THE HEART OF THE FIRST AMENDMENT'

...It is that vice — the deterrent effect on the First Amendment freedoms of others — that should most forcefully compel the conclusion that the pertinent provisions of the Act are void for vagueness and overbreadth____ For the foregoing reasons, the preliminary injunction should be reversed, and the case remanded to the district court with directions to dismiss the complaint immediately...

...By the time the New York Times case reached the Supreme Court, several newspapers that had not been sued had begun to publish excerpts from the same documents which the government sought to prevent the Times and Washington Post from publishing...

...is not simply unnecessary...

...Perhaps in tacit recognition of its inability to meet that test, the Government has contended that the Act provides alternative and less demanding authorization for prior restraint...

...In reaching its decision, the district court improperly balanced the competing interests at stake in this case...

...Indeed, it is clear that "if [as here] Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved____" Under the Government's construction of the Act, defendants had "reason to believe" publication would violate the Act because the Government told them so...

...The complaint alleges that the information in the Morland article will be utilized to "secure an advantage" to a foreign nation____That phrase is inherently broad and vague...

...The defendants' scientific affiants are exceptionally well-qualified, but it would not even take a scientist of their caliber to derive the "secret" of the H-bomb without access to classified documents...

...He investigated...

...In the article submitted to the district court with the complaint on March 9, 1979, DOE bracketed passages of the Morland article, totaling 2,190 words, to indicate they fell within the definition of "Restricted Data...

...American courts have no control over what these other countries or their scientists and engineers do with the "secret...

...Congress, however, cannot abrogate the Constitution...

...Excerpts from some of the friend-of-the-court briefs filed in support of The Progressive by various newspapers, magazines, and media organizations were published in the July issue...

...The Court long ago recognized that the constitutional presumption against prior restraint lies at the very core of the First Amendment: " [I] t has been generally, if not universally, considered that it is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication...

...At least five countries have fusion weapons today, and a sixth has exploded a fission device...

...Morland has destroyed the aura of secrecy surrounding nuclear weapons, and once that illusion has been stripped away, others can easily follow his example...

...He became familiar with the industry's parlance, and he laced his questions with assumptions and facts seeking confirmation or correction...

...The sweep of the statute is automatic and boundless, encompassing all information as defined above, regardless of its source or purpose...

...This unlimited discretion claimed by the Government under the Act is incompatible with First Amendment freedoms...

...Published on these pages are excerpts from the appeals brief filed by The Progressive's attorneys — Gordon Sinykin, Earl Munson Jr., Brady C. Williamson, and Timothy J. Muldowny of the firm of LaFollette, Sinykin, Anderson, and Munson...

...During oral argument, the United States conceded that equity would not permit a futile injunction: "Mr...

...The library was ordered closed after one of defendants' experts discovered a report, declassified by the Atomic Energy Commission in July 1975, that discusses the three concepts, and much more, in great detail...

...In New York Times Co...

...It did so largely because it was "unconvinced" that defendants needed to publish the information in the article, concluding that "The Progressive...

...The Government has used that definition to argue that all information, all knowledge — theoretical or practical — is classified automatically and remains so until the Government declassifies it...

...It cannot do so because the defendants had no'' reason to believe'' that publication of information already in the public domain would violate the Act...

...Footnotes and legal citations have been omitted...

...DOE knew of his research and assisted him in acquiring the data it now wants censored...

...Moreover, if prior inquiry must be made of the Government, then a de facto administrative censorship system is created with the attendant dangers of suppression for "improper" political motives...

...They believe publication will provide the people with needed information to make informed decisions on an urgent issue of public concern...

...does not really require the objected to material in order to ventilate its views on Government secrecy and the hydrogen bomb...

...That is precisely the kind of political speech sheltered from Government censorship by the First Amendment...

...That concept would create a system of thought control and peacetime censorship without parallel in our history...

...In light of the substantive standards that must be applied, the district court's findings of fact are insufficient on their face to warrant prior restraint...

...It would last at least until every nation in the world had acquired fusion weapon capability____ The Government has not demonstrated that publication will result in grave and irreparable damage to the country...

...In less than a week, the Government had reduced the number of classified words, the amount of "Restricted Data," by 40 percent...

...Five days later, the Government submitted another copy of the article to the district court and to the defendants...

