United States v. The Progressive (The H-Bomb Article)

[mildfate]

United States v. Progressive (W.D. Wis. 1979)

Was the government right to use "prior restraint" to keep "The H-Bomb Secret: How we got it, why we're telling" from being published?

Should the government be allowed to censor some speech or none at all?

Should the decision on speech's censorship be based on speech's intent or impact?

 

[molten_dragon]

Like any right, the freedom of speech only extends until it interferes with the rights of others. Any speech that violates the rights of others is acceptable to censor. See the 'yelling fire in a crowded theater' example. I believe that releasing certain types of classified military/government documents interferes with the rights of others as well, and as such is okay to censor.

As far as the specific case above goes, I'm not sure. I wasn't really in the mood to read through the decision.

 

[RightinNYC]

United States v. Progressive (W.D. Wis. 1979)

Was the government right to use "prior restraint" to keep "The H-Bomb Secret: How we got it, why we're telling" from being published?

Absolutely. Not only was it a much more serious threat than was at issue in the Pentagon Papers case, but there was a specific law on the books making it a crime to release this information. If the case hadn't been mooted, it was entirely possible that the government could have won 8-1 in the Supreme Court.

Should the government be allowed to censor some speech or none at all?

The government should have the authority to censor speech where that speech is particularly dangerous.

Should the decision on speech's censorship be based on speech's intent or impact?

Primarily on impact, though intent will of course come into play around the margins.

 

[mildfate]

I believe that releasing certain types of classified military/government documents interferes with the rights of others as well, and as such is okay to censor.

Sorry, how does this interfere with the rights of others?

 

[mildfate]

The government should have the authority to censor speech where that speech is particularly dangerous.

How and why is this article dangerous?

 

[RightinNYC]

How and why is this article dangerous?

It was dangerous because it included a plethora of information about the construction of nuclear weapons

 

[mildfate]

It was dangerous because it included a plethora of information about the construction of nuclear weapons

So what? Please explain why this is bad.

Since you are not fully explaining yourself, I'll continue to ask clarifying questions.

Your position is that if the article is published, harm to Americans is imminent and likely, no?

 

[RightinNYC]

So what? Please explain why this is bad.

The court found that the government properly asserted its authority under the AEA to prevent publication, on the grounds that publication of that information would harm the government's efforts at preventing proliferation and foreign development of nuclear weapons. Under the law, that's enough.

Since you are not fully explaining yourself, I'll continue to ask clarifying questions.

My apologies, I wasn't aware that this was an exam.

Your position is that if the article is published, harm to Americans is imminent and likely, no?

My position is that in light of the government's assertions and the content of the material, it was not unreasonable for the court to come out this way. The fact that up to eight members of the SC would have agreed further supports that conclusion.

 

[mildfate]

The court found that the government properly asserted its authority under the AEA to prevent publication, on the grounds that publication of that information would harm the government's efforts at preventing proliferation and foreign development of nuclear weapons. Under the law, that's enough.

Do you believe the AEA is constitutional?

My apologies, I wasn't aware that this was an exam.

Now you are. :roll:

My position is that in light of the government's assertions and the content of the material, it was not unreasonable for the court to come out this way. The fact that up to eight members of the SC would have agreed further supports that conclusion.

To say they, "would have agreed" is a little silly--they didn't.

Which of the government's assertions do you agree with?
What about the content of the material make you think the court's decision was unreasonable?

 

[RightinNYC]

Do you believe the AEA is constitutional?

Yes.

To say they, "would have agreed" is a little silly--they didn't.

No sillier than a lower court trying to determine whether its decision fits within the high court's precedents. Based on the decisions in the Pentagon Papers case, I think it's pretty clear how this case would have come out on appeal.

Which of the government's assertions do you agree with?

Their assertion that the material was restricted within the meaning of the AEA and that publication of the material would result in a significant harm to the country.

What about the content of the material make you think the court's decision was unreasonable?

I don't think the court's decision was unreasonable. I think they got it right.

