The Progressive'', would not accept
security clearance
A security clearance is a status granted to individuals allowing them access to classified information (state or organizational secrets) or to restricted areas, after completion of a thorough background check. The term "security clearance" is ...
s, which would put restraints on their free speech, and so were not present at the ''in camera'' hearings. Their lawyers did obtain clearances so that they could participate, but were forbidden from conveying anything they heard there to their clients.
The article was eventually published after the government lawyers dropped their case during the appeals process, calling it moot after other information was independently published. Despite its indecisive conclusion, law students still study the case, which "could have been a law school hypothetical designed to test the limits of the presumption of
unconstitutionality
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
attached to
prior restraint
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship ...
s".
Background
Secrecy and disclosure
The first atomic bombs were developed by the wartime
Manhattan Project
The Manhattan Project was a research and development undertaking during World War II that produced the first nuclear weapons. It was led by the United States with the support of the United Kingdom and Canada. From 1942 to 1946, the project w ...
. This was carried out in secret, lest its discovery induce the
Axis powers
The Axis powers, ; it, Potenze dell'Asse ; ja, 枢軸国 ''Sūjikukoku'', group=nb originally called the Rome–Berlin Axis, was a military coalition that initiated World War II and fought against the Allies. Its principal members were ...
, particularly Germany, to accelerate their own nuclear projects, or undertake covert operations against the project. The military and scientific leaders of the Manhattan Project anticipated a need to release details of their wartime accomplishments, principally as a form of recognition for the participants who had labored in secrecy. Press releases were prepared in advance of the
atomic bombings of Hiroshima and Nagasaki
The United States detonated two atomic bombs over the Japanese cities of Hiroshima and Nagasaki on 6 and 9 August 1945, respectively. The two bombings killed between 129,000 and 226,000 people, most of whom were civilians, and remain the onl ...
, and an official account, known as the
Smyth Report
The Smyth Report (officially ''Atomic Energy for Military Purposes'') is the common name of an administrative history written by American physicist Henry DeWolf Smyth about the Manhattan Project, the Allied effort to develop atomic bombs dur ...
after its author, the physicist
Henry DeWolf Smyth
Henry DeWolf "Harry" Smyth (; May 1, 1898September 11, 1986) was an American physicist, diplomat, and bureaucrat. He played a number of key roles in the early development of Nuclear power, nuclear energy, as a participant in the Manhattan Proj ...
, was commissioned in April 1944 to provide a history of the project for public release. The Director of the Manhattan Project,
Major General
Major general (abbreviated MG, maj. gen. and similar) is a military rank used in many countries. It is derived from the older rank of sergeant major general. The disappearance of the "sergeant" in the title explains the apparent confusion of a ...
Leslie Groves
Lieutenant General Leslie Richard Groves Jr. (17 August 1896 – 13 July 1970) was a United States Army Corps of Engineers officer who oversaw the construction of the Pentagon and directed the Manhattan Project, a top secret research project ...
, his scientific adviser,
Richard Tolman
Richard Chace Tolman (March 4, 1881 – September 5, 1948) was an American mathematical physicist and physical chemist who made many contributions to statistical mechanics. He also made important contributions to theoretical cosmology in ...
, and Smyth agreed that information could be publicly released if it was essential for an understanding of the project, or was already generally known or deducible, or had no significance to the production of atomic bombs. The first copies went on sale on August 12, 1945.
In its October 8, 1945, issue, ''
The New Republic
''The New Republic'' is an American magazine of commentary on politics, contemporary culture, and the arts. Founded in 1914 by several leaders of the progressive movement, it attempted to find a balance between "a liberalism centered in hum ...
'' took the position, emphasized with italics, that "": the knowledge of how to build an atomic bomb had been "the common property of scientists throughout the world for the last five years".
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
Harry S. Truman
Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. A leader of the Democratic Party, he previously served as the 34th vice president from January to April 1945 under Franklin ...
took a similar line in his first speech to Congress on nuclear matters that month, proclaiming that "the essential theoretical knowledge upon which the discovery is based is already widely known." In November 1945, Groves instructed Tolman to draw up a policy for the
declassification
Declassification is the process of ceasing a protective classification, often under the principle of freedom of information. Procedures for declassification vary by country. Papers may be withheld without being classified as secret, and even ...
of the Manhattan Project's documents. Tolman assembled a committee, which took a list of the Manhattan Project's activities and assigned each a classification. Four reviewers assessed the documents and declassified about 500 of them by the end of the year.
Atomic Energy Act
![Atomic Energy Act of 1946 signing](https://upload.wikimedia.org/wikipedia/commons/4/40/Atomic_Energy_Act_of_1946_signing.jpg)
If there was no secret, then there was no reason for security. The scientists, in particular, chafed under the wartime controls, which were not lifted with the surrender of Japan. On September 1, 1945,
Samuel K. Allison
Samuel King Allison (November 13, 1900 – September 15, 1965) was an American physicist, most notable for his role in the Manhattan Project, for which he was awarded the Medal for Merit. He was director of the Metallurgical Laboratory from 1943 ...
used the occasion of the announcement of the founding of the
Institute for Nuclear Studies
__NOTOC__
The Institute for Nuclear Studies was founded September 1945 as part of the University of Chicago with Samuel King Allison as director. On November 20, 1955, it was renamed The Enrico Fermi Institute for Nuclear Studies. The name was sh ...
to call for freedom to research and develop atomic energy. He told the press that if controls were not removed, nuclear scientists might turn to the study of the color of butterfly wings.
Enrico Fermi
Enrico Fermi (; 29 September 1901 – 28 November 1954) was an Italian (later naturalized American) physicist and the creator of the world's first nuclear reactor, the Chicago Pile-1. He has been called the "architect of the nuclear age" and ...
warned that "unless research is free and outside of control, the United States will lose its superiority in scientific pursuit".
