United States v . The Progressive United States of America v . Progressive , Inc . , Erwin Knoll , Samuel Day , Jr . , and Howard Morland , 467 F . Supp . 990 ( W . D . Wis . 1979 ) , 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 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 clearance s , which would put restraints on their free speech , and so were not present at the " in camera " hearings . Their lawyers did obtain clearances so that they could participate , but were forbidden from conveying anything they heard there 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 restraint s " . Background . Secrecy and disclosure . 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 . 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 . 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 . The first copies went on sale on August 12 , 1945 . In its October 8 , 1945 , issue , " The New Republic " took the position , emphasized with italics , that " " there is no secret to be kept " " : the knowledge of how to build an atomic bomb had been " the common property of scientists throughout the world for the last five years " . 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 . " 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 . Atomic Energy Act . 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 " . 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 . Their draft bill ran into strong opposition , particularly from the influential Senator Arthur H . Vandenberg . 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 . Section 10 assigned the patent for any invention related to atomic energy to the commission . 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 Director J . Edgar Hoover , Secretary of State James F . Byrnes and Groves were called to appear . Groves revealed that the British physicist Alan Nunn May had passed information about the Manhattan Project to Soviet agents . The more conservative elements in Congress now moved to toughen the act . Section 10 , which was formerly titled " Dissemination of Information " , now became " Control of Information " . Representative Helen Gahagan Douglas , who sponsored the McMahon bill in the House , vigorously defended the section against counterarguments . She dismissed objections that it would " give away the secret of the bomb " , asserting that America ' s advantage in nuclear weapons could only be temporary , whereas the bill could perpetuate the U . S . lead in scientific research . Truman signed the compromise bill into law as the Atomic Energy Act of 1946 . It established the Atomic Energy Commission ( AEC ) as the controlling body for atomic energy . Hydrogen bomb . The Manhattan Project had been a crash program to produce a nuclear weapon . Along the way , promising ideas had been set aside . Norris Bradbury , who replaced J . Robert Oppenheimer as director of the Los Alamos National Laboratory in late 1945 , revived such projects in order to entice scientists to remain at , or return to , Los Alamos . One of these projects was the " Super " , a nuclear weapon using nuclear fusion , which Edward Teller ' s F - 1 group had worked on under Fermi ' s direction . The technical problem was figuring out a way to get a fusion reaction to initiate and propagate , which required temperatures attainable only with a fission bomb . The hydrodynamic calculations involved were daunting , and ENIAC was used to run a computer simulation of the Super in December 1945 and January 1946 . The Polish mathematician Stanislaw Ulam , his wife Francoise Ulam , who performed the calculations , and their collaborator , Cornelius Everett , worked on the Super design through 1949 . There was no push from the military for the weapon , because the AEC regarded it as too secret to inform either its own Military Liaison Committee or the Armed Forces Special Weapons Project about it . In September 1949 , the Soviet Union detonated a nuclear device . It fell to Oppenheimer , as chairman of the AEC General Advisory Committee ( GAC ) , to decide whether the United States should develop the Super in response . The Super design used large quantities of tritium , which could only be manufactured in a reactor , and therefore at the expense of plutonium production for smaller weapons , so the GAC advised against it . Nonetheless , Truman approved the Super on January 31 , 1950 . Because of the secrecy surrounding the decision , accounts published in the 1950s incorrectly portrayed Oppenheimer as obstructing its development on political grounds , and this was a factor in the Oppenheimer security hearing in 1954 . Ulam still only gave the design a " 50 – 50 chance " of success in February 1950 . At the end of March , he reported that it would not work at all . Scientists like Hans Bethe and George Gamow felt that Teller had committed the nation to an expensive crash program on the basis of a model that he knew was flawed . However , in February 1951 , Ulam had a new idea , in which the shock wave from an atomic bomb " primary " stage , through an arrangement he called " hydrodynamic lensing " , would compress a " secondary " stage of deuterium fusion fuel wrapped around a plutonium rod or " spark plug " . On being informed , Teller immediately grasped the potential for using the X - rays produced by the primary explosion for hydrodynamic lensing . This arrangement , which made thermonuclear weapon s possible , is now known as the Teller - Ulam design . Although it was not what Truman had approved , the design did work , and was capable of producing multi - megaton explosions . " Rarely in the history of technology " , wrote Howard Morland , " has such a seemingly daunting problem turned out to have such a nifty solution . " In 1950 , the Atomic Energy Commission asked " Scientific American " not to publish an article by Hans Bethe that it claimed revealed classified information about the hydrogen bomb . " Scientific American " reluctantly agreed to stop the presses and make changes in the article , and to recall and burn the 3 , 000 copies that had already been printed . The 1951 arrest of Klaus Fuchs , Harry Gold , David Greenglass , Morton Sobell and Julius and Ethel Rosenberg who , according to Hoover , " stole the basic secrets of nuclear fission " , caused great concern . President Dwight D . Eisenhower denied the Rosenbergs clemency on the grounds that their actions " could well result in the deaths of many , many thousands of innocent citizens " , and they were executed . After the Soviet Union detonated Joe 4 in August 1953 , newspapers proclaimed that the Soviets had tested a hydrogen bomb . In fact it was only a boosted fission device , but the veil of secrecy covering the thermonuclear program prevented scientists from informing the public . Prior restraint . Prior restraint has generally been regarded by U . S . courts , particularly the U . S . Supreme Court , as being " the most serious and least tolerable " of restrictions on the First Amendment . The Blackstone Commentaries defined freedom of the press in the United States as " laying no " previous " restraints upon publication , and not in freedom from censure for criminal matter when published . " The Supreme Court had however never held that prior restraint was unconstitutional . On the contrary , in " Near v . Minnesota " 283 U . S . 697 ( 1931 ) , Chief Justice Charles E . Hughes remarked that in wartime , " 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 . " He further suggested that obscenity or incitement to insurrection would be similar grounds for prior restraint . The court subsequently upheld free speech exceptions such as restrictions on demonstrations in " Cox v . New Hampshire " , 312 U . S . 569 ( 1941 ) , and censorship of motion pictures in " Times Film Corp . v . City of Chicago " , 365 U . S . 43 ( 1961 ) . In " New York Times Co . v . United States " 403 U . S . 713 ( 1971 ) — better known as the Pentagon Papers case — the government had sought to prevent the publication of classified material by " The New York Times " . In this case , the Supreme Court ruled 6 – 3 that the government had not reached the standard required by " Near " to justify prior restraint , but the concurring justices gave differing opinions about where the line should be drawn . In his opinion , Justice Potter Stewart wrote that while publication of " The Pentagon Papers " would likely harm the national interest , it would not result in " direct , immediate or irreparable harm to our Nation or its people " . Failure to provide a clear line inevitably meant that the court had to deal with prior restraint on a case - by - case basis . In " Nebraska Press Association v . Stuart " , 427 U . S . 539 ( 1976 ) , the court was called upon to decide whether news reportage of a lurid mass murder case in a small town in Nebraska would justify prior restraint in order to protect the defendant ' s right to a fair trial . In this case , the court ruled unanimously that it would not . Most of the justices viewed " Near " as providing the only grounds for prior restraint , and declined to expand its scope any further . Trial . Morland ' s research . " The Progressive " was a left - wing American monthly magazine of politics , culture and opinion with a circulation of around 40 , 000 . In 1978 , its managing editor , Sam Day , Jr . , a former editor of the " Bulletin of the Atomic Scientists " , and its editor , Erwin Knoll , commissioned freelance journalist Howard Morland to write an article on the secrecy surrounding nuclear weapons production in America . In October 1978 , Representative Ronald V . Dellums had asked the Department of Energy ( DOE ) , the successor to the AEC , a series of questions about plutonium production . The DOE responded by classifying his questions . In September and October 1978 , the House Armed Services Committee held hearings on the proposed Comprehensive Nuclear - Test - Ban Treaty . There was widespread public ignorance of issues surrounding nuclear weapons , and associated environmental concerns . Day and Morland hoped that by demystifying nuclear weapons , they would promote more critical public debate , and improve the prospects for nuclear disarmament . Morland claimed that " I am precisely the type of person the First Amendment was intended to protect : a political advocate whose ideas are unpopular with the general public and threatening to the government . " Over a period of six months , Morland systematically pieced together a design for a hydrogen bomb . He visited a number of nuclear weapons facilities and interviewed government employees , with the permission of the DOE , usually identifying himself and his purpose . He never held a security clearance , and never had any access to classified documents , although it is possible that some classified information or ideas were accidentally or deliberately leaked to him . His scientific background was minimal ; he had taken five undergraduate courses in physics and chemistry taken as part of his Bachelor of Arts degree in economics at Emory University . Morland identified the features of the Teller - Ulam design as staging , with a primary and secondary compression around a fissile " sparkplug " , and radiation pressure from soft X - rays . " The notion that X - rays could move solid objects with the force of thousands of tons of dynamite " , noted Morland , " was beyond the grasp of the science fiction writers of the time . " Day sent draft copies of Morland ' s article out to reviewers in late 1978 and early 1979 , including Ron Siegel , a graduate student at Massachusetts Institute of Technology . Siegel gave his draft copy to George Rathjens , a professor of political science there in February 1979 . For many years , Rathjens had issued a challenge to his graduate students to produce a workable design for a hydrogen bomb , but no one had ever succeeded . Rathjens phoned " The Progressive " and urged that the article not be published . When the editors dismissed his suggestion , he sent the draft to the DOE . " Apparently , " wrote Morland , " I had earned a passing grade on the Rathjens challenge " . Legal arguments . In March 1979 , the editors sent a final draft to the DOE for comment . DOE officials , first in phone calls and then in person , attempted to dissuade " The Progressive " from publishing the article on the grounds that it contained " secret restricted data " as defined by the Atomic Energy Act . " The Progressive " ' s editors were not persuaded , and told the officials that they intended to proceed with publishing Morland ' s article . The DOE filed a motion to suppress the article with the United States District Court for the Western District of Wisconsin in Madison on March 8 , 1979 . There was only one judge in the Western District of Wisconsin at the time , Judge James Doyle , but he 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 , and heard by Warren in Milwaukee . Lawyers for " The Progressive " voluntarily underwent security reviews and were granted Q clearance s that allowed them to access restricted nuclear information . Morland and " The Progressive " ' s editors declined to obtain clearances , as they would have had to sign non - disclosure agreements that would have prevented them from publishing the article . This resulted in the lawyers being restricted in their communications with their clients . In seeking a temporary restraining order , government lawyers argued that " The Progressive " was about to break the law , causing irreparable harm . The data in the article was born classified , so it did not matter that it was an original work of the author . They noted that prior restraint had been upheld by the courts before in matters of national security , and argued that the " Pentagon Papers " decision did not apply as the Atomic Energy Act specifically allowed for injunctive relief . Moreover , the Pentagon Papers were historical , whereas the hydrogen bomb was a current military weapon . Finally , they pointed out that the government had obligations under the Nuclear Non - Proliferation Treaty not to assist non - nuclear states in acquiring nuclear weapons . In granting the temporary restraining order on March 9 , Warren said that he would have " to think long and hard before I gave the hydrogen bomb to Idi Amin . " Dr . James R . Schlesinger , the Secretary of Energy , telephoned leading newspapers and warned them not to support " The Progressive " . This was probably unnecessary , for the media were supportive of the government ' s case . Fred Graham , the " New York Times " ' s legal correspondent , predicted that the government would win the case . In an editorial on March 11 , 1979 , " The Washington Post " wrote that the " The Progressive " case , " as a press - versus - government First Amendment contest , is John Mitchell ' s dream case — the