...Stripped of its legal form, the Government's position is that the United States must have the right to keep some secrets, that three concepts described in the Morland article are secret, and that only the imposition of prior restraint will ensure that they remain so...

...The district court's reliance on this incorrect legal standard is so inconsistent with the First Amendment, and so basic to the court's decision, that for this reason alone the preliminary injunction should be reversed____ The Government has staked its case to the Atomic Energy Act...

...The district court has based its decision, at least in part, on the provisions of the Act...

...The Morland article, argues the Government, unlike similar information concededly in the public literature, is not subject to any doubts about authenticity because the Government has publicly certified its accuracy...

...bears a "heavy burden" in attempting to overcome that presumption...

...The Government has relied heavily on the Act, and the district court found that publication "would likely constitute" a violation of the Act...

...This case itself illustrates the lack of predictability and obvious uncertainty inherent in the classification process under the Act and its impact on the defendants...

...The Act, moreover, cannot be used to enjoin protected speech and conduct because its provisions are vague and overbroad, constitutionally invalid...

...The "risk that thermonuclear weapons would become available or available at an earlier date to those who do not now have them," a risk of unspecified date or dimension, is no more sufficient to support prior restraint than the "risk" that publication of the Pentagon Papers would lead to the deaths of American soldiers in Southeast Asia, which the Government asserted would follow — but did not — upon publication of the Pentagon Papers____ The most the Government's affidavits demonstrate, even if true, is that publication of the Morland article would increase the risk of the proliferation of nuclear weapons capability, not the actual proliferation of nuclear weapons or the increased risk of their use...

...Under that definition, all information respecting atomic weaponry, special nuclear material, and its use in the production of energy, is characterized as "Restricted Data...

...The preliminary injunction was issued even though there is no allegation or proof that any of the information was unlawfully acquired...

...Justice White, joined by Justice Stewart, emphasized in words of striking application to this case that he rejected the Government's request for an injunction at least in part because of its failure to prove the injunction would be effective: "So here, publication has already begun and a substantial part of the threatened damage has already occurred...

...B]ut the barriers to prior restraint remain high and the presumption against its use continues intact...

...be published...

...The Government cannot obtain an injunction under the Act or under the Constitution without first proving that the information in the article is in fact secret...

...DELETED] Ralph S. Hager and Calvin G. Andre, physicists at Lawrence Livermore, agreed that a group of physicists could arrive at the concepts in the Morland article relying solely on information in the public domain...

...Unless the "advantage" phrase is construed narrowly, unless it is complemented by a requirement of'' bad faith," it is unconstitutionally overbroad and vague...

...The Government must prove each of these elements which constitute, as Justice Brennan noted, a "formidable" standard...

...Although the Morland article covers some twenty-eight pages, the Government now contends that only about 1,300 words involve "Secret Restricted Data" and that these words must be suppressed because their publication would reveal three central concepts or "design principles...

...When the Government seeks prior restraint on national security grounds, it bears the heavy burden of proving that publication will (1) "surely" or "inevitably" (2) result "directly and immediately" in (3) "grave and irreparable" injury to the nation or its people...

...The EDITOR'S NOTE: The U.S...

...DELETED] That incident provides an indication of the number of people who know the "secrets" of thermonuclear weapons...

...If publication would aid the United States more than it would aid a foreign nation, would the Act apply, or does the Act require net advantage to a foreign nation...

...The district court's balancing inquiry into the defendants' "need" to publish showed remarkable insensitivity to the First Amendment____The courts may have an extremely limited role in determining whether to publish, but they have no role in determining what to publish...

...However, if you had asked a good class of physics students, two or three of them would have suggested this solution...

...The Government's experts accurately describe Morland's effort as a "grab-bag of collected odds and ends," yet he came up with an article which astonished the Executive Branch...

...Theodore Postol concluded that any competent physicist who had examined the Americana diagrams would readily learn or obtain the concepts described in the Morland article "not within years, but within hours...

...A journalist's original work product, a private scientist's independent research, a university professor's deductive reasoning, all are "classified at birth," instantly characterized as "Restricted Data...

...In his affidavit here, Secretary Vance does not claim that the proliferation of nuclear weapons capability will undermine this country's nonproliferation policy, but only that the actual availability or possession of thermonuclear weapons would do so...

...Morland accomplished what the Government contends could not be done...

...Their opinions constitute a careful and deliberate rejection of a much lower "probability" standard urged by the Government, which had contended that publication should be restrained if it "could" cause immediate and irreparable harm to the nation's security...

