467 F. Supp. 990 (W.D. Wis. 1979)
In early 1979 Howard Morland, a freelance writer specializing in energy and nuclear weapons issues, completed an article for The Progressive magazine describing the operation of a hydrogen bomb and titled “The H-Bomb Secret — How We Got It, Why We’re Telling It.”1 The Progressive, Inc., which publishes the magazine from its principal place of business in Madison, Wisconsin, planned to include the article in its May 1979 issue.2 Erwin Knoll served as editor of The Progressive magazine.3 Samuel H. Day, Jr., served as managing editor.4
On February 27, 1979, a copy of the Morland article was delivered to Department of Energy offices in Germantown, Maryland, accompanied by a letter from Day stating that the article contained technical information pertaining to hydrogen weapon design and manufacture and requesting verification of its technical accuracy.5 Copies were forwarded to the Director of Classification and the Assistant Secretary of Energy for Defense Programs.6 Those officials determined that a significant portion contained information required to be classified as Secret Restricted Data under the Atomic Energy Act.7 That data had not been declassified.8
On March 1, 1979, the DOE General Counsel telephoned Day and Knoll.9 He informed them that the Department possessed a copy of the article.10 He stated that publication would injure the United States and give an advantage to other nations.11 He requested that The Progressive refrain from publishing.12 On March 2 a DOE official met with Day, Knoll, and the publisher and offered to work with the magazine to recast the classified portions so they would no longer be classified.13 On March 7 counsel for The Progressive advised DOE that the magazine intended to publish unless the United States promptly obtained a temporary restraining order.14
The United States filed its complaint on March 8, 1979, in the Western District of Wisconsin.15 The assigned judge disqualified himself from the proceeding.16 The case was transferred to the Eastern District of Wisconsin.17 On March 9, 1979, after hearing from both parties, the court issued a temporary restraining order enjoining defendants, their employees, and agents from publishing or otherwise disclosing any restricted data contained in the article.18 The temporary restraining order was continued until March 26.19 At the request of the parties the preliminary injunction hearing was rescheduled to March 26, 1979, so that both sides could file additional affidavits and briefs.20
The court received and studied numerous affidavits from individuals of learning and renown addressing how the information was assembled, what it meant, and how injurious publication would be.21 The court also considered amicus briefs and heard extensive argument.22 The court found that the article contained concepts not found in the public realm that are vital to the operation of a hydrogen bomb.23 Although some information appeared in scattered public sources, the article provided a more comprehensive, accurate, and detailed analysis of thermonuclear weapon construction and operation than any prior publication.24 Publication would provide vital information on key concepts.25 It could allow a medium-size nation to move faster in developing a hydrogen weapon.26 It could materially reduce the time required by some non-thermonuclear nations to achieve thermonuclear capability.27
Whether the United States is entitled to a preliminary injunction under 42 U.S.C. § 2280 to restrain publication of restricted data contained in the Morland article?28
Under 42 U.S.C. § 2280 and the Atomic Energy Act, the United States may obtain a preliminary injunction.29 The required showing includes a reasonable likelihood of success on the merits.30 Defendants must intend to disclose restricted data with reason to believe such disclosure will injure the United States or secure an advantage to a foreign nation. The United States must show it will suffer irreparable harm.31 The balance of equities and public interest must favor injunctive relief.32
Yes. The Morland article completed by Howard Morland for The Progressive magazine contains concepts vital to the operation of a hydrogen bomb that are not found in the public realm.33 The Department of Energy officials reviewed the article and determined that a significant portion contained information required to be classified as Secret Restricted Data that had not been declassified.34 After being informed by the DOE General Counsel on March 1, 1979, and by another DOE official on March 2, 1979, that the article contained Secret Restricted Data whose publication would injure the United States and advantage foreign nations, the defendants stated through counsel on March 7, 1979, that they intended to publish unless restrained.35
Publication would provide vital information on key concepts. It could allow a medium-size nation to move faster in developing a hydrogen weapon. It could materially reduce the time required by some non-thermonuclear nations to achieve thermonuclear capability. The United States and its citizens will suffer irreparable harm if the injunction does not issue while the defendants will not be substantially harmed by its issuance.36