Now you are. :roll:

If you want to have productive debates that invite people to join in, be civil.

 

[mildfate]

I would've liked to have a debate on the constitutionality of the article's censorship but it doesn't look like that's going to happen.

 

[RightinNYC]

I would've liked to have a debate on the constitutionality of the article's censorship but it doesn't look like that's going to happen.

I explained numerous reasons why I believe it was constitutional. If you want a debate, why don't you explain why you think I'm wrong?

 

[Scarecrow Akhbar]

As stated, the little irrelevant pissant countries (we can call them "Iran") should be required to spend as much of their efforts going down blind alleys as we can make them.

Yes, national security trumps the First Amendment. Maintaining control of nuclear weapons technology is a national security issue.

 

[Scarecrow Akhbar]

I would've liked to have a debate on the constitutionality of the article's censorship but it doesn't look like that's going to happen.

It's constitutional to censor classified material.

Debate over.

 

[mildfate]

I explained numerous reasons why I believe it was constitutional. If you want a debate, why don't you explain why you think I'm wrong?

I was trying to, but I don't know why you think it's constitutional.

I don't believe it's constitutional to perform prior restraint on the article let alone censor it. The freedom of press is protected under the First Amendment: "Congress shall make no law. . .abridging the freedom of speech, or of the press."

Moreover, everything in the article is in the public domain--anyone with a little bit of knowledge in basic science could formulate the same conclusions Morland did. Why should the assemblage of the information be treated any different than the information in different places?

Lastly, to say that the publication of the article will endanger U.S. national security is silly. The money and technical resources needed to make the H-bomb are far beyond the capabilities of most nations--an atomic bomb is only a small part in the production of a hydrogen bomb.

 

[mildfate]

It's constitutional to censor classified material.

Debate over.

That may be true, but you've made an incorrect assumption. None of the information in the article was classified.

 

[mildfate]

As stated, the little irrelevant pissant countries (we can call them "Iran") should be required to spend as much of their efforts going down blind alleys as we can make them.

Yes, national security trumps the First Amendment. Maintaining control of nuclear weapons technology is a national security issue.

One of the arguments the government used was that if it was published it "would irreparably damage the national security of the United States by aiding foreign nations in developing thermonuclear weapons and so increasing the risk of thermonuclear war." It's been a decade since the article's publication. Can you point to me where this prediction has come true?

 

[RightinNYC]

I was trying to, but I don't know why you think it's constitutional.

I don't believe it's constitutional to perform prior restraint on the article let alone censor it. The freedom of press is protected under the First Amendment: "Congress shall make no law. . .abridging the freedom of speech, or of the press."

That doesn't mean that Congress cannot limit any speech.

Moreover, everything in the article is in the public domain--anyone with a little bit of knowledge in basic science could formulate the same conclusions Morland did. Why should the assemblage of the information be treated any different than the information in different places?

This was an interesting quirk in the case, but it doesn't change the analysis. The focus is not on how the information was gathered, but what its impact would be if it were published and what that publication would contain.

Lastly, to say that the publication of the article will endanger U.S. national security is silly. The money and technical resources needed to make the H-bomb are far beyond the capabilities of most nations--an atomic bomb is only a small part in the production of a hydrogen bomb.

Which is what the defendants argued. The court chose to believe the government instead. I can't say that they were wrong to do so, given the government's expertise and authority in the area of foreign relations and national defense.

That may be true, but you've made an incorrect assumption. None of the information in the article was classified.

It was restricted material under the definition of the AEA.

 

[RightinNYC]

One of the arguments the government used was that if it was published it "would irreparably damage the national security of the United States by aiding foreign nations in developing thermonuclear weapons and so increasing the risk of thermonuclear war." It's been a decade since the article's publication. Can you point to me where this prediction has come true?

First, it's been 31 years, not a decade. Second, the fact that it did not harm us (or that we are not aware that it harmed us) is irrelevant to the question of whether it was reasonable for the court to hold that the government met its burden at the time that it heard the case.

