United States v. Progressive, Inc.

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1979 court case

United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland, 467 F. Supp. 990 (W.D. Wis. 1979),[1] 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 ".[2]

Background

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Secrecy and disclosure

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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.[3] 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.[4] 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.[5] The first copies went on sale on August 12, 1945.[6]

In its October 8, 1945, issue, _The New Republic _ took the position, emphasized with italics, that "there is no secret to be kept":[7] the knowledge of how to build an atomic bomb had been "the common property of scientists throughout the world for the last five years".[7] 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."[7] 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.[8]

Atomic Energy Act

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Further information: Atomic Energy Act of 1946

President Harry S. Truman signs the Atomic Energy Act of 1946 establishing the United States Atomic Energy Commission

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".[9]

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 .[10] Their draft bill ran into strong opposition, particularly from the influential Senator Arthur H. Vandenberg .[11] 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.[12] Section 10 assigned the patent for any invention related to atomic energy to the commission.[13]

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](htt

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