61 U. Colo. L. Rev. 55 (1990)
The H-Bomb Injunction

handle is hein.journals/ucollr61 and id is 65 raw text is: THE H-BOMB INJUNCTION
When Alexander Bickel was arguing United States v. New York
Times Co. (the Pentagon Papers Case)' before the Second Circuit, he
was asked from the bench if he could hypothesize a situation where a
prior restraint would be justified. Properly distancing himself from
the facts at hand, he offered as an example a situation where, as he
put it, the 'hydrogen bomb turns up.' 2 Eight years later, in United
States v. The Progressive, Inc. , Bickel's hypothetical entered a federal
courthouse in Milwaukee, and, as if listening to Bickel, Judge Robert
Warren issued an injunction. Even Howard Morland, the physics
dropout who could nevertheless find enough public information to fig-
ure out how an H-bomb worked (and precipitate the case), thought
that Warren had no choice.'
As with the Pentagon Papers, a conscious decision of the publish-
ers made the injunctive remedy viable. Had the New York Times pub-
lished all of the Pentagon Papers at once, an idea considered but
rejected on journalistic grounds, there would have been nothing to en-
join.5 Similarly, had The Progressive published on receipt the H-bomb
article it commissioned Morland to write, the government would have
been left with the futile remedies of either attempting to buy all ex-
isting copies or trying to punish the editors for publishing the article.
But as publication neared, Erwin Knoll, The Progressive's editor, per-
ceived that a confrontation with the government would be better than
* Edward Clark Centennial Professor of Law and Government, The University of Texas. This
article is excerpted from my forthcoming book THE AMERICAN PRESS AND THE CONSTITUTION (Uni-
versity of California Press 1991). I would like to thank my colleagues Doug Laycock and Sandy Levin-
son for their helpful comments on my earlier drafts.
1. 444 F.2d 544 (2d Cir. 1971), rev'd, 403 U.S. 713 (1971). The Court reversed a Second Circuit
decision reversing and remanding a district court judge's decision to deny a preliminary injunction
against a series of articles discussing the origins and decisions of United States policy involving the
Vietnam War up through 1967. In a per curiam decision the Court ruled the government had not met
its burden of showing the necessary justification for a prior restraint on freedom of expression.
2. Abrams, The Pentagon Papers Case a Decade Later, NEW YORK TIMES MAGAZINE, June 7,
1981, at 22, 78.
3. 467 F. Supp. 990 (W.D. Wis. 1979).
4. H. MORLAND, THE SECRET THAT EXPLODED 22 (1981). At least at the stage of the tempo-
rary restraining order: I cannot really fault Judge Warren. Id. at 156.

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