U.S. v Progressive (1979) is an often overlooked case that dramatized the conflict between freedom of the press and the need for national security. The U.S. Department of Energy sued The Progressive, a liberal magazine, because of Howard Morland’s article, “The H-Bomb Secret: How We Got It, Why We’re Telling It.” Based on the law of equity, the DOE sought temporary injunction and the government thwarted publication with a restraining order. Even though Morland wrote the article based on public sources, the government thought they should stop publication because it contained information of sensitive nature. Soon after the lawsuit arose, government lawyers ruled it moot it because Milkweed published it. They dropped the case because they could only lose here; they could no longer censor the atom bomb information, and they did not want to lose their privilege to pull back information and classify it.
In addition, the question of prior restraint in this case remains unanswered. Generally, prior restraint has been widely unconstitutional as exemplified in the Pentagon Papers case. However, in U.S. v Progressive, the Atomic Energy Act specifically allowed for injunctions. This was basically a free pass for the government to reclassify anything they wanted. I think Morland had a right to have his works published. He was seeking a critical public debate—something the First Amendment should protect. His political ideas were unfavorable to the government and appeared to be on a trajectory to prior restraint. I believe when Congress says they shall make no law abridging the freedom of speech, it includes prior restraint. We have to balance our free speech with the protection of national security; however, I have to wonder at what point the “classified” documents become cover-ups for what is really politically embarrassing or deceptive. It’s shocking to me that SCOTUS considered prior restraint in this case, because Near v. Minnesota declared it unconstitutional. There are few circumstances that government censorship should be considered, such as obscenity around children or imminent danger. I want the opportunity to hear all differing opinions. I believe in seeking truth, not just ideas that complement mine. I am thankful we live in a land of subsequent punishment because ideas should at least have the opportunity to be heard before we determine whether or not they should be punished.
SOURCES: Wikipedia: “U.S. v. Progressive,” Encyclopedia.com, law.justia.com