The
War Department War Department may refer to:
* War Department (United Kingdom)
* United States Department of War (1789–1947)
See also
* War Office, a former department of the British Government
* Ministry of defence
* Ministry of War
* Ministry of Defence
* Dep ...
envisaged that the Manhattan Project would be superseded by a
statutory authority
A statutory body or statutory authority is a body set up by law (statute) that is authorised to implement certain legislation on behalf of the relevant country or state, sometimes by being Primary and secondary legislation, empowered or deleg ...
. Legislation to create it was drafted by two War Department lawyers,
Kenneth C. Royall
Kenneth Claiborne Royall, Sr. (July 24, 1894May 25, 1971) was a U.S. Army general, and the last man to hold the office of Secretary of War, which secretariat was abolished in 1947. Royall served as the first Secretary of the Army from 1947 to 194 ...
and
William L. Marbury. Their draft bill ran into strong opposition, particularly from the influential Senator
Arthur H. Vandenberg
Arthur Hendrick Vandenberg Sr. (March 22, 1884April 18, 1951) was an American politician who served as a United States senator from Michigan from 1928 to 1951. A member of the Republican Party, he participated in the creation of the United Nati ...
. On December 20, 1945, Senator
Brien McMahon
Brien McMahon, born James O'Brien McMahon (October 6, 1903July 28, 1952) was an American lawyer and politician who served in the United States Senate (as a Democrat from Connecticut) from 1945 to 1952. McMahon was a major figure in the establis ...
introduced an alternative bill on atomic energy, which quickly became known as the McMahon bill. This was initially a very liberal bill towards the control of scientific research, and was broadly supported by scientists. McMahon framed the controversy as a question of military versus civilian control of atomic energy, although the May-Johnson bill also provided for civilian control. Section 10 assigned the patent for any invention related to atomic energy to the commission.
While the bill was being debated, the news broke on February 16, 1946, of the defection of
Igor Gouzenko
Igor Sergeyevich Gouzenko (russian: Игорь Сергеевич Гузенко ; January 26, 1919 – June 25, 1982) was a cipher clerk for the Soviet embassy to Canada in Ottawa, Ontario, and a lieutenant of the GRU (Main Intelligence Direc ...
in Canada, and the subsequent arrest of 22 people. The members of Congress debating the bill feared that "atomic secrets" were being systematically stolen by Soviet
atomic spies
Atomic spies or atom spies were people in the United States, the United Kingdom, and Canada who are known to have illicitly given information about nuclear weapons production or design to the Soviet Union during World War II and the early Cold ...
. McMahon convened an
executive session
An executive session is a term for any block within an otherwise open meeting (often of a board of directors or other deliberative assembly) in which minutes are taken separately or not at all, outsiders are not present, and the contents of the dis ...
at which
Federal Bureau of Investigation
The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice, ...
Director
J. Edgar Hoover
John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American law enforcement administrator who served as the first Director of the Federal Bureau of Investigation (FBI). He was appointed director of the Bureau of Investigation ...
,
Secretary of State James F. Byrnes
James Francis Byrnes ( ; May 2, 1882 – April 9, 1972) was an American judge and politician from South Carolina. A member of the Democratic Party, he served in U.S. Congress and on the U.S. Supreme Court, as well as in the executive branch, ...
and Groves were called to appear. Groves revealed that the British physicist
Alan Nunn May
Alan Nunn May (sometimes Allan) (2 May 1911 – 12 January 2003) was a British physicist and a confessed and convicted Soviet spy who supplied secrets of British and American atomic research to the Soviet Union during World War II.
Early li ...
had passed information about the Manhattan Project to Soviet agents. The more conservative elements in Congress now moved to toughen the act. Section 10, which was formerly titled "Dissemination of Information", now became "Control of Information". Representative
Helen Gahagan Douglas
Helen Gahagan Douglas (born Helen Mary Gahagan; November 25, 1900 – June 28, 1980) was an American actress and politician. Her career included success on Broadway, as a touring opera singer, and in Hollywood films. Her portrayal of the villain ...
, who sponsored the McMahon bill in the
House
A house is a single-unit residential building. It may range in complexity from a rudimentary hut to a complex structure of wood, masonry, concrete or other material, outfitted with plumbing, electrical, and heating, ventilation, and air condi ...
, vigorously defended the section against counterarguments. She dismissed objections that it would "give away the secret of the bomb", asserting that America's advantage in nuclear weapons could only be temporary, whereas the bill could perpetuate the U.S. lead in scientific research. Truman signed the compromise bill into law as the
Atomic Energy Act of 1946
The Atomic Energy Act of 1946 (McMahon Act) determined how the United States would control and manage the nuclear technology it had jointly developed with its World War II allies, the United Kingdom and Canada. Most significantly, the Act rule ...
. It established the
Atomic Energy Commission (AEC) as the controlling body for atomic energy.
Hydrogen bomb
The Manhattan Project had been a
crash
Crash or CRASH may refer to:
Common meanings
* Collision, an impact between two or more objects
* Crash (computing), a condition where a program ceases to respond
* Cardiac arrest, a medical condition in which the heart stops beating
* Couch su ...
program to produce a nuclear weapon. Along the way, promising ideas had been set aside.
Norris Bradbury
Norris Edwin Bradbury (May 30, 1909 – August 20, 1997), was an American physicist who served as director of the Los Alamos National Laboratory for 25 years from 1945 to 1970. He succeeded Robert Oppenheimer, who personally chose Bradbury ...
