United States v. Progressive, Inc.

• Decision Date: 15 June 1979
• Docket Number: No. 79-C-98.,79-C-98.
• Parties: UNITED STATES of America, Plaintiff, v. The PROGRESSIVE, INC., Erwin Knoll, Samuel Day, Jr., and Howard Morland, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

486 F. Supp. 5

UNITED STATES of America, Plaintiff, v. The PROGRESSIVE, INC., Erwin Knoll, Samuel Day, Jr., and Howard Morland, Defendants.

No. 79-C-98.

United States District Court, W. D. Wisconsin.

June 15, 1979.

Frank M. Tuerkheimer, U.S. Atty., W. D. Wis., Madison, Wis., Thomas S. Martin, Deputy Asst. Atty. Gen., Elizabeth Gere Whitaker and Robert E. Cattanach, Attys., U.S. Dept. of Justice, Washington D.C., for plaintiff.

Earl Munson, Jr., LaFollette, Sinykin, Anderson & Munson, Madison, Wis., for all defendants except Morland.

Thomas P. Fox, Madison, Wis., for Morland.

MEMORANDUM AND ORDER

WARREN, District Judge.

On June 12, 1979, the Court heard oral argument in camera on defendants' motion to reconsider and to vacate the preliminary injunction issued by this Court on March 26, 1979.

On March 26, 1979, the Court found that the facts and circumstances in this case fall within the extremely narrow recognized area involving national security, in which a prior restraint on publication was appropriate. The Court granted the preliminary injunction pursuant to the Atomic Energy Act, 42 U.S.C. § 2280, and also found that an injunction would be warranted even in the absence of statutory authorization because of the existence of the likelihood of direct, immediate, and irreparable injury to this nation.

Defendants have filed their motion to reconsider, alleging that recent developments and publication of certain articles since the March 26, 1979 hearing have rendered the preliminary injunction moot and ineffectual.

Basically, the defendants argue that they cannot be enjoined from publishing the Morland article under either the Atomic Energy Act of 1954 or the United States Constitution because the information it contains on the three key concepts — separate stages, compression and radiation coupling — is already in the public domain. Therefore, they state that the injunction against The Progressive is ineffective in preventing other countries from learning the three essential concepts involved in hydrogen bomb design and construction.

The contention that "the secret is out" and that therefore the injunction must be lifted advances on two fronts. One contention made by the defendants is that the government itself was responsible for the declassification of portions of UCRL 4725 and UCRL 5280 with the inadvertent result that the entire documents were available to the public in the open archives of the Los Alamos Scientific Library for a period of several years. Thus, they argue that the government is now estopped from seeking to enjoin the publication of the very same information which the government itself made available.

A second contention deals with a series of non-governmental publications. Defendants cite several articles, including articles in the Milwaukee Sentinel, Fusion magazine and Encyclopedia Americana, which allegedly reveal one or all of these three key concepts. The defendants emphasize that the Milwaukee Sentinel articles, in particular, contain these concepts and were written and published in the context of this case. In light of this, defendants argue that they are authoritative documents.

The government strenuously contends that only two articles contain authoritative information on hydrogen bomb construction: UCRL 4725 and UCRL 5280. Plaintiff states these two documents were erroneously declassified and placed in the public section at the Los Alamos Scientific Library. However, when this error was discovered, these documents were immediately removed from the public shelves at the Los Alamos Scientific Library.

Plaintiff argues that all of the other articles and documents cited by defendants constitute "literature of speculation" and contain isolated bits of information which are so speculative and disjointed as to be meaningless. The government states that these articles fail to contain the accurate and uniquely detailed information on all three concepts found in the Morland article.

Plaintiff counters defendants' argument about the effectiveness of continuing the injunction against The Progressive and the other defendants by arguing that the case has not changed since the injunction was first issued. The government states that, unlike the situation in the Pentagon Papers case, no other publications have published the same or similarly accurate, comprehensive and detailed articles on the construction of hydrogen weapons. Thus, the preliminary injunction against the defendants would still be effective and is warranted under the provisions of 42 U.S.C. § 2280. The government argues that, even in the absence of this statutory authority, the injunction would still be warranted because of the existence of the likelihood of direct, immediate and irreparable injury to this country.

The Court is now faced with resolving these conflicting contentions.

Certain basic issues must be addressed by the Court. Admittedly, UCRL 5280 "reveals in a thermonuclear weapons context the three concepts which the government has described as the essential secret of the H-bomb." (Stipulation of the parties, June 11, 1979). Therefore, the Court must first determine whether documents, such as UCRL 5280 and UCRL 4725 are "in the public domain."

In Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1555, 44 L.Ed.2d 482 (1975), reh. denied, 422 U.S. 1049, 95 S.Ct. 2669, 45 L.Ed.2d 702 (1975), the court held that classified information "was not in the public domain unless there has been official disclosure of it." The court continued:

Rumor and speculations circulate and sometimes get into print. It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so. The reading public is accustomed to treating reports from uncertain sources as being of uncertain reliability, but it would not be inclined to discredit reports of sensitive information revealed by an official of the United States in a position to know of what he spoke. Id.

In this case, UCRL 4725 and UCRL 5280 were inadvertently declassified in toto. (Cucchiara Affidavit, ¶¶ 7, 8). They were available to the public at the Los Alamos Scientific Library. (Freed Affidavit, ¶ 4; Sewell Affidavit, ¶ 4)....