United States v. Progressive, Inc.

• Decision Date: 28 March 1979
• Docket Number: No. 79-C-98.,79-C-98.
• Citation: 467 F. Supp. 990
• 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

467 F. Supp. 990

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.

March 26, 1979.

Findings of Fact and Conclusions of Law March 28, 1979.

Frank M. Tuerkheimer, U. S. Atty., Western District of Wisconsin, Madison, Wis., Thomas S. Martin, Atty., 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 March 9, 1979, this Court, at the request of the government, but after hearing from both parties, issued a temporary restraining order enjoining defendants, their employees, and agents from publishing or otherwise communicating or disclosing in any manner any restricted data contained in the article: "The H-Bomb Secret: How We Got It, Why We're Telling It."

In keeping with the Court's order that the temporary restraining order should be in effect for the shortest time possible, a preliminary injunction hearing was scheduled for one week later, on March 16, 1979. At the request of the parties and with the Court's acquiescence, the preliminary injunction hearing was rescheduled for 10:00 A.M. today in order that both sides might have additional time to file affidavits and arguments. The Court continued the temporary restraining order until 5:00 P.M. today.

In order to grant a preliminary injunction, the Court must find that plaintiff has a reasonable likelihood of success on the merits, and that the plaintiff will suffer irreparable harm if the injunction does not issue. In addition, the Court must consider the interest of the public and the balance of the potential harm to plaintiff and defendants.

Jurisdiction in this action is grounded on 42 U.S.C. § 2280, the Atomic Energy Act and 28 U.S.C. § 1345.

Under the facts here alleged, the question before this Court involves a clash between allegedly vital security interests of the United States and the competing constitutional doctrine against prior restraint in publication.

In its argument and briefs, plaintiff relies on national security, as enunciated by Congress in The Atomic Energy Act of 1954, as the basis for classification of certain documents. Plaintiff contends that, in certain areas, national preservation and self-interest permit the retention and classification of government secrets. The government argues that its national security interest also permits it to impress classification and censorship upon information originating in the public domain, if when drawn together, synthesized and collated, such information acquires the character of presenting immediate, direct and irreparable harm to the interests of the United States.

Defendants argue that freedom of expression as embodied in the First Amendment is so central to the heart of liberty that prior restraint in any form becomes anathema. They contend that this is particularly true when a nation is not at war and where the prior restraint is based on surmise or conjecture. While acknowledging that freedom of the press is not absolute, they maintain that the publication of the projected article does not rise to the level of immediate, direct and irreparable harm which could justify incursion into First Amendment freedoms.

Hence, although embodying deep and fundamental principles of democratic philosophy, the issue also requires a factual determination by a federal court sitting in equity. At the level of a temporary restraining order, or a preliminary injunction, such matters are customarily dealt with through affidavits.

Thus far the affidavits filed are numerous and complex. They come from individuals of learning and renown. They deal with how the information at issue was assembled, what it means, and how injurious the affiant believes it to be.

The Court notes the amici curiae briefs filed by the American Civil Liberties Union, the Wisconsin Civil Liberties Union, the Federation of American Scientists and the Fund for Open Information and Accountability, Inc., and expresses thanks for them. The Court gave consideration to the suggestion that a panel of experts be appointed to serve as witnesses for the Court to assist it in determining whether the dangers of publication are as great as the government asserts or as inconsequential as The Progressive states. However, the Court concluded that such a procedure really would merely proliferate the opinions of experts arrayed on both sides of the issue.

Both parties have already marshalled impressive opinions covering all aspects of the case. The Court has read all this material and has now heard extensive argument. It is time for decision.

From the founding days of this nation, the rights to freedom of speech and of the press have held an honored place in our constitutional scheme. The establishment and nurturing of these rights is one of the true achievements of our form of government.

Because of the importance of these rights, any prior restraint on publication comes into court under a heavy presumption against its constitutional validity. New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

However, First Amendment rights are not absolute. They are not boundless.

Justice Frankfurter dissenting in Bridges v. California, 314 U.S. 252, 282, 62 S.Ct. 190, 203, 86 L.Ed. 192 (1941), stated it in this fashion: "Free speech is not so absolute or irrational a conception as to imply paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights." In the Schenck case, Justice Holmes recognized: "The character of every act depends upon the circumstances in which it is done." Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1931).

In Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the Supreme Court specifically recognized an extremely narrow area, involving national security, in which interference with First Amendment rights might be tolerated and a prior restraint on publication might be appropriate. The Court stated:

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." 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. Id. at 716, 51 S.Ct. at 631 (citation omitted).

Thus, it is clear that few things, save grave national security concerns, are sufficient to override First Amendment interests. A court is well admonished to approach any requested prior restraint with a great deal of skepticism.

Juxtaposed against the right to freedom of expression is the government's contention that the national security of this country could be jeopardized by publication of the article.

The Court is convinced that the government has a right to classify certain sensitive documents to protect its national security. The problem is with the scope of the classification system.

Defendants contend that the projected article merely contains data already in the public domain and readily available to any diligent seeker. They say other nations already have the same information or the opportunity to obtain it. How then, they argue, can they be in violation of 42 U.S.C. §§ 2274(b) and 2280 which purport to authorize injunctive relief against one who would disclose restricted data "with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation . . ."?

Although the government states that some of the information is in the public domain, it contends that much of the data is not, and that the Morland article contains a core of information that has never before been published.

Furthermore, the government's position is that whether or not specific information is "in the public domain" or has been "declassified" at some point is not determinative. The government states that a court must look at the nature and context of prior disclosures and analyze what the practical impact of the prior disclosures are as contrasted to that of the present revelation.

The government feels that the mere fact that the author, Howard Morland, could prepare an article explaining the technical processes of thermonuclear weapons does not mean that those processes are available to everyone. They lay heavy emphasis on the argument that the danger lies in the exposition of certain concepts never heretofore disclosed in conjunction with one another.

In an impressive affidavit, Dr. Hans A. Bethe, whose affidavit was introduced by the government and whose article, The Hydrogen Bomb: II, was a source document for Theodore Postol's affidavit I filed by the defendants states that sizeable portions of the Morland text should be classified as restricted data because the processes outlined in the manuscript describe the essential design and operation of thermonuclear weapons. He later concludes "that the design and operational concepts described in the manuscript are not expressed or revealed in the public literature nor do I believe they are known to scientists not associated with the government weapons programs."

The Court has grappled with this difficult problem and has read and studied the affidavits and other documents on file. After all this, the Court finds concepts within the article that it does not find in the public realm — concepts that are vital to the operation of the hydrogen bomb.

Even if some of the information is in the public domain, due recognition must be given to the human skills and expertise involved in writing this article. The author needed...