, who replaced
J. Robert Oppenheimer
J. Robert Oppenheimer (; April 22, 1904 – February 18, 1967) was an American theoretical physicist. A professor of physics at the University of California, Berkeley, Oppenheimer was the wartime head of the Los Alamos Laboratory and is often ...
as director of the
Los Alamos National Laboratory
Los Alamos National Laboratory (often shortened as Los Alamos and LANL) is one of the sixteen research and development laboratories of the United States Department of Energy (DOE), located a short distance northwest of Santa Fe, New Mexico, ...
in late 1945, revived such projects in order to entice scientists to remain at, or return to, Los Alamos. One of these projects was the "Super", a nuclear weapon using
nuclear fusion
Nuclear fusion is a reaction in which two or more atomic nuclei are combined to form one or more different atomic nuclei and subatomic particles ( neutrons or protons). The difference in mass between the reactants and products is manifest ...
, which
Edward Teller
Edward Teller ( hu, Teller Ede; January 15, 1908 – September 9, 2003) was a Hungarian-American theoretical physicist who is known colloquially as "the father of the hydrogen bomb" (see the Teller–Ulam design), although he did not care fo ...
's F-1 group had worked on under Fermi's direction. The technical problem was figuring out a way to get a fusion reaction to initiate and propagate, which required temperatures attainable only with a
fission bomb
A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission (fission bomb) or a combination of fission and fusion reactions (thermonuclear bomb), producing a nuclear explosion. Both bomb ...
. The
hydrodynamic
In physics and engineering, fluid dynamics is a subdiscipline of fluid mechanics that describes the flow of fluids—liquids and gases. It has several subdisciplines, including ''aerodynamics'' (the study of air and other gases in motion) and ...
calculations involved were daunting, and
ENIAC
ENIAC (; Electronic Numerical Integrator and Computer) was the first programmable, electronic, general-purpose digital computer, completed in 1945. There were other computers that had these features, but the ENIAC had all of them in one packa ...
was used to run a computer simulation of the Super in December 1945 and January 1946.
The Polish mathematician
Stanislaw Ulam
Stanisław Marcin Ulam (; 13 April 1909 – 13 May 1984) was a Polish-American scientist in the fields of mathematics and nuclear physics. He participated in the Manhattan Project, originated the Teller–Ulam design of thermonuclear weapon ...
, his wife Francoise Ulam, who performed the calculations, and their collaborator, Cornelius Everett, worked on the Super design through 1949. There was no push from the military for the weapon, because the AEC regarded it as too secret to inform either its own Military Liaison Committee or the
Armed Forces Special Weapons Project
The Armed Forces Special Weapons Project (AFSWP) was a United States military agency responsible for those aspects of nuclear weapons remaining under military control after the Manhattan Project was succeeded by the Atomic Energy Commission on ...
about it. In September 1949, the Soviet Union
detonated a nuclear device. It fell to Oppenheimer, as chairman of the AEC General Advisory Committee (GAC), to decide whether the United States should develop the Super in response. The Super design used large quantities of tritium, which could only be manufactured in a reactor, and therefore at the expense of plutonium production for smaller weapons, so the GAC advised against it. Nonetheless, Truman approved the Super on January 31, 1950. Because of the secrecy surrounding the decision, accounts published in the 1950s incorrectly portrayed Oppenheimer as obstructing its development on political grounds, and this was a factor in the
Oppenheimer security hearing
The Oppenheimer security hearing was a 1954 proceeding by the United States Atomic Energy Commission (AEC) that explored the background, actions, and associations of J. Robert Oppenheimer, the American scientist who had headed the Los Alamos Lab ...
in 1954.
Ulam still only gave the design a "50–50 chance" of success in February 1950. At the end of March, he reported that it would not work at all. Scientists like
Hans Bethe
Hans Albrecht Bethe (; July 2, 1906 – March 6, 2005) was a German-American theoretical physicist who made major contributions to nuclear physics, astrophysics, quantum electrodynamics, and solid-state physics, and who won the 1967 Nobel Prize ...
and
George Gamow
George Gamow (March 4, 1904 – August 19, 1968), born Georgiy Antonovich Gamov ( uk, Георгій Антонович Гамов, russian: Георгий Антонович Гамов), was a Russian-born Soviet and American polymath, theoreti ...
felt that Teller had committed the nation to an expensive crash program on the basis of a model that he knew was flawed. However, in February 1951, Ulam had a new idea, in which the shock wave from an atomic bomb "primary" stage, through an arrangement he called "hydrodynamic lensing", would compress a "secondary" stage of deuterium fusion fuel wrapped around a plutonium rod or "spark plug". On being informed, Teller immediately grasped the potential for using the
X-ray
An X-ray, or, much less commonly, X-radiation, is a penetrating form of high-energy electromagnetic radiation. Most X-rays have a wavelength ranging from 10 picometers to 10 nanometers, corresponding to frequencies in the range 30&nb ...
s produced by the primary explosion for hydrodynamic lensing. This arrangement, which made
thermonuclear weapon
A thermonuclear weapon, fusion weapon or hydrogen bomb (H bomb) is a second-generation nuclear weapon design. Its greater sophistication affords it vastly greater destructive power than first-generation nuclear bombs, a more compact size, a lowe ...
s possible, is now known as the Teller–Ulam design. Although it was not what Truman had approved, the design did work, and was capable of producing multi-megaton explosions. "Rarely in the history of technology", wrote
Howard Morland
Howard Morland (born September 14, 1942) is an American journalist and activist against nuclear weapons who, in 1979, became famous for apparently discovering the "secret" of the hydrogen bomb (the Teller–Ulam design) and publishing it after ...
, "has such a seemingly daunting problem turned out to have such a nifty solution."
In 1950, the Atomic Energy Commission asked ''
Scientific American
''Scientific American'', informally abbreviated ''SciAm'' or sometimes ''SA'', is an American popular science magazine. Many famous scientists, including Albert Einstein and Nikola Tesla, have contributed articles to it. In print since 1845, it i ...
