United States v. Progressive, Inc.
Facts
Howard Morland wrote an article for The Progressive describing the operation of a hydrogen bomb, and the magazine sent the article to the Department of Energy for technical review. DOE officials concluded that significant portions of the article contained Secret Restricted Data under the Atomic Energy Act and told the magazine that publication would injure the United States and aid foreign nations, while offering to work on recasting only the classified portions. The defendants nevertheless intended to publish unless the government obtained a restraining order. After reviewing affidavits and other materials, the court found that the article contained concepts not found in the public realm, vital to thermonuclear weapon operation, and that publication could materially reduce the time needed for certain countries to achieve thermonuclear capability.
Issue
May a federal court preliminarily enjoin publication of technical portions of a magazine article describing hydrogen bomb design and operation when the government shows the article contains Restricted Data under the Atomic Energy Act and that publication would directly, immediately, and irreparably harm national security? Does such an injunction fall within the narrow national-security exception to the usual constitutional ban on prior restraints?
Rule
A preliminary injunction may issue when the plaintiff shows a reasonable likelihood of success on the merits, irreparable harm absent relief, and when the public interest and balance of harms favor relief. Although prior restraints carry a heavy presumption against constitutional validity, a court may impose one in the extremely narrow national-security area recognized in Near when publication of restricted technical data would likely violate 42 U.S.C. § 2274(b) and cause grave, direct, immediate, and irreparable harm to the United States. The terms of § 2274(b) cover publication in a magazine, and the statute is not vague or overbroad as applied here.
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If the United States seeks a preliminary injunction stopping publication of the technical portions, which is the strongest argument for granting relief under the governing rule?