If I Ruled on United States v. Progressive

The below is a sample of some of Evan’s work conducted while an undergraduate in college.

The lower court’s decision of United States v. Progressive is a challenging one because it involves the absolute suppression of speech, something the framers of the Constitution were determined to establish, never to be abridged. The lower court ruled that the United States’ argument for prior restraint was effective and correct in its concern for national security. If this ruling is upheld, it would be the first such ever prior restraint initiated in the United States, a heavy burden for any court who finds it within their rights to limit the sovereignty of the press.

In this specific case, Howard Morland, a freelance journalist, has crafted an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” This article explained how to build and detonate a hydrogen bomb. It was set for publication in a magazine titled Progressive. Morland sent the article to the Department of Energy to confirm some facts in the case before publishing it.

Upon reviewing the document, the Department of Energy ruled that it violated the Atomic Energy Act – specifically Section 2274 and 2014. These statutes read that no one can communicate, transmit, or disclose “any restricted data to any person ‘with reason to believe such data will be utilized to injure the Untied States or to secure an advantage to any foreign nation.’” Restricted data is classified as data “concerning design, manufacture, or utilization of atomic weapons…”

There are four specific cases that have occurred in the United States’ history that can help shed light on what the appropriate ruling is. The earliest is Schenk v. United States, which may offer the best in-depth look as to whether or not the United States’ attempted prior restraint on Progressive is indeed constitutional. There is a famed passage from the decision, which was delivered by Justice Holmes. Holmes said: “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Since then, this test has been used to determine whether or not the First Amendment has been violated in countless free speech or free press issues. In Schenk v. United States, Charles Schenk was found to have violated the Espionage Act of 1917 by exhorting to men not to abide by the draft. He was constitutionally convicted of encouraging insubordination, which is not protected under the veil of free speech. This case also outlined the difference between peacetime and wartime. Justice Holmes draws this distinction by saying that “”[w]hen 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.”

This defines the fact that when a nation is at war, citizens must abide by rules that are unnecessary in peacetime. What we hold dear in peacetime may not be acceptable in wartime. Near v. Minnesota, argued in 1931, takes this thought and attempts to expound on it. Justice Hughes cited the wartime argument of Schenk v. United States and then followed that up with a clearer definition. As delivered in the opinion of the Court:
“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.”

This now has defined a clear and present danger to an example of publishing the number and location of troops, which could severely hinder the war effort, in addition to imperiling the lives of United States citizens.

The clear and present danger definition again reared its head in 1941, in Bridges v. California. A telegram sent by a union official, Harry Bridges, to the United States Secretary of Labor was published in California newspapers. The telegram contained a threat by Bridges that the union would strike if the judge’s decision on a labor dispute was upheld in the appeal of said case.

Justice Black delivered the opinion, saying that prior restraint of journalists was unconstitutional, unless there was a “clear and present danger to the administration of justice.” While the quote was specifically towards pretrial coverage of journalists, this can be used in many other instances as well. Black continued to state that the clear and present danger standard was “a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”

The final precedent we must speak about before tying all the cases into United States v. Progressive is the famed ‘Pentagon Papers’ case, otherwise known as New York Times Co. v. United States, argued in 1971. In this case, the government brought suit against both the New York Times and Washington Post in separate district courts to exercise prior restraint over the publication of a 7,000 page paper on how the United States got involved in the Vietnam War. The United States Supreme Court offered a per curiam opinion, stating only that the Court ruled in favor of the New York Times. Each of the nine justices had differing opinions on how the Court should rule and why. Justice Brennan espoused on how this case did not meet the qualifiers set forth in Near v. Minnesota.

Our cases …have indicated that there is a single, extremely narrow class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden. … Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature … Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient … every restraint issued in this case, whatever its form, has violated the First Amendment … the First Amendment commands that no injunction may issue.

The most important quote here to tie in with United States v. Progressive is that the suppression of information would be justified if it were to “set in motion a nuclear holocaust” but that mere conclusions simply cannot suffice for prior restraint – let alone an “interim restraining order.”