...As the threatened harm becomes more remote in time, it becomes less certain that it will occur at all...

...Harm must be not only certain but "imminent...

...As a matter of constitutional law, the Supreme Court has ruled that prior restraint, even if otherwise appropriate, can never issue unless the Government has carried the heavy burden of demonstrating that it will be effective, and as a result, that without restraint there surely will be direct, immediate and irreparable harm to the nation...

...In repeatedly and firmly enforcing the rule against prior restraint, the Court has established an extraordinarily demanding substantive standard which must be met before protected speech can even conceivably be restrained...

...Indeed, although the district court misunderstood the standard and misquoted Justice Stewart by substituting "likely" for "surely," it apparently did not even believe the harm was likely...

...Even if the three concepts are not in the public domain, the Government's affidavits are insufficient on their face to justify prior restraint...

...As Chief Justice Burger has noted, every member of the Supreme Court agrees that prior restraints are presumptively unconstitutional...

...Far from being a blueprint for the production of a nuclear weapon, the article discusses the important political issues of nuclear proliferation and Government secrecy...

...The defendants have demonstrated that publication of the Morland article would not fall within the Act's prohibitions, properly construed...

...As construed by the Executive Branch, the Act would grant the Government unlimited discretionary power to censor speech and publication...

...Can publication of information about fusion be of any advantage to a nation unless it already has fission weapons...

...Solicitor General, in terms of equity on an injunction, however, to the extent anything has been published and has already been revealed, the United States is not seeking an injunction against further publication of that particular item...

...However, the Court found that the Government's claims and the proof offered by it failed to meet the three-part standard established by it in that case, a standard designed with the possibility of exceptionally grave damage to the national security firmly in mind...

...He learned the "secret" — not by theft, not by bribery, not by cheating, but by basicjournalistic enterprise and hard work...

...Having thereby rendered it "dangerous," the Executive Branch then asked the district court to restrain its publication...

...The penal provisions of the Act are most susceptible to "sweeping and improper" application because of the all-encompassing breadth of the definition of "Restricted Data...

...But if this Court finds them sufficient, it must examine the conflicting evidence on which those findings were based to determine if they were correct...

...Indeed, the Executive Branch's failure to prove that publication "would surely cause" the harm alleged by the Government may well have been the fatal defect in its case____ The Government's affidavits in this case, even if true, do not prove or even allege that publication will lead to "virtually certain," "sure," or "inevitable" harm...

...The district court found that publication of the article carried the "likelihood" of direct, immediate, and irreparable injury to this country...

...have been censored by the Government and barred from the public record of the Court...

...He read magazine articles, physics textbooks, environmental impact statements, Congressional proceedings, and employment brochures, and he talked with employes at plants engaged in nuclear weapons production...

...In a statement to Congress on behalf of the Executive Branch, he distinguished "the capability to manufacture or otherwise acquire nuclear explosive devices" from the "proliferation of nuclear explosive devices...

...However, this Court can find no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on an informed debate on this issue...

...Without the individual's knowledge, their communication is banned subject to the criminal sanctions of the Act...

...DELETED] There can be no more chilling a restraint on the free interchange of ideas, free speech, and a free press...

...The heart of the First Amendment' Excerpts from the appeals brief in The Progressive's prior restraint case "Defendants have stated that publication of the article will alert the people of this country to the false illusion of security created by the Government's futile efforts at secrecy...

...The First Amendment, however, was not drafted to enable any branch of government to determine what information the public "needs to know...

...In determining whether restraint will be effective, it is essential to know how much of the information is widely known...

...The requirement that the harm flow "directly and immediately" from publication ensures that prior restraint is the last resort, that there is no time to pursue "less restrictive alternatives" to avert or minimize the threatened harm...

...In publishing the article, the defendants intended to continue the public debate on nuclear weapons, nuclear proliferation, and Government secrecy...

...He consulted no classified documents, nor does the Government contend that he did...

...The district court rejected the Government's proposed finding that publication "would" cause the requisite harm and it was willing only to conclude that, at most, publication "could" or "could possibly" cause harm...

...It is a risk that will never end and, if the Government prevails, a risk that will forever justify prior restraint...

...Alexander De Volpi, a physicist at the Argonne National Laboratory, said the information in the article "is clearly subject to independent discovery either by compilation from public source documents or by inductive reasoning by scientists in technologically advanced nations...

