Lesson Plans

H-Bomb Case

Table of Contents

These educational materials concerning the H-Bomb case and freedom of the press, including teacher background information, the text of the judicial decision itself, resources, potential activities and discussion questions are prepared by Dr. Tim Shiell, UW-Stout, Wisconsin’s Free Speech Legacy.

 Teacher Background—The H-Bomb Decision and a Free Press

Both the U.S. and Wisconsin Constitutions guarantee freedom of the press, but there are many questions about what exactly this means, and one of the most important freedom of the press cases in American history involved an attempt by a Wisconsin monthly magazine to publish sensitive information about the making of the H-bomb.

Perhaps the most important guarantee of a free press is a prohibition on prior restraint.1 In 1643, the English Parliament passed a law empowering a Committee of Examinations “to regulate printing: that no book, pamphlet, or paper shall be henceforth printed, unless the same be first approved and licensed by such, or at least one of such, as shall be thereto appointed,”2 thereby censoring critics of the English government. Our American forefathers intentionally rejected such a law in ratifying the First Amendment. Rather than require the press to get a government stamp of approval, our nation sought to promote responsibility in government by allowing the press to reveal its errors, deceptions, and embarrassments, and engaging in robust public debate.3

It was a major event, then, when the very first case of federal judicial restraint of the press in 203 years of American history occurred here in Wisconsin in March of 1979 when a judge granted a government request to ban publication of an article on the H-bomb by The Progressive, a small-circulation political magazine based in Madison.4 The U.S. government believed the article would reveal vital secrets of national defense to our enemies and that in 1931 the U.S. Supreme Court had established that the government had the right to stop publication of information vital to national defense. 5 In that case the court said, “The liberty of the press…consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”6 In other words, Minnesota could stop publication of Near’s Saturday Press newspaper even if it is “malicious, scandalous, or defamatory;” however, after publication it may prosecute any libel printed therein. In fact, the presumption against prior restraint is so strong that the issue did not arise again in federal court until 1971 when the Nixon administration tried to stop the New York Times and Washington Post from publishing the Pentagon Papers. In that case the Supreme Court allowed the publication of highly classified information about the Vietnam War, insisting that the government would be justified only if the threat to national security were direct, imminent and grave.7

In this case, the government managed to convince the initial judge to issue a restraining order. However, within six months many problems in the government’s position were exposed and it dropped its case against publication before it went to the appeals court.

Notes

1 Judge James L Oakes: “A prior restraint is a restriction on a communication before it is published enacted by the executive, legislative or judicial branch of the federal, state or local government, “ in “The Doctrine of Prior Restraint Since the Pentagon Papers,” 15 U. of Mich J of Law Reform 497 (1982), p. 498.

2 See, e.g., Knoll, May ’79, p. 6.

3 “From the earliest days of the republic, any system of prior restraint on expression has been viewed with the utmost skepticism.” Jonathan L. Entin, p. 538. The Supreme Court calls prior restraint “the most serious and least tolerable” limitation on first amendment freedoms, Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976). The story is more complicated in the case of state governments. For a review of prior restraint in state courts, see Margaret A. Blanchard, “Filling the Void: Speech and Press in State Courts Prior to Gitlow,” in Chamberlain and Brown (eds.), The First Amendment Reconsidered—New Perspectives on the Meaning of Freedom of Speech and Press (Longman, 1982), pp. 14-59.

4 United States v. Progressive Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland 467 F.Supp. 990 (W.D. Wis 1979), dismissed without opinion, 610 F. 2d. 819 (7th Cir. 1979). In 1978, the magazine had a paid circulation of 33,375 and had only turned a profit once in its history, 1954, when it sold 200,000 reprints of an article on Senator Joseph McCarthy.

5 Near v. Minnesota 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.1357 (1931). The Court struck down the relevant Minnesota statute as an unconstitutional infringement of freedom of press. However, in dicta the majority said, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard as protected by any constitutional right. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates or transports or the number and location of troops.” U.S. at 716, S.Ct. at 631. The court also said prior restraint is justified when publications involve obscenity or incitements to violence or revolution.

6 Near at 713, quoting the pre-eminent William Blackstone’s Commentaries on the Laws of England, Vol. 4, pp. 151-2 (1769). Although state courts had ruled against prior restraint (see Blanchard) Near was the first U.S. Supreme Court decision to address prior restraint. Some commentators maintain that Near expanded the common understanding of freedom of press by ruling out not only government licensing (approval) schemes but also judicial injunctions. (Helle, p. 838). L.A. Powe comments that Near simply established in law what everyone already assumed in practice. Powe, p. 57.

7 New York Times v. United States 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).

Text of Judge Warren's Decision

[coming soon]

Resources:

For a detailed presentation of the facts of the case, analysis of the legal issues, and citations to a wide variety of newspaper, magazine and law review comments on the case see Shiell, Wisconsin’s Free Speech Legacy, “The H-Bomb Case.”

Potential Activities

1. Have students read Judge Warren’s decision and then individually or in groups answer the study questions for class discussion.

2. Form student groups to evaluate Judge Warren’s reasons supporting censoring the article. Have each group state and defend whether it agrees with their assigned reason or not and how their view would apply in a modern setting.

3. Form student groups to state the strongest argument they can supporting publication of the article, that is, why the government should not be allowed to ban the article. Then do a mock trial re-trying the case. When the mock trial is over, have students write a paper stating what they learned from the case.

4. Have students read a rebuttal to Judge Warren. Then, individually or in groups, have students evaluate the two sides and present and defend their opinion about which view is stronger and why.

5. Have students do research another freedom of the press case and compare the two cases. Have them—individually or in groups—answer the question: When is the government justified in censoring a publication?