'' not to publish an article by Bethe that it claimed revealed classified information about the hydrogen bomb. ''Scientific American'' reluctantly agreed to stop the presses and make changes in the article, and to recall and burn the 3,000 copies that had already been printed. The 1951 arrest of
Klaus Fuchs
Klaus Emil Julius Fuchs (29 December 1911 – 28 January 1988) was a German theoretical physicist and atomic spy who supplied information from the American, British and Canadian Manhattan Project to the Soviet Union during and shortly aft ...
,
Harry Gold
Harry Gold (born Henrich Golodnitsky, December 11, 1910 – August 28, 1972) was a Swiss-born American laboratory chemist who was convicted as a courier for the Soviet Union passing atomic secrets from Klaus Fuchs, an agent of the Soviet Union, ...
,
David Greenglass
David Greenglass (March 2, 1922 – July 1, 2014) was an atomic spy for the Soviet Union who worked on the Manhattan Project. He was briefly stationed at the Clinton Engineer Works uranium enrichment facility at Oak Ridge, Tennessee, and then ...
,
Morton Sobell
Morton Sobell (April 11, 1917 – December 26, 2018) was an American engineer and Soviet spy during and after World War II; he was charged as part of a conspiracy which included Julius Rosenberg and his wife. Sobell worked on military and govern ...
and
Julius and Ethel Rosenberg
Julius Rosenberg (May 12, 1918 – June 19, 1953) and Ethel Rosenberg (; September 28, 1915 – June 19, 1953) were American citizens who were convicted of spying on behalf of the Soviet Union. The couple were convicted of providing top-secret i ...
who, according to FBI Director J. Edgar Hoover, "stole the basic secrets of nuclear fission", caused great concern. President
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; ; October 14, 1890 – March 28, 1969) was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961. During World War II, ...
denied the Rosenbergs clemency on the grounds that their actions "could well result in the deaths of many, many thousands of innocent citizens", and they were executed. After the Soviet Union detonated
Joe 4
Joe 4 was an American nickname for the first Soviet test of a thermonuclear weapon on August 12, 1953, that detonated with a force equivalent to 400 kilotons of TNT. The proper Soviet terminology for the warhead was RDS-6s, , .
RDS-6 utilized a ...
in August 1953, newspapers proclaimed that the Soviets had tested a hydrogen bomb. In fact it was only a boosted fission device, but the veil of secrecy covering the thermonuclear program prevented scientists from informing the public.
Prior restraint
Prior restraint has generally been regarded by U.S. courts, particularly the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
, as being "the most serious and least tolerable" of restrictions on the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
. The
Blackstone Commentaries defined
freedom of the press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic News media, media, especially publication, published materials, should be conside ...
as "laying no restraints upon publication, and not in freedom from censure for criminal matter when published." The Supreme Court had however never held that prior restraint was
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. On the contrary, in ''
Near v. Minnesota
''Near v. Minnesota'', 283 U.S. 697 (1931), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court under which prior restraint on publication was found to violate Freedom of the press in the United S ...
'' 283 U.S. 697 (1931),
Chief Justice Charles E. Hughes remarked that in wartime, "no 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." He further suggested that obscenity or incitement to insurrection would be similar grounds for prior restraint. The court subsequently upheld
free speech exceptions such as restrictions on demonstrations in ''
Cox v. New Hampshire'', 312 U.S. 569 (1941), and
censorship
Censorship is the suppression of speech, public communication, or other information. This may be done on the basis that such material is considered objectionable, harmful, sensitive, or "inconvenient". Censorship can be conducted by governments ...
of motion pictures in ''Times Film Corp. v. City of Chicago'', 365 U.S. 43 (1961).
In ''
New York Times Co. v. United States
''New York Times Co. v. United States'', 403 U.S. 713 (1971), was a landmark decision of the Supreme Court of the United States on the First Amendment right of Freedom of the Press. The ruling made it possible for ''The New York Times'' and ''The ...
'' 403 U.S. 713 (1971)—better known as the
Pentagon Papers
The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States in the Vietnam War, United States' political and military ...
case—the government had sought to prevent the publication of classified material by ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
''. In this case, the Supreme Court ruled 6–3 that the government had not reached the standard required by ''Near'' to justify prior restraint, but the concurring justices gave differing opinions about where the line should be drawn. In his opinion, Justice
Potter Stewart
Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas, ...
wrote that while publication of ''The Pentagon Papers'' would likely harm the national interest, it would not result in "direct, immediate or irreparable harm to our Nation or its people". Failure to provide a clear line inevitably meant that the court had to deal with prior restraint on a case-by-case basis. In ''
Nebraska Press Association v. Stuart'', 427 U.S. 539 (1976), the court was called upon to decide whether news reportage of a lurid mass murder case in a small town in Nebraska would justify prior restraint in order to protect the defendant's right to a fair trial. In this case, the court ruled unanimously that it would not. Most of the justices viewed ''Near'' as providing the only grounds for prior restraint, and declined to expand its scope any further.
Trial
Morland's research
![Howard Morland 2008](https://upload.wikimedia.org/wikipedia/commons/d/d3/Howard_Morland_2008.jpg)
''The Progressive'' was a left-wing American monthly magazine of politics, culture and opinion with a circulation of around 40,000. In 1978, its managing editor, Sam Day Jr., a former editor of the ''
Bulletin of the Atomic Scientists
The ''Bulletin of the Atomic Scientists'' is a nonprofit organization concerning science and global security issues resulting from accelerating technological advances that have negative consequences for humanity. The ''Bulletin'' publishes conte ...
'', and its editor,
Erwin Knoll Erwin Knoll (1931 – November 2, 1994) was an American journalist who was editor of ''The Progressive'' from 1973 to 1994.
Early life
Knoll was born in Austria, into a Jewish family, and as a child fled from the Nazis."Erwin Knoll: A True Progre ...
