United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland, 467 F. Supp. 990 (W.D. Wis. 1979), was a lawsuit brought against The Progressive magazine by the United States Department of Energy (DOE) in 1979. A temporary injunction was granted against The Progressive to prevent the publication of an article written by activist Howard Morland that purported to reveal the "secret" of the hydrogen bomb. Though the information had been compiled from publicly available sources, the DOE claimed that it fell under the "born secret" clause of the Atomic Energy Act of 1954.
Although the case was filed in the Western District of Wisconsin, the judge there recused himself as a friend of the magazine. The case was therefore brought before Judge Robert W. Warren, 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. The defendants, Morland and the editors of The Progressive, would not accept security clearances, as they would have had to sign non-disclosure agreements that would have put restraints on their free speech (including, significantly, in written form), and so were not present at the in camera hearings. Their lawyers obtained clearances so that they could participate, but were forbidden from conveying anything they heard 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 attached to prior restraints".
Background
Secrecy and disclosure The first atomic bombs were developed by the wartime Manhattan Project. This was carried out in secret, lest its discovery induce the Axis powers, 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, and an official account, known as the Smyth Report after its author, the physicist Henry DeWolf Smyth, was commissioned in April 1944 to provide a history of the project for public release. The Director of the Manhattan Project, Major General Leslie Groves, his scientific adviser, Richard Tolman, 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 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 Harry S. Truman 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 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
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 used the occasion of the announcement of the founding of the Institute for Nuclear Studies 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 warned that "unless research is free and outside of control, the United States will lose its superiority in scientific pursuit".
The War Department envisaged that the Manhattan Project would be superseded by a statutory authority. Legislation to create it was drafted by two War Department lawyers, Kenneth C. Royall and William L. Marbury. Their draft bill ran into strong opposition, particularly from the influential Senator Arthur H. Vandenberg. On December 20, 1945, Senator Brien McMahon 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 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. McMahon convened an executive session at which Federal Bureau of Investigation Director J. Edgar Hoover, Secretary of State James F. Byrnes and Groves were called to appear. Groves revealed that the British physicist Alan Nunn May 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, who sponsored the McMahon bill in the House, 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. It established the Atomic Energy Commission (AEC) as the controlling body for atomic energy.
Hydrogen bomb
The Manhattan Project had been a crash program to produce a nuclear weapon. Along the way, promising ideas had been set aside. Norris Bradbury, who replaced J. Robert Oppenheimer as director of the Los Alamos National Laboratory 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, which Edward Teller'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. The hydrodynamic calculations involved were daunting, and ENIAC was used to run a computer simulation of the Super in December 1945 and January 1946.
The Polish mathematician Stanislaw Ulam, his wife Francoise, 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 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 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 and George Gamow 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-rays produced by the primary explosion for hydrodynamic lensing. This arrangement, which made thermonuclear weapons 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, "has such a seemingly daunting problem turned out to have such a nifty solution."
In 1950, the Atomic Energy Commission asked Scientific American 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, Harry Gold, David Greenglass, Morton Sobell and Julius and Ethel Rosenberg who, according to FBI Director J. Edgar Hoover, "stole the basic secrets of nuclear fission", caused great concern. President Dwight D. Eisenhower 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 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, as being "the most serious and least tolerable" of restrictions on the First Amendment. The Blackstone Commentaries defined freedom of the press 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. On the contrary, in Near v. Minnesota 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 of motion pictures in Times Film Corporation v. City of Chicago, 365 U.S. 43 (1961).