U.S. v. The Progressive: 1979

The magazine's attorney was Earl Munson, Jr., and the government was represented by Thomas S. Martin and Frank M. Tuerkheimer. On March 9, the day after the suit was filed, Judge Robert W. Warren in Milwaukee, Wisconsin issued a temporary restraining order against the magazine until a preliminary injunction hearing could be held on March 16, 1979. The hearing was delayed for 10 days, however, and took place on March 26, 1979.

At the hearing, Knoll testified that, despite the government's concerns, the article would actually benefit the United States by promoting public debate free of secrecy:

[I am] totally convinced that publication of the article will be of substantial benefit to the United States because it will demonstrate that this country's security does not lie in an oppressive and ineffective system of secrecy and classification but in open, honest, and informed public debate about issues which the people must decide.

Judge Warren was in a bind. Under the First Amendment, the injunction that the government wanted constituted a prior restraint on publication, which is difficult to justify legally because of the principle that the law isn't broken until an illegal act is actually committed, not before. However, the government had presented very strong evidence that the Morland article would contribute to the spread of nuclear know-how. Warren balanced the two considerations, and came down on the government's side:

A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights. If a preliminary injunction is issued, it will constitute the first instance of prior restraint against a publication in this fashion in the history of this country, to this Court's knowledge. Such notoriety is not to be sought.…

[But] 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.

Therefore, Warren signed a preliminary injunction restraining the magazine, its editors, and Morland from "publishing or otherwise communicating, transmitting, or disclosing in any manner any information designated by the Secretary of Energy as Restricted Data contained in the Morland article." The injunction would last until a full trial could be held.

Having won the first litigation battle, the government ultimately lost the legal war. Inspired by the publicity surrounding the case, other publications such as Scientific American began to run articles related to the H-bomb and nuclear power. Neither the Morland article nor any other article, however, contained much more than a general description of how nuclear weapons work and were devoid of the many intricate technical details necessary to design an actual weapon, much less build one. Rather than begin a massive and probably unpopular litigation against the press, the government dropped its proceedings against The Progressive before the trial and the Morland article was published. Nevertheless, Warren's injunction, imposing a prior restraint on the article's publication, was the first of its kind in American history.