United States v. The Progressive

The court's injunction, constituting prior restraint on publication, was the first of its kind in American history.

In 1909, Robert LaFollette, the famous Progressive leader from Wisconsin, founded a monthly news magazine in Madison, Wisconsin called The Progressive. The Progressive movement enjoyed some success as a third-party movement in American politics into the 1920s, and the magazine enjoyed a wide circulation. After LaFollette's 1924 bid for the presidency, which won 16 percent of the popular vote, third parties such as the Progressives largely disappeared as a force in American politics until the 1992 campaign of H. Ross Perot. Today, the magazine has a small but loyal audience of approximately 50,000 subscribers.

In 1978, the magazine commissioned freelance writer Howard Morland to write an article concerning government secrecy in the area of energy and nuclear weapons. Energy and nuclear issues were Morland's specialty, and after months of extensive background research Morland wrote "The H-Bomb Secret: How We Got It, Why We're Telling It." On 27 February 1979 Samuel H. Day, Jr., the magazine's managing editor, sent a copy of Morland's draft to the Department of Energy's offices in Germantown, Maryland. Day asked the DOE to verify the technical accuracy of Morland's draft before the magazine published it.

John A. Griffin, DOE's director of classification, and Duane C. Sewell, assistant secretary of energy for defense programs, read the article with alarm. They determined that it contained sensitive material, material that constituted "restricted data" under the Atomic Energy Act. On 1 March 1979 Lynn R. Coleman, DOE's general counsel, phoned Day and Erwin Knoll, another editor involved in the Morland article. Coleman asked that the magazine not publish the article, stating that in addition to DOE, the State Department and the Arms Control and Disarmament Agency believed that publication would damage U.S. efforts to control the worldwide spread of nuclear weapons. The next day, Sewell met with Day, Knoll, and Ronald Carbon, the magazine's publisher.

Despite the government's efforts, on 7 March 1979 the magazine informed Coleman that it would publish the Morland article. The next day, the government sued the magazine in the U.S. District Court for the Western District of Wisconsin, and asked the court to stop publication.