...The distinction between nuclear weapons capability and production or use is crucial in this case because the Government's affiants claim only that publication could increase the risk of thermonuclear capability, a risk of unspecified dimension in the indefinite future...

...It is impermissible...

...As Dr...

...A separate appeals brief has been filed in behalf of Erwin Knoll, the editor of The Progressive...

...of material that the Executive Branch insists should not...

...DELETED] Perhaps Rathjens will never again talk to a student about thermonuclear weapons, but others will____ With his article, Morland has demonstrated that anyone can learn the three concepts...

...Unless construed to avoid constitutional vagueness and overbreadth, the statute's breadth and uncertainty violate due process and First Amendment rights____ No constitutional principle is more firmly established than the "heavy presumption" against the constitutionality of "[a]ny system" that imposes prior restraint on expression...

...In writing the article, Morland relied on the tools available to any journalist or individual...

...Secretary of State Cyrus R. Vance, one of the Government's affiants, has stressed the important difference between the proliferation of weapons capability and the actual proliferation of weapons...

...At the time of the Pentagon Papers decision, the country was at war...

...Where, as here, there is no evidence that a journalist "acquired the information unlawfully or even without the state's implicit approval," the courts cannot "prohibit the publication of widely disseminated information...

...DELETED] Even if thousands of people did not know the three concepts, even if journalists could not "discover" them, and even if they were not described in the public literature, competent scientists could readily derive them using current, well-known scientific principles...

...Anyway, the Russians did the very same thing...

...That case sets clear constitutional limits on the Executive's inherent power to restrain speech...

...The district court believed it was "[fjaced with a stark choice" between national security and the First Amendment, and it emphasized the "disparity of the risk involved...

...Only 1,322 words were marked "Restricted Data" in that copy...

...DELETED] The district court erroneously accepted the Government's contention that the defendants had not proved that the three concepts are in the public domain...

...Defendants submitted the affidavits of numerous physicists, including several from the Government's Livermore and Argonne laboratories, stating that the basic concepts of thermonuclear weapons are not secret but available to all who seek them...

...Although they did not have an opportunity to review the article, five other physicists agreed that the basic physical concepts underlying the design and operation of thermonuclear weapons are well-known in the scientific community____Other physicists who gave affidavits for the defendants risked their jobs to do so because they are employed at Government weapons laboratories...

...In a few words, Judge [Robert] Warren has explained the basis for his decision to issue a preliminary injunction in this case...

...If, in the process, they disclosed "secrets" —and the defendants contend they did not — it was not for the purpose of injuring the United States or providing an advantage to another nation but to inform the American public...

...The New York Times case sharply limits the Executive's inherent authority to seek judicial assistance "to prevent the publication...

...John J. McAvoy and Paul L. Friedman of the law firm of White and Case, and attorney Thomas P. Fox...

...If a willing publisher has no notice of that fact, then protected speech will be deterred through fear of punishment...

...DELETED] Thus, thousands of scientists, engineers, and technicians in at least five countries, probably more, know not only the three concepts described in the Morland article, but the much more complicated and detailed technological information needed to design and construct an H-bomb as well...

...The Supreme Court has consistently held that the Government '. . .the Government failed to prove that the information is secret...

...Because no statutory provision directs DOE to identify publicly information that has been declassified, however, only it knows whether particular information is declassified...

...They clash with the many affidavits of eminent scientists submitted by the defendants, a strong difference of views which in and of itself demonstrates that the Government has failed to meet the rigorous standards of the First Amendment...

...DELETED] It is no secret how Morland, a college graduate with little scientific training and no credentials, learned the three concepts...

...There are innumerable other students, professors, technicians, and Government employes willing to give the same kind of information to any other inquiring journalist...

...And others have...

...How much of an advantage is sufficient...

...Unlike the prior restraint hypothetically justified in Near v. Minnesota, or the restraint requested in the Pentagon Papers case, which would have ended when the wars which provided their justification ended, the restraint here would be more than prior...

...It is a discretionary power that defines criminal activity after the act occurs, and the Government administers it with "a rule of reason" that may be clear to the Government but to no one else...

...The district court restrained publication even though each of the concepts is known to thousands and can be found or readily derived from information already in the public domain — in encyclopedias, college textbooks, magazines, newspapers, and Government publications, all available in public libraries...