 

[mildfate]

That doesn't mean that Congress cannot limit any speech.

True, but I don't believe the line to be drawn on what speech is acceptable and not should be drawn to allow censorship of speech of this kind unless it can be expressly proven that people's lives are immediately in danger because of it--like yelling fire in a movie theater.

This was an interesting quirk in the case, but it doesn't change the analysis. The focus is not on how the information was gathered, but what its impact would be if it were published and what that publication would contain.

Why is the impact any different than if the information was just floating around? Either way the information is there for anyone to obtain. If a political party didn't have the information to build a hydrogen bomb but wanted it, I can guarantee you they wouldn't wait for an article like this to be published; they'd do their own research.

Which is what the defendants argued. The court chose to believe the government instead. I can't say that they were wrong to do so, given the government's expertise and authority in the area of foreign relations and national defense.

Fine. The argument is that the likelihood of thermonuclear war would go up if the article is published. I would argue the opposite. If one country, the U.S., has h-bombs and another does not, the other country is probably fairly afraid of the U.S.; tensions between the two would be high and the likelihood of a thermonuclear war would go up for the other country. If both "sides" had the same caliber of weaponry, the situation seems much safer; one would have to understand the consequences of starting a thermonuclear war with other countries that have thermonuclear weapons. In a way, if other nations have h-bombs, they are protected from us, consequently lowering likelihood and evening the playing field.

It was restricted material under the definition of the AEA.

One of the sources Morland cited was his college physics text book. Should that textbook be taken out of schools and banned under the grounds it's restricted material?

 

[mildfate]

First, it's been 31 years, not a decade.

You're right.

Second, the fact that it did not harm us (or that we are not aware that it harmed us) is irrelevant to the question of whether it was reasonable for the court to hold that the government met its burden at the time that it heard the case.

True, but from here out, should we rely as heavily on assumptions like the one made by the government and accepted by the court?

 

[RightinNYC]

True, but I don't believe the line to be drawn on what speech is acceptable and not should be drawn to allow censorship of speech of this kind unless it can be expressly proven that people's lives are immediately in danger because of it--like yelling fire in a movie theater.

Which is essentially what the court held.

In the Near case, the Supreme Court recognized that publication of troop movements in time of war would threaten national security and could therefore be restrained. Times have changed significantly since 1931 when Near was decided. Now war by foot soldiers has been replaced in large part by war by machines and bombs. No longer need there be any advance warning or any preparation time before a nuclear war could be commenced.

In light of these factors, this Court concludes that publication of the technical information on the hydrogen bomb contained in the article is analogous to publication of troop movements or locations in time of war and falls within the extremely narrow exception to the rule against prior restraint.

Because of this "disparity of risk," because the government has met its heavy burden of showing justification for the imposition of a prior restraint on publication of the objected-to technical portions of the Morland article, and because the Court is unconvinced that suppression of the objected-to technical portions of the Morland article would in any plausible fashion impede the defendants in their laudable crusade to stimulate public knowledge of nuclear armament and bring about enlightened debate on national policy questions, the Court finds that the objected-to portions of the article fall within the narrow area recognized by the Court in Near v. Minnesota in which a prior restraint on publication is appropriate.

The government has met its burden under section 2274 of The Atomic Energy Act. In the Court's opinion, it has also met the test enunciated by two Justices in the New York Times case, namely grave, direct, immediate and irreparable harm to the United States.

Why is the impact any different than if the information was just floating around? Either way the information is there for anyone to obtain. If a political party didn't have the information to build a hydrogen bomb but wanted it, I can guarantee you they wouldn't wait for an article like this to be published; they'd do their own research.

The fact that the information could be obtained in other ways is irrelevant. The point is that the article contained particular technological information which fell within the restrictions of the AEA and according to the government, posed a grave danger to the country.

