The H Bomb Case

Legal Arguments Against Judge Warren

In an April 1995 interview, Bill Leuders asked Judge Warren about his decision 16 years earlier. In rather confused remarks, he maintained that he had made the right decision at the time and was disappointed the government had dropped its case.1

On the other hand, Erwin Knoll continued to defend freedom of speech and press up to his death in November of 1994. In fact, his last published words were in an article addressing the H-Bomb case in which he pointed out that the legal costs of defending freedom of the press would have bankrupted the magazine but for the reduced legal fees charged by their lawyers and financial assistance provided by the American Civil Liberties Union.2 He added that if he were to face that situation again, he would go ahead and publish and face the consequences.3

Thomas Martin, the government’s lead lawyer on the case remarked some years later, “[T]he decision whether to initiate prior restraint litigation is extraordinarily difficult….In almost every case the toughest, most hard-headed, realistic, and effective action the government can take is to decide to do absolutely nothing.”4

Legal scholars have overwhelmingly agreed that Judge Warren’s decision was legally flawed and would have been overturned had the government not dropped its case. Why? What problems do they see in Judge Warren’s decision? Consider a few examples:

Jonathan Entin: Judge Warren committed at least four serious errors; he “misapplied [the Times] standard, failed to consider the more complete discussion of prior restraints contained in Nebraska Press Association v. Stuart5…ignored several important…developments in first amendment jurisprudence”6 and “exhibited poor judgment in failing to require an evidentiary hearing” that would have resolved some of the public domain and risk questions involved in the case.7

Judge James L. Oakes:8 Judge Warren erred in using speculative harm and should not have granted an injunction against publication simply on the basis of affidavits and documents.

John Cary Sims:9 Judge Warren misapplied the New York Times precedent in two ways. First, he incorrectly dismissed it as dealing with past harm whereas The Progressive involved future harm.10 In point of fact, “the Government’s efforts to suppress publication of the Papers focused on the potential harm that disclosure would cause in the future” to our relationships with allies who acted as “go-betweens” in negotiations with North Vietnam and to the successful release of American POW’s. Second, Warren misapplied the “grave, direct, and irreparable” standard. In Times, the justices clearly indicated that standard applied only to speech that would cause direct and immediate harm, neither of which the government established. The article’s harm, if any, was not immediate since Warren feared Morland’s article might cause (not would cause) damage. It was not direct harm since Warren feared Morland’s article would speed nuclear proliferation, not that it would instigate nuclear war. “The court’s departure from principles of Pentagon papers [is] nothing other than error. A district court has no authority to revise Supreme Court precedent even if the district court judge understands the dimensions of the prior holding, which Judge Warren clearly did not in dealing with the Pentagon Papers.”11

Jeffery Smith: “The folly of prior restraint in such circumstances not only is that it confirms and advertises secret material and does not prevent others inside or outside of the country from publishing the information, but also that it promotes the illusion—but only an illusion—of enhanced safety.”12

Follow-up Note 1: In 1989 the United States government attempted once again to use the “born secret” doctrine in the Oliver North trial involving the Iran-Contra cover up. Prosecutor Michael Bromwich said material may be classified and considered a government secret even though it is published in the newspapers and known in public. Thus, information can be classified even if it is in private hands and has no classification stamp on it (i.e., the material is “born secret”). U.S. District Judge Gerhard Geller rejected the idea.

Follow-up Note 2: The government attempted to censor Howard Morland’s diagram of an H-bomb in 1979, but Richard Rhodes used the diagram (Morland said, “a rip off of my diagram; he’s redrawn it!”) in his 1987 book The Making of the Atomic Bomb, which won a 1988 Pulitzer Prize.

Follow-up Note 3: In 1988, Gary Goyke, a Wisconsin political lobbyist, sought a prior restraint order against publication of a Milwaukee Magazine article describing his illegal lobbying practices. He was unsuccessful.

Notes

1 Leuders, pp. 185-6, 191, 198-9.

2 For an analysis of the financial costs of prior restraint litigation and the chilling effects it has on a free press, especially in the Progressive case, see John Soloski and Carolyn Stewart Dyer, “The Cost of Prior Restraint: U.S. v. The Progressive,” Communications and the Law (April 1984), pp. 3-23. Soloski and Dyer figure the magazine’s legal expenses added up to $240,000, p. 10, even though their attorney’s fees were at a substantially reduced rate and did not bill for all hours spent on the case. They also discuss the enormous demands on time and energy imposed by the lawsuit and offer a series of recommendations on the issue of insurance coverage for legal actions against the press in First Amendment contexts. Bill Leuders puts the cost at $248,000. See Leuders, p. 176.

3 Knoll (1994), p. 713.

4 Martin, pp. 684-5.

5 427 U.S. 539 (1976).

6 Entin, p. 546.

7 Entin, p. 557.

8 Oakes, pp. 517-18.

9 John Cary Sims, “Triangulating the Boundaries of the Pentagon Papers,” 2 William & Mary Bill of Rights Journal 341 (Winter, 1993), pp. 421-425. Sims notes that in oral argument before the Second Circuit in the Times case, the Times lawyer Alexander Bickel, when asked to give an example of speech where prior restraint might be justified in the absence of an applicable statute, suggested “a case possibly where the hydrogen bomb turns up.” Oral Argument, United States v. New York Times Co., 444 F.2d, 544 (2 nd Cir. 1971), (No. 71-1617) at 44-45 (June 22, 1971), from Sims, footnote 286. See also L.A. Powe, p. 55. Howard Morland reports that Daniel Ellsberg, the man who provided the Pentagon Papers to the Times and Post consistently said in his speaking engagements after his flap with the law that if anything should be kept secret it should be nuclear weapons design materials. Morland (1981), p. 144.

10 This error was repeated in many newspaper accounts of the case. See, e.g., Wisconsin State Journal, Oct. 18, 1979.

11 Sims, footnote 297.

12 Smith, p. 464.