...To obtain injunctive relief, however, the Act requires a showing that defendants have "reason to believe" publication will injure the nation or provide an advantage to another country...

...The Government brought this action under the Atomic Energy Act, which prohibits the dissemination of "Restricted Data" (information concerning nuclear material or nuclear weapons), and under the inherent power of the Executive Branch...

...Seven countries have both the knowledge and the material to produce a fission weapon, two others are "close" to having the necessary materials and knowledge, and twenty other countries have nuclear research and nuclear power programs which will enable them to acquire the capability to produce fission weapons...

...With the background provided by New York Times, this Court can apply its standards to the Government's allegations of the harm that will follow publication of the Morland article...

...The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best...

...Morland, for example, attended a meeting at which one of plaintiffs affiants, George W. Rathjens, and his students discussed the principles of thermonuclear weapons...

...Secretary Vance said, "the former concept should not be considered to define proliferation____[I] t is likely that many countries have the capability but not the intent to manufacture or otherwise acquire an explosive device...

...W]e have less to fear from knowing than from not knowing...

...Such discretionary power to censor public discussion of public information clearly conflicts with the vagueness and overbreadth doctrines as well as the First Amendment itself...

...Edward Teller, the father of the thermonuclear "secret" described in the Morland article, said in an interview prompted by this case, "[Wlhat is known to a million people is not a secret...

...How little is insufficient...

...The Court has also established strict procedural requirements far more rigorous than in ordinary cases...

...Passages marked [DELETED...

...Justice Blackmun: Mr...

...and the devastating effects of nuclear war...

...DELETED] Criminal liability under the Act cannot rest on such a fragile foundation...

...Samuel H. Day Jr., the managing editor, and Howard Morland, by Bruce J. Ennis, Mark H. Lynch, Charles S. Sims, and George Kannar, attorneys for the American Civil Liberties Union Foundation...

...The Government's construction of the Act gives it the power to bootstrap itself into a position to censor the publication of otherwise lawful speech...

...The Supreme Court has emphasized repeatedly that core constitutional rights cannot be "balanced" against governmental interests...

...Indeed, it cannot do so as long as it continues to describe the nature of that damage in imprecise, speculative, and conditional language...

...Both interests may well be "substantial," but it is "inappropriate" to label one as being "more important or more substantial than the other...

...Those provisions are exacting, however, and neither the Government nor the district court has demonstrated that the defendants' conduct falls within the statute and, as a result, that it justified the imposition of prior restraint...

...That construction would render the Act unconstitutional because it would force publishers, at their peril, to acquiesce in a Government permit system regulating political speech...

...Whether you like it or not, it will leak out eventually...

...The Government has expressly acknowledged that it cannot make that showing if the information is in the public domain: "If the data in question were already available in the public domain and well known in the scientific community, it is difficult to see how the defendant [sic] could have reason to believe disclosure would injure the United States...

...the Government argued forcefully to two district courts, to two Courts of Appeal, and to the Supreme Court that publication of the Pentagon Papers would cause extremely grave damage, including the immediate deaths of American soldiers...

...Seventh Circuit Court of Appeals in Chicago has set September 10 — the first day of its fall term — as the hearing date for The Progressive's appeal of the preliminary injunction barring publication of Howard Morland's article, "The H-Bomb Secret: How We Got It, Why We're Telling It...

...It is these three concepts the Government must prove are secret...

...Many of them obtained that knowledge in the United States...

...Those who must conduct their day-to-day activities under the threat of the Act's criminal sanctions may decide not to speak, not to publish, for fear of prosecution...

...The Government now has removed that declassified report and others from the open stacks at Los Alamos, but they have been freely available to researchers and scientists from the United States and other countries for years...

...He persisted...

...The Act vests DOE with the sole responsibility for determining what information can be removed from the "Restricted Data" category...

...It claims that the Morland article describes three principal concepts of the hydrogen bomb, concepts which together can be simply stated in a single short sentence...

...Prior restraints are presumptively unconstitutional because the primary function of the First Amendment is to ensure "the widest possible dissemination of information from diverse and antagonistic sources," and the "unfettered interchange of ideas...

...As part of that process, DOE "shall maintain a continuous review of Restricted Data and of any Classification Guides issued for the guidance of those in the atomic energy program" to determine what can be "declassified...