Fine. The argument is that the likelihood of thermonuclear war would go up if the article is published. I would argue the opposite. If one country, the U.S., has h-bombs and another does not, the other country is probably fairly afraid of the U.S.; tensions between the two would be high and the likelihood of a thermonuclear war would go up for the other country. If both "sides" had the same caliber of weaponry, the situation seems much safer; one would have to understand the consequences of starting a thermonuclear war with other countries that have thermonuclear weapons. In a way, if other nations have h-bombs, they are protected from us, consequently lowering likelihood and evening the playing field.

And that's a completely plausible political analysis. However, that's not the only plausible analysis. The court found the argument made by the government to be more compelling.

One of the sources Morland cited was his college physics text book. Should that textbook be taken out of schools and banned under the grounds it's restricted material?

No, unless the textbook's material was itself sufficient to constitute restricted material, which I very much doubt.

True, but from here out, should we rely as heavily on assumptions like the one made by the government and accepted by the court?

I don't think that the fact that the worst case scenario didn't come to pass in this one case means that the government's assertions should be ignored going forward. The government is the only one with the expertise in most of these areas.

 

[mildfate]

Which is essentially what the court held.

I understand what the court decided. I want to know what you and other people think. Obviously I can't argue with something that was already decided. Instead of telling me what the court did, formulate and defend your own opinions. *Not trying to be condescending*

The fact that the information could be obtained in other ways is irrelevant. The point is that the article contained particular technological information which fell within the restrictions of the AEA and according to the government, posed a grave danger to the country.

Great, and did you know that in Maine it's illegal to catch a lobster with your bare hands? Do you believe all those in Maine who've done so should be fined? Just because there exists a law doesn't mean you have to agree with it. Just because the government said it posed a grave danger to the country doesn't mean you have to believe it. What do you think on the matter?

And that's a completely plausible political analysis. However, that's not the only plausible analysis. The court found the argument made by the government to be more compelling.

Do you think it was more compelling?

No, unless the textbook's material was itself sufficient to constitute restricted material, which I very much doubt.

What do you mean? If the textbook was specifically on thermonuclear physics, would that constitute restricted material?

I don't think that the fact that the worst case scenario didn't come to pass in this one case means that the government's assertions should be ignored going forward. The government is the only one with the expertise in most of these areas.

No, but they should be looked at a little more skeptically. Really, what do you think the chances of the world blowing itself up is if the article is published?

 

[RightinNYC]

I understand what the court decided. I want to know what you and other people think. Obviously I can't argue with something that was already decided. Instead of telling me what the court did, formulate and defend your own opinions. *Not trying to be condescending*

I understand what you're asking, but I don't know what you're really expecting. I think that the court's analysis was by and large correct. Were I on a 7th Circuit panel hearing this case, I would vote to affirm with little or no comment.

Great, and did you know that in Maine it's illegal to catch a lobster with your bare hands? Do you believe all those in Maine who've done so should be fined?

Of course. If the law is bad, it should be repealed. If not, it should be enforced.

Just because there exists a law doesn't mean you have to agree with it. Just because the government said it posed a grave danger to the country doesn't mean you have to believe it. What do you think on the matter?

I think the government got it right as well, given its role within our constitutional system. Congress recognized the danger of this material and passed a law preventing its publication. The executive agreed with this law and sought to prevent the publication in this instance. Since those are the two bodies with the most expertise in matters such as this, I would defer to their judgment.

Do you think it was more compelling?

Yes, because your analysis ignores the fact that there were already other nations who had this information. Whatever deterrent benefit would be achieved from going from one nation with nukes to two already existed. I believe that allowing more nations to develop nukes would have a negative effect on efforts to control proliferation and would increase the chance of rogue nations gaining power.

What do you mean? If the textbook was specifically on thermonuclear physics, would that constitute restricted material?

I'm saying that the fact that he cited his textbook as one of his sources does not mean that the material in the textbook was in and of itself restricted material.

No, but they should be looked at a little more skeptically. Really, what do you think the chances of the world blowing itself up is if the article is published?

I don't know. It doesn't really matter because that's not my call to make - it's the province of the legislature and the executive.