, commissioned freelance journalist
Howard Morland
Howard Morland (born September 14, 1942) is an American journalist and activist against nuclear weapons who, in 1979, became famous for apparently discovering the "secret" of the hydrogen bomb (the Teller–Ulam design) and publishing it after ...
to write an article on the secrecy surrounding nuclear weapons production in America. In October 1978, Morland got Representative
Ronald V. Dellums to submit a series of questions about plutonium production to the
Department of Energy A Ministry of Energy or Department of Energy is a government department in some countries that typically oversees the production of fuel and electricity; in the United States, however, it manages nuclear weapons development and conducts energy-rel ...
(DOE), the successor to the AEC. The DOE responded by classifying the questions. In September and October 1978, the
House Armed Services Committee
The U.S. House Committee on Armed Services, commonly known as the House Armed Services Committee or HASC, is a standing committee of the United States House of Representatives. It is responsible for funding and oversight of the Department of Defe ...
held hearings on the proposed
Comprehensive Nuclear-Test-Ban Treaty
The Comprehensive Nuclear-Test-Ban Treaty (CTBT) is a multilateral treaty to ban nuclear weapons test explosions and any other nuclear explosions, for both civilian and military purposes, in all environments. It was adopted by the United Nations ...
. There was widespread public ignorance of issues surrounding nuclear weapons, and associated environmental concerns. Day and Morland hoped that by demystifying nuclear weapons, they would promote more critical public debate, and improve the prospects for nuclear disarmament. Morland claimed that "I am precisely the type of person the First Amendment was intended to protect: a political advocate whose ideas are unpopular with the general public and threatening to the government."
Over a period of six months, Morland systematically pieced together a design for a hydrogen bomb. He visited a number of nuclear weapons facilities and interviewed government employees, with the permission of the DOE, usually identifying himself and his purpose. He did not have a security clearance, and had never had any access to classified nuclear weapons documents, although it is possible that some classified information or ideas were accidentally or deliberately leaked to him. His scientific background was minimal; he had taken five undergraduate courses in physics and chemistry as part of his
Bachelor of Arts
Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four years ...
degree in economics at
Emory University
Emory University is a private research university in Atlanta, Georgia. Founded in 1836 as "Emory College" by the Methodist Episcopal Church and named in honor of Methodist bishop John Emory, Emory is the second-oldest private institution of ...
. Morland identified the features of the Teller–Ulam design as staging, with a fission primary and a fusion secondary inside opposite ends of a hollow container, and the use of radiation from the exploding primary to compress, or implode, the secondary. "The notion that X-rays could move solid objects with the force of thousands of tons of dynamite," noted Morland, "was beyond the grasp of the science fiction writers of the time."
Day sent draft copies of Morland's article out to reviewers in late 1978 and early 1979, including Ron Siegel, a graduate student at
Massachusetts Institute of Technology
The Massachusetts Institute of Technology (MIT) is a private land-grant research university in Cambridge, Massachusetts. Established in 1861, MIT has played a key role in the development of modern technology and science, and is one of the ...
. Siegel gave his draft copy to George Rathjens, a professor of political science there in February 1979. For many years, Rathjens had issued a challenge to his graduate students to produce a workable design for a hydrogen bomb, but no one had ever succeeded. Rathjens phoned ''The Progressive'' and urged that the article not be published. When the editors dismissed his suggestion, he sent the draft to the DOE. "Apparently," wrote Morland, "I had earned a passing grade on the Rathjens challenge".
Legal arguments
In March 1979, the editors sent a final draft to the DOE for comment. DOE officials, first in phone calls and then in person, attempted to dissuade ''The Progressive'' from publishing the article on the grounds that it contained "secret
restricted data
Restricted Data (RD) is a category of proscribed information, per National Industrial Security Program Operating Manual (NISPOM). Specifically, it is defined by the Atomic Energy Act of 1954 as:
:''all data concerning (1) design, manufacture, or u ...
" as defined by the Atomic Energy Act. ''The Progressive'' editors were not persuaded, and told the officials that they intended to proceed with publishing Morland's article. The DOE filed a
motion to suppress
Suppression of evidence is a term used in the United States legal system to describe the lawful or unlawful act of preventing evidence from being shown in a trial. This could happen for several reasons. For example, if a judge believes that the e ...
the article with the
in
Madison Madison may refer to:
People
* Madison (name), a given name and a surname
* James Madison (1751–1836), fourth president of the United States
Place names
* Madison, Wisconsin, the state capital of Wisconsin and the largest city known by this ...
on March 8, 1979. There was only one judge in the Western District of Wisconsin at the time, Judge
James Edward Doyle
James Edward Doyle (July 6, 1915 – April 1, 1987) was a United States district judge of the United States District Court for the Western District of Wisconsin and a leader of the Wisconsin Democratic Party.
Education and career
Born in Osh ...
, but he recused himself as a friend of the magazine. The case was therefore brought before Judge
Robert W. Warren
Robert Willis Warren (August 30, 1925 – August 20, 1998) was a United States district judge for the Eastern District of Wisconsin. He had previously served as attorney general of Wisconsin and represented Brown and Calumet Counties in the ...
, a judge in the
Eastern District of Wisconsin, and heard by Warren in
Milwaukee
Milwaukee ( ), officially the City of Milwaukee, is both the most populous and most densely populated city in the U.S. state of Wisconsin and the county seat of Milwaukee County. With a population of 577,222 at the 2020 census, Milwaukee is ...
.
Lawyers for ''The Progressive'' voluntarily underwent security reviews and were granted
Q clearance
Q clearance or Q access authorization is the U.S. Department of Energy (DOE) security clearance required to access Top Secret Restricted Data, Formerly Restricted Data, and National Security Information, as well as Secret Restricted Data. Restri ...
s that allowed them to access restricted nuclear information. Morland and ''The Progressive'' editors declined to obtain clearances, as they would have had to sign non-disclosure agreements that would have prevented them from publishing the article. This resulted in the lawyers being restricted in their communications with their clients.