one the Nixon Administration was never lucky enough to get : a real First Amendment loser . " The newspaper called on " The Progressive " to " forget about publishing it " . In the " Pentagon Papers " case , Professor Alexander Bickel , an expert on the United States Constitution , when asked hypothetically if prior restraint could ever be justified , had told the court that he would draw the line at the hydrogen bomb . Daniel Ellsberg , who had leaked the Pentagon Papers , told Morland that he believed that nuclear weapon designs should be kept secret . Because of the horrific nature of thermonuclear weapons , and the expectation that " The Progressive " would probably lose the case , mainstream media organizations feared that the result would be an erosion of freedom of the press . However , the court ' s role was to rule on whether publication was legal , not whether it was wise . In keeping with the usual practice of keeping a temporary restraining order in effect for as short a time as possible , Warren ordered that hearings be held on a preliminary injunction in one week ' s time , on March 16 . At the request of both parties , this was postponed to March 26 so they would have time to file their briefs and affidavits . The parties were therefore back in court again on March 26 for a hearing on the government ' s request for a preliminary injunction . Warren decided not to hold an evidentiary hearing at which the opposing teams of experts could be cross examined . He also declined a suggestion by the Federation of American Scientists in its " amicus curiae " brief that a panel of experts be charged with examining the issue . The case relied on written affidavits and briefs , and the opposing counsels ' oral arguments . " The Progressive " ' s legal team argued that the government had not established a case sufficient " to overcome the First Amendment ' s presumption against prior restraint " . The article was based upon information in the public domain , and was therefore neither a threat to national security nor covered by the Atomic Energy Act , which in any case did not authorize prior restraint , or was unconstitutional if it did . In this , counsel relied on the " United States v . Heine " decision , in which Judge Learned Hand ruled that information in the public domain could not be covered by the Espionage Act of 1917 . The government ' s lawyers argued , on the contrary , that there was sensitive information in the article , which was not in the public domain , and which , if published , would harm arms control efforts . In attempting to apply the " Near " and " Pentagon Papers " standards , the court was concerned about the prospect of publication causing the proliferation of nuclear weapons , and potentially a global nuclear holocaust . The government did not go so far as to claim that publication might pose an immediate or inevitable danger , only that it " would substantially increase the risk that thermonuclear weapons would become available or available at an earlier date to those who do not now have them . If this should occur , it would undermine our nonproliferation policy , irreparably impair the national security of the United States , and pose a threat to the peace and security of the world . " However , the court still found that " a mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all . In that event , our right to life is extinguished and the right to publish becomes moot " , and that publication could indeed cause " grave , direct , immediate and irreparable harm to the United States " , thereby meeting the test the Supreme Court had enunciated in the " Pentagon Papers " case . The preliminary injunction was therefore granted . Lawyers for " The Progressive " filed a motion to vacate the decision on the grounds that the information contained in Morland ' s article was already in the public domain . The basis for this claim was two reports from the Lawrence Livermore National Laboratory UCRL - 4725 , " Weapons Development During June 1956 " , and UCRL - 5280 , " Weapons Development During June 1958 " , which contained detailed information on thermonuclear weapon design . The documents gave details about " Bassoon " , a three - stage thermonuclear device tested during Operation Redwing in 1956 . They were found on the shelves of the Los Alamos library by Dmitri Rotow , a researcher for the American Civil Liberties Union . According to the government , the reports had been inadvertently declassified . On June 15 , in 486 F . Supp . 5 ( W . D . Wis . 1979 ) , Warren therefore denied the motion on the grounds that such an error did not place the documents in the public domain . The appellants , in 610 F . 2d 819 ( 7th Cir . 