...To the contrary, the Government contends that regardless of the fact the information was lawfully acquired by a journalist, the information became "classified at birth" the moment it was learned or understood, and from that moment it was a felony to communicate that product of his public research and private thought...

...Those findings, on their face, fail to meet the standard of certainty, the first test established in the Pentagon Papers case, and on that basis alone this Court should find the district court's injunction invalid...

...The Supreme Court has never tolerated prior restraint...

...The Government bases its case on speculative and conclusory affidavits which fail on their face to establish the "sure," "inevitable," "grave," "direct," "immediate" and "irreparable" harm to the nation required to justify prior restraint...

...DOE agreed that Morland could ask any questions he desired and that it was up to the people he interviewed to refuse to answer if the response to a question were classified...

...To justify prior restraint, however...

...It is useless...

...Together, they create an "almost insuperable presumption" against such restraint...

...A professor cannot teach the principles of nuclear physics, especially if the class includes foreign students, without risking a violation of the Act...

...But there was no such "stark choice," and the district court should not have attempted to make one...

...The record in the district court does not support a finding that publication would lead "immediately" and "directly" to the requisite harm...

...The Government cannot impose on defendants a bad-faith motive or state of mind...

...v. United States...

...The Government's affidavits suggest only that harm might eventually occur at some unspecified time in the future____ Federal courts cannot enjoin publication on findings this bare and on a record riddled with speculative evidence...

...DOE claims the power to censor a political discussion of material already in the public domain through the novel expedient of certifying its accuracy...

...To determine whether the Government has overcome this barrier, this Court must conduct an independent, de novo review of the entire record...

...Solicitor General Griswold: No, Mr...

...Even if the court's finding were justified and those concepts were not in the public domain, the Government would still have to meet strict constitutional and statutory tests to obtain an injunction...

...it would be permanent restraint...

...And, if harmless and publicly available information is left classified for whatever reason, there is a serious risk of prosecution for protected speech...

...That finding, however, was in error because the Government failed to prove that the information is secret and to refute the defendants' strong showing that the three concepts are in the public domain...

...Instead, Howard Morland talked with physics professors and students...

...In several cases rejecting prior restraint, 'The Supreme Court has never tolerated prior restraint' however, the Court has suggested that there might be "a single, extremely narrow" national security exception to the rule against prior restraint...

...In short, the "secret" is no secret at all to an enormous number of people who are not subject to restraint by the courts...

...Government has offered affidavits to the contrary and contends that publication of the article would "undermine" the Government's nonproliferation policy...

...Moreover, as the Government recently acknowledged, its own public library at Los Alamos, New Mexico, has for years contained declassified reports on thermonuclear weapons far more detailed and sensitive than the Morland article...

...Any broader construction of the Act would not withstand constitutional scrutiny under the overbreadth and vagueness doctrines...

...That was a responsibility left — for better or worse — to a free press and a free people...

...Although there may be an extremely rare instance when government can restrain free speech in the name of national security, at the heart of the First Amendment lies the almost insuperable presumption against such restraint...

...Nielson, "Memories of Niels Bohr," Physics Today (October 1963...

...Knowledge of the basic principles of hydrogen weapon design," as the article says, "provides insight into the purposes of continued nuclear testing...

...This "classified at birth" concept, says the Government, applies "even though no formal action has yet been taken by the Government to restrict [the information's] distribution...

...What we do with the knowledge may be the key to our survival...

...In light of the evidence provided by the defendants that the concepts are already in the public domain, the Government's allegations of harm not only cannot be tested, they cannot be believed...

...When constitutional rights in their "most pristine form" are involved, as here, "Malancing...

...Justices White, Stewart, and Brennan required proof that publication "will surely" or "inevitably" cause the requisite harm...

...Besides meeting the constitutional test for prior restraint, the Government also must demonstrate that publication would violate the Atomic Energy Act...

...In his argument before the district court, the Government's counsel told the court it "need not look to the [constitutional] test" because "Congress itself has defined the standards for provision of an injunction...

...Justice, I think at that point we would agree that it becomes futile...

...DELETED] But, confronted with an article criticizing Government policies in a political journal, the Government chose to certify the article's accuracy...

...Old physicists who have turned administrators might not think of this solution [Teller's H-Bomb theory...

...Would the publication of information that helps Canada improve its nuclear reactor program be sufficient to justify criminal or injunctive*proceedings under the Act...

...The United States and The Progressive magazine are not the sole custodians of the three concepts...