These cases together speak of a ‘clear and present danger’ standard, established with Schenk v. United States. In Near v. Minnesota, examples of troop movements in wartime being published were deemed acceptable for prior restraint, for it would cause the sure death of United States citizens. In Bridges v. California, it was found that the “degree of imminence” of a “substantive evil” had to be beyond a reasonable doubt of happening immediately. The substantive evil certainly qualifies as a hydrogen bomb, which is a clear danger. But where is the present danger? In New York Times v. United States, it was determined that presupposition is not enough to justify prior restraint. Again, a clear and present danger must exist.

It is clear that the content of the material to be published in Progressive is volatile. Any time one presumes to publish material directly related to a weapon of mass destruction, proper caution must be taken. At this current time, only five other nations other than the United States have the capability of detonating a hydrogen bomb. Clearly, the United States is painfully aware of the ramifications of detonating said bombs because the United States were the pioneers of the hydrogen bomb. The fear of reprisal certainly has to be high, but the bomb was detonated in a time of war. We are currently in a time of peace, the current hostility between the United States and Russia notwithstanding.

Russia has hydrogen bomb capability, so it is not a matter of protecting the United States from Russia. Thus, this is a time of peace for the United States and every other nation, even those who could stand to profit from this article to build a hydrogen bomb. However, one must consider the fact that if a freelance reporter is able to cull facts and technical information from public and unclassified sources, then top scientists of a nation should be able to do the same.

The lower court judge encouraged both sides to come to an amicable agreement on the deletion of technical facts in the article. However as the Progressive lawyer articulated in the argument of which I heard, rights of citizens or the press should not be taken away simply from a fear. Even the mere compromise of taking out technical facts could contribute to a chilling effect, which is a form of prior restraint in and of itself. As Section 2274 of the Atomic Energy Act states, no one can communicate, transmit, or disclose “any restricted data to any person ‘with reason to believe such data will be utilized to injure the Untied States or to secure an advantage to any foreign nation.’”
This magazine is not intending to injure the United States or secure an advantage for a foreign nation, so they are not violating the Act. They are not providing it to a specific person intent on destroying the United States, but providing it to the public to engage in an informed debate about the ethics, horrors, and other implications of a hydrogen bomb.

Publishing this article will not immediately send an hydrogen bomb hurtling to the United States from some unknown nation, for this is a time of peace – and as uttered in Schenk v. United States, things said in time of peace are more forgivable than when said in a time of war. A clear and present danger does not exist. The knowledge of how to create a hydrogen bomb is already present in at least five nations, and has been available to a freelance reporter in the United States. It does not violate the Atomic Energy Act, for if data needs to be restricted, it ought to be classified as well. Progressive is not attempting to injure the United States, nor give it to a nation intent on injuring the United States.

A simple way to exhibit clear and present danger with a substantive evil with immediate harm can easily be solved by asking a simple question: Will this publication immediately harm the lives of innocent citizens? Whether or not we are talking a hydrogen bomb killing hundreds of thousands or a new gun that is used on a singular person, the question must be asked. Any and all documents can only have prior restraint attached to it if the harm after the publication is swift and devastating. If in wartime there is such a document, the immediacy of the harm does not have to be as swift as in peacetime, but the devastation that would result still would have to hold true.

The issue of the Atomic Energy Act being unconstitutional also comes at stake here. You cannot restrict any other kind of free flow of information or data if it is not classified. Hindering people from utilizing information not classified violates freedom of speech. While the constitutionality of the Atomic Energy Act is not on trial, information that is not classified should not be restricted from being debated in an open forum. If an article being published utilizes classified data, then an argument is certainly in place for prohibiting said article to be published. However, if no classified data is used, then the article is certainly within constitutional rights to be published, unless of course, the standard of clear and present danger is established. Abridging any other information to be spoken about is unconstitutional.

In conclusion, the government does not illustrate how there is a clear and present danger towards the publishment of the hydrogen bomb article in Progressive. Thus, judgment is


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