In seeking a
temporary restraining order
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
, government lawyers argued that ''The Progressive'' was about to break the law, causing
irreparable harm An irreparable injury is, in equity, "the type of harm which no monetary compensation can cure or put conditions back the way they were."
The irreparable injury rule
It has traditionally been a requirement of equity that no relief can be granted un ...
. The data in the article was
born classified
"Born secret" and "born classified" are both terms which refer to a policy of information being classified from the moment of its inception, usually regardless of where it was created, and usually in reference to specific laws in the United Stat ...
, so it did not matter that it was an original work of the author. They noted that prior restraint had been upheld by the courts before in matters of national security, and argued that the ''Pentagon Papers'' decision did not apply as the Atomic Energy Act specifically allowed for
injunctive relief
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
. Moreover, the Pentagon Papers were historical, whereas the hydrogen bomb was a current military weapon. Finally, they pointed out that the government had obligations under the
Nuclear Non-Proliferation Treaty
The Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT, is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation ...
not to assist non-nuclear states in acquiring nuclear weapons. In granting the temporary restraining order on March 9, Warren said that he would have "to think long and hard before I gave the hydrogen bomb to
Idi Amin
Idi Amin Dada Oumee (, ; 16 August 2003) was a Ugandan military officer and politician who served as the third president of Uganda from 1971 to 1979. He ruled as a military dictator and is considered one of the most brutal despots in modern w ...
."
James R. Schlesinger
James Rodney Schlesinger (February 15, 1929 – March 27, 2014) was an American economist and public servant who was best known for serving as Secretary of Defense from 1973 to 1975 under Presidents Richard Nixon and Gerald Ford. Prior ...
, the
Secretary of Energy
The United States secretary of energy is the head of the United States Department of Energy, a member of the Cabinet of the United States, and fifteenth in the presidential line of succession. The position was created on October 1, 1977, when Pr ...
, telephoned leading newspapers and warned them not to support ''The Progressive''. This was probably unnecessary, for the media were supportive of the government's case.
Fred Graham, the ''New York Times'' legal correspondent, predicted that the government would win the case. In an editorial on March 11, 1979, ''
The Washington Post
''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'' wrote that ''The Progressive'' case, "as a press-versus-government First Amendment contest, is
John Mitchell's dream case—the one the
Nixon Administration
Richard Nixon's tenure as the List of presidents of the United States, 37th president of the United States began with First inauguration of Richard Nixon, his first inauguration on January 20, 1969, and ended when he resigned on August 9, 1974 ...
was never lucky enough to get: a real First Amendment loser." The newspaper called on ''The Progressive'' to "forget about publishing it". In the ''Pentagon Papers'' case, Professor
Alexander Bickel
Alexander Mordecai Bickel (1924–1974) was an American legal scholar and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint.
Life ...
, an expert on the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, when asked hypothetically if prior restraint could ever be justified, had told the court that he would draw the line at the hydrogen bomb.
Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the ''Pent ...
, who had leaked the Pentagon Papers, told Morland that he believed that nuclear weapon designs should be kept secret. Because of the horrific nature of thermonuclear weapons, and the expectation that ''The Progressive'' would probably lose the case, mainstream media organizations feared that the result would be an erosion of freedom of the press.
However, the court's role was to rule on whether publication was legal, not whether it was wise. In keeping with the usual practice of keeping a temporary restraining order in effect for as short a time as possible, Warren ordered that hearings be held on a
preliminary injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
one week after the March 9 temporary restraining order. On March 16, the Progressive's attorneys filed an affidavit from
Theodore Postol
Theodore A. Postol (born 1946) is a professor emeritus of Science, Technology, and International Security at the Massachusetts Institute of Technology. Prior to his work at MIT, he worked at Argonne National Laboratory, the Pentagon, and Stanford ...
, an employee of the Department of Energy's
Argonne National Laboratory
Argonne National Laboratory is a science and engineering research United States Department of Energy National Labs, national laboratory operated by University of Chicago, UChicago Argonne LLC for the United States Department of Energy. The facil ...
, stating that the information contained in the Morland article could be derived by any competent physicist from Teller's article on the hydrogen bomb in the ''
Encyclopedia Americana
''Encyclopedia Americana'' is a general encyclopedia written in American English. It was the first major multivolume encyclopedia that was published in the United States. With ''Collier's Encyclopedia'' and ''Encyclopædia Britannica, Encyclo ...
''. At the request of both parties, the hearing was postponed to March 26 so they would have more time to file their briefs and affidavits.
The parties were therefore back in court again on March 26 for a hearing on the government's request for a preliminary injunction. Warren decided not to hold an evidentiary hearing at which the opposing teams of experts could be cross examined. He also declined a suggestion by the
Federation of American Scientists
The Federation of American Scientists (FAS) is an American nonprofit global policy think tank with the stated intent of using science and scientific analysis to attempt to make the world more secure. FAS was founded in 1946 by scientists who wo ...
in its ''
amicus curiae
An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
'' brief that a panel of experts be charged with examining the issue. The case relied on written affidavits and briefs, and the opposing counsels' oral arguments.
Testimony was introduced entirely in the form of sworn affidavits, the most important of which were deemed classified and presented to the court ''
in camera
''In camera'' (; Latin: "in a chamber"). is a legal term that means ''in private''. The same meaning is sometimes expressed in the English equivalent: ''in chambers''. Generally, ''in-camera'' describes court cases, parts of it, or process wh ...
''. The government affiants included classification officers, weapon lab scientists, the Secretaries of Energy, State, and Defense, and Nobel physics laureate
Hans Bethe
Hans Albrecht Bethe (; July 2, 1906 – March 6, 2005) was a German-American theoretical physicist who made major contributions to nuclear physics, astrophysics, quantum electrodynamics, and solid-state physics, and who won the 1967 Nobel Prize ...