The United States is entitled to a preliminary injunction under 42 U.S.C. § 2280 to restrain publication of the restricted data contained in the Morland article.37
Whether the Morland article contains restricted data as defined by 42 U.S.C. § 2014(y) that remains classified as Secret Restricted Data?38
Yes. The Director of Classification and the Assistant Secretary of Energy for Defense Programs reviewed the Morland article after its delivery to Department of Energy offices on February 27, 1979, and determined that a significant portion contained information that the Atomic Energy Act requires to be classified as Secret Restricted Data.41 The Restricted Data contained in the article has not been declassified and remains classified as Secret Restricted Data.42 The court found after studying the affidavits that the article contains concepts not found in the public realm that are vital to the operation of a hydrogen bomb.43
Although some information appeared in scattered public sources, the article provides a more comprehensive, accurate, and detailed analysis of thermonuclear weapon construction and operation than any prior publication.44
The Morland article contains restricted data as defined by 42 U.S.C. § 2014(y) that remains classified as Secret Restricted Data.45
Whether defendants had reason to believe that publication of the restricted data would injure the United States or secure an advantage to a foreign nation within the meaning of 42 U.S.C. § 2274(b)?46
Yes. On March 1, 1979, the DOE General Counsel telephoned Day and Knoll and informed them that the Department possessed a copy of the article and that, in the opinion of the Department of Energy, the Department of State, and the Arms Control and Disarmament Agency, publication of the Restricted Data would injure the United States and would give an advantage to other nations.49 On March 2, 1979, a DOE official met with Day, Knoll, and the publisher and advised them that publication would constitute a violation of the Atomic Energy Act and would give an advantage to foreign nations in the development of thermonuclear technology.50 After this notice, counsel for The Progressive advised the Department of Energy on March 7, 1979, that the magazine intended to publish the article.51
The court found that defendants have reason to believe that publication of the Secret Restricted Data would injure the United States or secure an advantage to a foreign nation.52
Defendants had reason to believe that publication of the restricted data would injure the United States or secure an advantage to a foreign nation within the meaning of 42 U.S.C. § 2274(b).53
Whether publication of the restricted data in the Morland article would cause direct, immediate, and irreparable harm to the national security of the United States?54
Yes. Publication of the Restricted Data contained in the Morland article would be extremely important to a nation seeking a thermonuclear capability.57 It would provide vital information on key concepts involved in the construction of a practical thermonuclear weapon.58 Once basic concepts are learned, the remainder of the process may easily follow.59 The article could provide sufficient information to allow a medium-size nation to move faster in developing a hydrogen weapon.60 It could materially reduce the time required by some non-thermonuclear nations to achieve thermonuclear weapon capability.61
The Secretary of State stated that publication will increase thermonuclear proliferation and irreparably impair the national security of the United States.62 The Secretary of Defense stated that dissemination 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.63 The court found that publication or other disclosure would irreparably harm the national security of the United States and would result in direct, immediate, and irreparable damage.64
Publication of the restricted data in the Morland article would cause direct, immediate, and irreparable harm to the national security of the United States.65
Whether a preliminary injunction restraining publication of the article would violate the First Amendment prohibition on prior restraint?66
Although prior restraints on publication come into court under a heavy presumption against constitutional validity, the First Amendment does not prohibit prior restraint in the extremely narrow area involving national security.67 Publication must be analogous to the publication of troop movements or sailing dates of transports in time of war, as recognized in Near v. Minnesota.68
No. The court found that the facts and circumstances presented fall within the extremely narrow recognized area involving national security in which a prior restraint on publication is appropriate.69 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.70 The court concluded that the government met its heavy burden of showing justification for the imposition of a prior restraint.71 Suppression of the objected-to technical portions would not impede the defendants in their efforts to stimulate public knowledge of nuclear armament.72
Issuance of the preliminary injunction does not violate defendants' First Amendment rights.73
A preliminary injunction restraining publication of the article would not violate the First Amendment prohibition on prior restraint.74