"The H-Bomb Secret" (magazine article)

Type of work: Magazine article

Published: 1979

Author: Howard Morland (1942-    )

Subject matter: Description of how to construct and operate a hydrogen bomb

Significance: Publication of this article initiated a legal debate regarding governmental authority to classify information said to be vital to national security

Only a few times in U.S. history has the First Amendment’s guarantee of free expression been weighed against the government’s interest in classifying information prior to publication in order to protect national security. In 1979 the U.S. District Court for the Western District of Wisconsin faced this question when a small monthly magazine, The Progressive, scheduled for publication in its April issue an article by Howard Morland entitled, “The H-Bomb Secret: How We Got It—Why We’re Telling It.” Government officials sought to restrain publication of the article because it revealed restricted data regarding nuclear weapons production. Eventually the government dropped the case because the information in question had been published elsewhere, so the article was published in the November, 1979, issue of The Progressive as “The H-Bomb Secret: To Know How Is to Ask Why.”

Background

The Atomic Energy Act of 1954 regulates all information relating to the design, manufacture, or utilization of atomic weapons and to the production or use of nuclear material. Such information is considered to be “born secret”—classified from the moment of its conception—and it can be declassified only by the relevant governing agency—in this case, the U.S. Department of Energy. Intentional disclosure can result in penalties as severe as capital punishment.

Morland sought to demonstrate that anyone with basic scientific understanding could unravel the mystery of the hydrogen bomb—in other words, that the “secret” was no secret at all. He also intended to stimulate public knowledge and debate regarding nuclear weapons. “Secrecy itself,” Morland wrote in The Progressive, “especially the power of a few designated ’experts’ to declare some topics off limits, contributes to a political climate in which the nuclear establishment can conduct business as usual, protecting and perpetuating the production of these horror weapons.” Morland gathered material for his article from unclassified sources. Experts agreed that his information was accurate but disagreed in the matter of its potential to injure the United States. Government witnesses claimed that the article’s publication would be unprecedented and could assist others in constructing a fusion bomb; defense witnesses argued that the information was already common knowledge among scientists and was readily available in the public domain.

The District Court’s Rulings

On March 9, 1979, U.S. District Court Judge Robert W. Warren issued a temporary restraining order enjoining publication of Morland’s article, and he moved for a hearing on the issuance of a preliminary injunction as soon as possible. He reflected, “I want to think a long, hard time before I’d give a hydrogen bomb to” a foreign dictator. On March 26 Warren ruled that a preliminary injunction would be issued despite Morland’s free-speech claim. He recognized that “the question before the Court is a basic confrontation between the First Amendment right to freedom of the press and national security.” He admitted that “a large, sophisticated industrial capability” and teams of “imaginative, resourceful scientists and technicians” are necessary to produce nuclear weapons, and that therefore his prior concerns regarding the possibility of a nuclear “giveaway” had been misplaced. Nevertheless, Warren endorsed the government’s request for an injunction because “a mistake in ruling against the United States could pave the way for nuclear annihilation for us all.” He apparently agreed with the government that “the danger lies in the exposition of certain concepts never heretofore disclosed in conjunction with one another.” He was convinced that the defendants could sacrifice those parts of the article that the government had determined should be classified, without impeding their effort to enhance public understanding of nuclear weapons and to stimulate informed debate on national policy issues. He concluded that the need to protect the security of the nation outweighed the risk of infringing First Amendment rights.

Suppression of Information

As the trial unfolded, the government took unprecedented action in its zeal to classify information. Numerous briefs, affidavits, and exhibits were censored. When an investigator for the American Civil Liberties Union found highly technical reports describing hydrogen bombs publicly available at Los Alamos Scientific Laboratory, the government reclassified the documents and closed the library. Judge Warren responded to The Progressive’s request to lift the injunction by issuing an opinion that was itself classified and which the defendants were never permitted to read. The Department of Energy classified a letter written by physicists at the Argonne National Laboratory to Senator John Glenn, identifying public sources of information that revealed the alleged H-bomb secret. Seven newspapers subsequently published the letter. The department also classified a letter written by a concerned citizen, Charles Hansen, to Senator Charles Percy, summarizing technical information derived from public sources regarding the H-bomb. When the Hansen letter was published by one newspaper, several others threatened to do the same. In response, the government dropped its case and the U.S. Seventh Circuit Court of Appeals vacated the district court’s injunction. The information was liberated from classification and The Progressive published Morland’s article.

Aftermath

The government’s exercise of its broad powers to classify public and private information at will refocused public attention on censorship concerns. Many critics argued that keeping basic scientific and mathematical theories and processes secret is impossible because the inventiveness of the human mind would always outstrip the power of the censor. The real issue, these critics concluded, was the Department of Energy’s authority to withhold legitimate scientific information from the American people. Edward Cooperman of the University of California declared in his trial affidavit: “Governmental policy designed to preserve secrecy with respect to such matters not only is unsuccessful but inhibits research and obstructs the advancement of scientific knowledge.” The Charlotte Observer noted: “The day when safety was guaranteed by secrecy is long past. . . . The nuclear threat doesn’t come from magazines but from governments, including ours.” The debate contrasted the government’s authority to withhold information with the right of the press to disclose and the right of the people to know. Judge Warren offered his own contribution to that debate when he refused to vacate his opinion of March 26, 1979. “In view of the sparsity of opinions in this area, this Court believes that it is in the best interests of justice and furtherance of the development of the law that its opinions stand and be available for any Court that in the future might be presented with a similar issue.” Warren’s opinion survives; its potential to influence future judicial decisions when government censorship is challenged became a source of continuing concern among advocates of free expression.

Bibliography

Perhaps the most coherent history of post-Civil War free-speech issues in the U.S. is Margaret A. Blanchard’s Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992). Richard O. Curry has edited a series of provocative essays for those interested in the censorial authority of government in Freedom at Risk: Secrecy, Censorship, and Repression in the 1980s (Philadelphia: Temple University Press, 1988). Herbert N. Foerstel’s Secret Science: Federal Control of American Science and Technology (Westport, Conn.: Praeger, 1993) analyzes persuasive arguments against scientific secrecy and governmental censorship in general and the attempted suppression of Morland’s essay in particular. First Amendment theorist Franklyn S. Haiman, in Speech and Law in a Free Society (Chicago: University of Chicago Press, 1981), provides an enduring commentary on The Progressive case in his penetrating analysis of the consequences of government secrecy.