The H Bomb Case

Introduction

“Which amendment is it that guarantees freedom of the press? Well, I’m against it.”

Joseph Hendrie, Chair of the Federal Nuclear Regulatory Commission, during a secret meeting about what to tell the public about the Three Mile Island radiation leak.1

Although we have freedom of speech, there are plenty of controversies about what exactly this means. There are nearly thirty clarifications just of the Wisconsin law.2 One area of great importance and interest is freedom of the press. What rules should apply to newspapers and magazines, television and movies, and radio? This is serious business: In January, 2004 the federal communications Commission (FCC) fined Clear Channel Communications $755,000 for obscene comments made by its employees during a radio show broadcast between 6:30 and 9 a.m. on four of its Florida stations.3

Perhaps the most important guarantee of a free press is a prohibition on prior restraint. What is a prior restraint? “A prior restraint is a restriction on a communication before it is published enacted by the executive, legislative or judicial branch of the federal, state or local government.”4 Well, why is that so important?

In 1643, the English Parliament passed a law empowering a Committee of Examinations “to regulate printing: that no book, pamphlet, or paper shall be henceforth printed, unless the same be first approved and licensed by such, or at least one of such, as shall be thereto appointed.”5 The purpose of the law, of course, was to censor criticisms of the government. This law was used to stifle and punish our American forefathers, who had plenty of complaints about their English rulers, and it was at least in part because of that law that the First Amendment was proposed and ratified—our founding fathers did not want the American press to have to get a government stamp of approval to publish.6 They sought to promote “responsibility in government by ensuring that the Government does not…[cover up] its errors, deceptions, or embarrassments,” and to encourage robust public debate of issues and information sharing.7

So it was a surprise to many people when the very first case of federal judicial restraint of the press in 203 years of American history occurred here in Wisconsin in March of 1979 when a federal judge decided in U.S. v Progressive8 to grant a government request to ban publication of an article on the H-bomb by a small-circulation political magazine named The Progressive based in Madison.9 Bill Leuders reports that “[m]ore than one million words have been published about The Progressive’s H-bomb controversy.”10 It is the subject of several books, a stage play, a Hollywood script, a great many magazine and journal articles, and it retains top billing in many textbook discussions of law and journalism.11 This was during the Cold War between the United States and the Soviet Union, and our government believed that the article would reveal vital secrets of national defense to our enemies. The government also argued that in the 1931 case Near v. Minnesota,12 our United States Supreme Court had established that the government had the right to stop publication of information vital to national defense.

In Near, however, the Supreme Court said, “The liberty of the press…consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”13 So Minnesota cannot stop publication of Mr. Near’s Saturday Press newspaper it deems “malicious, scandalous, or defamatory,” although it can after publication prosecute any libel printed therein. The presumption against prior restraint is so strong the issue did not arise again in federal court until 1971 when the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers. In that case the Supreme Court allowed the publication of classified information about the Vietnam War, insisting that the government would be justified only if the threat to national security were direct, imminent and grave.14

So why did the Wisconsin judge support a prior restraint of the press? What were his reasons? What did the article actually say? Why did the government find it so threatening to national security? Why did the magazine want to publish an article on the H-bomb? And what does this have to do with us today? Let’s find out.

Notes

1 Reported in Nat Hentoff, “The Secrecy That Kills,” Village Voice, May 7, 1979.

2 http://folio.legis.wi.us

3 Eau Claire Leader-Telegram, Wednesday, January 28, 2004, p. 3A.

4 As characterized by Judge James L. Oakes in “The Doctrine of Prior Restraint Since the Pentagon Papers,” 15 University of Michigan Journal of Law Reform 497 (1982), p. 498.

5 See, e.g., Knoll, May ’79, p. 6.

6 This presumption is well documented as applied to the federal government. “From the earliest days of the republic, any system of prior restraint on expression has been viewed with the utmost skepticism.” Jonathan L. Entin, p. 538. The Supreme Court has called it “the most serious and least tolerable” limitation on first amendment freedoms, Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976). The story is more complicated in the case of state governments. For a review of prior restraint in state courts, see Margaret A. Blanchard, “Filling the Void: Speech and Press in State Courts Prior to Gitlow,” in Bill Chamberlain and Charlene Brown (eds.), The First Amendment Reconsidered—New Perspectives on the Meaning of Freedom of Speech and Press (Longman, 1982), pp. 14-59.

7 Oakes, p. 499.

8 United States v. Progressive Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland 467 F.Supp. 990 (W.D. Wis 1979), dismissed without opinion, 610 F. 2d. 819 (7th Cir. 1979).

9 In 1978, the magazine had a paid circulation of 33,375. Statement of Ownership, Management and Circulation, reprinted in The Progressive (Dec. 1978), p. 60. Soloski and Dyer report that The Progressive had turned a profit in only year of its existence, 1954, when it sold 200,000 reprints of an article on Senator Joseph McCarthy.

10 Leuders, p. 120.

11 See, for example, Sammye Johnson and Patricia Prijatel, Magazine Publishing (Lincolnwood, Il.: NTC/Contemporary Publishing Group, 1999), pp. 270 ff.

12 Near v. Minnesota 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.1357 (1931). The main issue in the case involved a Minnesota statute used to ban a newspaper from continuing publication. The Court struck down the statute as an unconstitutional infringement of freedom of press. However, in dicta (side comments), the majority opinion indicated, “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 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 or transports or the number and location of troops.” U.S. at 716, S.Ct. at 631. Hughes also specifically identifies obscenity and incitements to violence or revolution.

13 Near at 713, quoting the great English jurisprude William Blackstone’s Commentaries on the Laws of England, Vol. 4, pp. 151-2 (1769). Although state courts had made decisions against prior restraint (see Blanchard) Near was the first U.S. Supreme Court decision on prior restraint. Some commentators maintain that Near expanded the common understanding of freedom of press by ruling out not only government licensing (approval) schemes but also judicial injunctions. (Helle, p. 838). L.A. Powe comments that Near simply established in law what everyone already assumed in practice. Powe, p. 57.

14 New York Times v. United States 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). Writing about this case Ben Bagdikian cautioned that it “probably signalizes not the triumphant end but the start of a struggle.” Soper, p. 9.