, whom Judge Warren cited as the star witness for the plaintiff. The defense side had no experts with direct knowledge of nuclear weapon design, until the unexpected appearance of
Ray Kidder
Ray E. Kidder () was an American physicist and nuclear weapons designer. He is best known for his outspoken views on nuclear weapons policy issues, including nuclear testing, stockpile management, and arms control.
Kidder was a weapons physic ...
, a nuclear weapon designer at the
Lawrence Livermore National Laboratory
Lawrence Livermore National Laboratory (LLNL) is a federal research facility in Livermore, California, United States. The lab was originally established as the University of California Radiation Laboratory, Livermore Branch in 1952 in response ...
. One of Kidder's jobs in 1962 had been to evaluate designs of the 29 thermonuclear devices tested in
Operation Dominic
Operation Dominic was a series of 31 nuclear test explosions with a total yield conducted in 1962 by the United States in the Pacific. This test series was scheduled quickly, in order to respond in kind to the Soviet resumption of testing af ...
. Kidder was able to credibly dispute government arguments in the battle of affidavits, leveling the technical playing field. Because of the importance of
radiation implosion
Radiation implosion is the compression of a target by the use of high levels of electromagnetic radiation. The major use for this technology is in fusion bombs and inertial confinement fusion research.
History
Radiation implosion was first deve ...
in civilian fusion research, Kidder had been quietly waging a campaign to declassify it for some years prior to the Progressive case.
''The Progressive''s legal team argued that the government had not established a case sufficient "to overcome the First Amendment's presumption against prior restraint". The article was based upon information in the
public domain
The public domain (PD) consists of all the creative work
A creative work is a manifestation of creative effort including fine artwork (sculpture, paintings, drawing, sketching, performance art), dance, writing (literature), filmmaking, ...
, and was therefore neither a threat to national security nor covered by the Atomic Energy Act, which in any case did not authorize prior restraint, or was unconstitutional if it did. In this, counsel relied on the ''
United States v. Heine'' decision, in which Judge
Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
ruled that information in the public domain could not be covered by the
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
. The government's lawyers argued, on the contrary, that there was sensitive information in the article, which was not in the public domain, and which, if published, would harm arms control efforts.
In attempting to apply the ''Near'' and ''Pentagon Papers'' standards, the court was concerned about the prospect of publication causing the proliferation of nuclear weapons, and potentially a global
nuclear holocaust
A nuclear holocaust, also known as a nuclear apocalypse, nuclear Armageddon, or atomic holocaust, is a theoretical scenario where the mass detonation of nuclear weapons causes globally widespread destruction and radioactive fallout. Such a scenar ...
. The government did not go so far as to claim that publication might pose an immediate or inevitable danger, only that it "would substantially increase the risk that thermonuclear weapons would become available or available at an earlier date to those who do not now have them. If this should occur, it would undermine our nonproliferation policy, irreparably impair the
national security of the United States, and pose a threat to the peace and security of the world." However, the court still found that "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",
and that publication could indeed cause "grave, direct, immediate and irreparable harm to the United States",
thereby meeting the test the Supreme Court had enunciated in the ''Pentagon Papers'' case. The preliminary injunction was therefore granted.
Lawyers for ''The Progressive'' filed a
motion to vacate
A motion to vacate is a formal proposal, either to 'vacate' (or reverse) the decision in a matter which had previously been formally ruled upon or decided, or to replace the holder of a presiding position.
Legal use
In the legal context, a motion ...
the decision on the grounds that the information contained in Morland's article was already in the public domain. The basis for this claim was two reports from the
Lawrence Livermore National Laboratory
Lawrence Livermore National Laboratory (LLNL) is a federal research facility in Livermore, California, United States. The lab was originally established as the University of California Radiation Laboratory, Livermore Branch in 1952 in response ...
UCRL-4725, "Weapons Development During June 1956", and UCRL-5280, "Weapons Development During June 1958", which contained detailed information on thermonuclear weapon design. One of them, UCRL-4725, gave details about ''Bassoon'', a three-stage thermonuclear device tested during
Operation Redwing
Operation Redwing was a United States series of 17 nuclear test detonations from May to July 1956. They were conducted at Bikini and Enewetak atolls by Joint Task Force 7 (JTF7).Blumenson, Martin and Hugh D. Hexamer (1956). ''A History of Op ...
in 1956. It was found on the shelves of the Los Alamos library by Dmitri Rotow, a researcher for the
American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
. According to the government, the reports had been inadvertently declassified. On June 15, Warren therefore denied the motion on the grounds that such an error did not place the documents in the public domain. The appellants immediately appealed to the
Seventh Circuit Court of Appeals
The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts:
* Central District of Illinois
* Northern District of Ill ...
in Chicago, claiming that the two documents had been on the shelves for a considerable period of time. The government now advanced the argument that "technical data" was not protected by the First Amendment. The motions for an expedited review were denied because the magazine's lawyers had waived that right—something Morland and ''The Progressive'' editors discovered only from the court. The preliminary injunction therefore remained in effect for six months.
Case dropped
On April 25, 1979, a group of scientists who worked at the
Argonne National Laboratory
Argonne National Laboratory is a science and engineering research United States Department of Energy National Labs, national laboratory operated by University of Chicago, UChicago Argonne LLC for the United States Department of Energy. The facil ...
wrote to Senator
John Glenn
John Herschel Glenn Jr. (July 18, 1921 – December 8, 2016) was an American Marine Corps aviator, engineer, astronaut, businessman, and politician. He was the third American in space, and the first American to orbit the Earth, circling ...
, the Chairman of the United States Senate Subcommittee on Energy, Nuclear Proliferation and Federal Services. They were concerned about information being leaked, in particular by the government's tacit acknowledgement that Morland's bomb design was substantially correct, something that could not otherwise have been deduced from unclassified information. These included the affidavits by the
United States Secretary of Defense
The United States secretary of defense (SecDef) is the head of the United States Department of Defense, the executive department of the U.S. Armed Forces, and is a high ranking member of the federal cabinet. DoDD 5100.1: Enclosure 2: a The s ...