1979 ) , immediately appealed to the Seventh Circuit Court of Appeals in Chicago , claiming that the two documents had been on the shelves for a considerable period of time . The government now advanced the argument that " technical data " was not protected by the First Amendment . The motions for an expedited review were denied because the magazine ' s lawyers had waived that right — something Morland and " The Progressive " editors discovered only from the court . The preliminary injunction therefore remained in effect for six months . Case dropped . On April 25 , 1979 , a group of scientists who worked at the Argonne National Laboratory wrote to Senator John Glenn , the Chairman of the United States Senate Subcommittee on Energy , Nuclear Proliferation and Federal Services . They were concerned about information being leaked , in particular by the government ' s tacit acknowledgement that Morland ' s bomb design was substantially correct , something that could not otherwise have been deduced from unclassified information . These included the affidavits by the United States Secretary of Defense Harold Brown and government expert witness Jack Rosengren . Copies of the letter were sent to major newspapers , but with a cover note explaining that it was for background information and not publication . After about four weeks , the Glenn subcommittee forwarded it to the DOE , which classified it . Unaware of this , Hugh DeWitt , a physicist at the Lawrence Livermore nuclear weapons laboratory , forwarded a copy to Chuck Hansen . Hansen was a computer programmer from Mountain View , California , who collected information about nuclear weapons as a hobby . He had run a competition to design an H - bomb , the winner of which would be the first person to have their design classified by the DOE . It now began to occur to him that his hobby might not be legal . He wrote a letter to Senator Charles H . Percy detailing how much information he had deduced from publicly available sources . This included his own design , one not as good as Morland ' s , which Hansen had not seen . Hansen further charged that government scientists — including Edward Teller , Ted Taylor , and George Rathjens — had leaked sensitive information about thermonuclear weapons , for which no action had been taken . In this , Hansen was mistaken : Taylor had indeed been reprimanded , and Teller was not the source of the information that Hansen attributed to him . Hansen made copies of his letter available to several newspapers . When " The Daily Californian " published excerpts from the Hansen letter on June 11 , the DOE obtained a court order to prevent further publication . Undeterred , " The Daily Californian " published the letter in its entirety on June 13 . The DOE obtained a temporary restraining order against " The Daily Californian " prohibiting publication , but the letter was published by the " Madison Press Connection " on September 16 . The government then moved to dismiss their cases against both " The Progressive " and " The Daily Californian " as moot . Legacy . Morland ' s article was published in the November 1979 issue of " The Progressive " . A month later he published an errata in " The Progressive " with updates based on information that he had gathered during the trial from UCRL - 4725 , Chuck Hansen ' s letter and other sources . In Morland ' s opinion , the article contributed to a wave of anti - nuclear activism in the late 1970s and early 1980s that resulted in , amongst other things , the closure of the Rocky Flats Plant near Denver . Chuck Hansen went on to publish a book , " U . S . Nuclear Weapons : The Secret History " in 1988 . This was subsequently expanded to a self - published five volume work entitled " Swords of Armageddon " . However , many mainstream media organizations still remained reluctant to test the law by publishing . On September 30 , 1980 , the Justice Department issued a statement that it would not prosecute alleged violations of the Atomic Energy Act during the " Daily Californian " or " The Progressive " cases . Hearings on the case were held by Glenn ' s subcommittee and by the House Subcommittee on Government Information and Individual Rights . The subcommittees looked into the implications of the decision with regards to nuclear proliferation . They also examined the doctrine of " classified at birth " , but did not decide to amend the Atomic Energy Act to remove such provisions . As it turned out , fears of nuclear proliferation were unfounded . While over the course of the next 25 years some countries , such as Pakistan and North Korea , ultimately developed nuclear weapons , while others , such as Iraq and Libya , tried and failed , no other countries managed to develop thermonuclear weapons . From a legal standpoint , the case " proved to be a victory for no one " , due to the indecisive nature of its conclusion . Yet it remains a celebrated case nonetheless . In 2004 , the 25th anniversary of the decision was commemorated with an academic conference at the Benjamin N . Cardozo School of Law , attended by many of the participants , at which papers were presented . 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 . "