Harold Brown and government expert witness Jack Rosengren. Copies of the letter were sent to major newspapers, but with a cover note explaining that it was for background information and not publication. After about four weeks, the Glenn subcommittee forwarded it to the DOE, which classified it.
Unaware of this, Hugh DeWitt, a physicist at the Lawrence Livermore nuclear weapons laboratory, forwarded a copy to
Chuck Hansen
Chuck Hansen (May 13, 1947 - March 26, 2003) was the compiler, over a period of 30 years, of the world's largest private collection of unclassified documents on how America developed atomic and thermonuclear weapons.
Research
Hansen's documents w ...
. Hansen was a computer programmer from
Mountain View, California
Mountain View is a city in Santa Clara County, California, United States. Named for its views of the Santa Cruz Mountains, it has a population of 82,376.
Mountain View was integral to the early history and growth of Silicon Valley, and is the ...
, who collected information about nuclear weapons as a hobby. He had run a competition to design an H-bomb, the winner of which would be the first person to have their design classified by the DOE. It now began to occur to him that his hobby might not be legal. On August 27, he wrote a letter to Senator
Charles H. Percy
Charles Harting Percy (September 27, 1919 – September 17, 2011) was an American businessman and politician. He was president of the Bell & Howell Corporation from 1949 to 1964, and served as a Republican U.S. senator from Illinois from 1967 ...
detailing how much information he had deduced from publicly available sources. This included his own design, one not as good as Morland's, which Hansen had not seen. Hansen further charged that government scientists—including Edward Teller,
Ted Taylor, and George Rathjens—had leaked sensitive information about thermonuclear weapons, for which no action had been taken. In this, Hansen was mistaken: Taylor had indeed been reprimanded, and Teller was not the source of the information that Hansen attributed to him. Hansen made copies of his letter available to several newspapers.
When ''
The Daily Californian
''The Daily Californian'' (''Daily Cal'') is an independent, student-run newspaper that serves the University of California, Berkeley, campus and its surrounding community. It formerly published a print edition four days a week on Monday, Tuesd ...
'' (the student-run
college newspaper
A student publication is a media outlet such as a newspaper, magazine, television show, or radio station produced by students at an educational institution. These publications typically cover local and school-related news, but they may also repor ...
of the
University of California at Berkeley
The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant univ ...
), published excerpts from the Argonne letter on June 11, the DOE obtained a court order to prevent further publication. Undeterred, ''The Daily Californian'' published the Argonne letter in its entirety on June 13. In September, the DOE declared the Hansen letter to be classified and obtained a temporary restraining order prohibiting ''The Daily Californian'' from publishing it, but the Hansen letter was published by the ''
Madison Press Connection'' on September 16. The government then moved to dismiss their cases against both ''The Progressive'' and ''The Daily Californian'' as moot.
Legacy
Morland's article was published in the November 1979 issue of ''The Progressive''. A month later he published an erratum in ''The Progressive'' with updates based on information that he had gathered during the trial from UCRL-4725, Chuck Hansen's letter and other sources. In Morland's opinion, the article contributed to a wave of anti-nuclear activism in the late 1970s and early 1980s that resulted in, amongst other things, the closure of the
Rocky Flats Plant
The Rocky Flats Plant was a U.S. manufacturing complex that produced nuclear weapons parts in the western United States, near Denver, Colorado. The facility's primary mission was the fabrication of plutonium pits, which were shipped to ot ...
near Denver. Chuck Hansen went on to publish a book, ''U.S. Nuclear Weapons: The Secret History'', in 1988. This was subsequently expanded to a self-published five volume work entitled ''Swords of Armageddon''. However, many mainstream media organizations still remained reluctant to test the law by publishing. On September 30, 1980, the Justice Department issued a statement that it would not prosecute alleged violations of the Atomic Energy Act during the ''Daily Californian'' or ''The Progressive'' cases.
Hearings on the case were held by Glenn's subcommittee and by the House Subcommittee on Government Information and Individual Rights. The subcommittees looked into the implications of the decision with regards to nuclear proliferation. They also examined the doctrine of "classified at birth", but did not decide to amend the Atomic Energy Act to remove such provisions. Thus far, fears of thermonuclear proliferation have not proven founded; whether any country has successfully
developed a hydrogen bomb since 1979 is disputed.
From a legal standpoint, the case "proved to be a victory for no one", due to the indecisive nature of its conclusion. Yet it remains a celebrated case nonetheless. In 2004, the 25th anniversary of the decision was commemorated with an academic conference at the
Benjamin N. Cardozo School of Law
The Benjamin N. Cardozo School of Law is the law school of Yeshiva University. Located in New York City and founded in 1976, the school is named for Supreme Court Justice Benjamin N. Cardozo. Cardozo graduated its first class in 1979. An LL.M. p ...
, attended by many of the participants, at which papers were presented. Law students still study the case, which "could have been a law school hypothetical designed to test the limits of the presumption of unconstitutionality attached to prior restraints."
Notes
References
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External links
*
"The H-Bomb Secret: How we got it, why we're telling it" ''
The Progressive
''The Progressive'' is a left-leaning American magazine and website covering politics and culture. Founded in 1909 by U.S. senator Robert M. La Follette Sr. and co-edited with his wife Belle Case La Follette, it was originally called ''La Follett ...
,'' November 1979
ntire issue online Retrieved March 4, 2012.
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{{Portal bar, Journalism, Law, Nuclear technology, United States
1979 in United States case law
Nuclear secrecy
United States district court cases
United States Free Speech Clause case law
United States government secrecy
United States Department of Energy
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