President Donald Trump on Wednesday raised the legal stakes in his ongoing battle to prevent John Bolton, his former national security advisor, from releasing his tell-all memoir, The Room Where It Happened, to the general public. Earlier this week, the Department of Justice filed a complaint in federal district court seeking to force Bolton to complete an interminable White House prepublication clearance process—which has, to date, had the effect of preventing Bolton from releasing his book. (As of this week, Bolton’s publisher has already shipped the book to sellers.) The administration is also seeking additional punitive remedies (such as seizure of any monies paid to Bolton for the work). Now, the DOJ has asked Judge Royce C. Lamberth, of the U.S. District Court for the District of Columbia, to issue a blunderbuss injunction, on an emergency basis, prohibiting anyone and everyone from releasing copies of Bolton’s book on pain of contempt of court charges. The government has requested a hearing on its motion for an emergency injunction on Friday.
In its original complaint, the DOJ alleged that Bolton’s book—which, again, has already been printed, shipped, and is ready for release next week—still contains information “classified at the Confidential, Secret, and Top Secret levels” and that “publication and release of The Room Where it Happened would cause irreparable harm” to the national security interests of the United States, as well as violate a non-disclosure agreement that Bolton signed. The federal government now wants the court to place an indefinite hold on the release of Bolton’s book until he completes the White House prepublication clearance process.
After months of previous delays, any reasonable observer could conclude that completion of the Trump White House’s prepublication process will be akin to Bolton waiting for Godot. In fact, Bolton and his publisher thought that they already had obtained the requisite approval back in April—but, the White House evidently changed its mind and is now demanding more revisions to the book. By all appearances, the Trump administration hopes either to entirely prevent or to delay release of the book until after the November 3 presidential election.
If Lamberth follows well-settled First Amendment legal precedents, however, he will quickly and emphatically reject the Trump administration’s scheme to run out the clock on Bolton. An injunction against publication of a book constitutes a prior restraint and is fundamentally inconsistent with the core purposes and central meaning of the First Amendment’s guarantees of freedom of speech and the press. Accordingly, Lamberth will almost certainly reject the DOJ’s request for an injunction to muzzle the universe. What’s more, his decision will likely be quickly affirmed if the Trump administration should appeal it.
Under well-established First Amendment precedents, prior restraints are anathema. Whatever else the First Amendment means, or should mean, it encompasses an almost absolute proscription against the imposition of prior restraints against publication of books and news stories related to public officials, public figures, or matters of public concern.
The principle might seem unfamiliar, or even vaguely scary, to many. For example, the potential consequences of publishing directions on how to build a nuclear bomb, the subject of prior restraint litigation in the 1970s against The Progressive magazine, could be catastrophic. Despite the potential costs associated with publication of diplomatic, military, or national security secrets, most of the time the government does not even bother going to court to seek an injunction against publication (because the government’s lawyers know such litigation would be futile). More typically, the White House will instead attempt to use moral suasion to convince a media entity to voluntarily refrain from publishing information that could be detrimental to the diplomatic, military, or national security interests of the United States.
It also bears noting that the rule against prior restraints significantly predates the U.S. Constitution and Bill of Rights. William Blackstone, in his iconic Commentaries on the Laws of England, writes that the freedom of the press, as recognized in England before the American colonies sought and won their independence, precluded banning the publication of books and articles. Blackstone explains that “[t]he liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published.” Accordingly, “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”
Blackstone’s rule against prior restraints plainly encompasses John Bolton, his publisher, and any bookstores that presently possess copies of Bolton’s book.
The Supreme Court has strictly enforced this rule, perhaps most famously in its 1971 Pentagon Papers decision. Although the Justices formally divided 6-3 in authorizing the immediate publication of materials from stolen classified Pentagon studies of the Vietnam conflict, all nine members of the Supreme Court acknowledged that the rule against prior restraints is absolute (or nearly so). The question that divided the justices was the extraordinary speed with which the Supreme Court heard and decided the litigation, which was an abnormal matter of mere weeks.
Justice William Brennan, Jr., in his concurring opinion, noted that executive branch lawsuits seeking an injunction against publication of a newspaper article were, until the Pentagon Papers litigation, utterly foreign to American law: “So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession.” Echoing Blackstone, Justice Brennan found that “the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.”
In fairness, the bar against prior restraints is not “absolute”—Judge Robert W. Warren, the district judge who presided over the litigation involving the federal government’s suit to block The Progressive from publishing information on how to build a nuclear bomb, seriously considered issuing an injunction against publication. The litigation washed out after the information was published elsewhere (the most likely result here too), which rendered the question of an injunction against The Progressive moot (again, a not unlikely outcome in United States v. Bolton). Justice Brennan’s central point nevertheless remains true and relevant: Absent the most extraordinary circumstances, the government may not use judicial process to prevent the press or a book publisher from disseminating truthful information related to public officials involved in grave matters of public concern.
What about that NDA and the government’s attempts to seize Bolton’s proceeds from the book? It’s essential to separate and distinguish Bolton’s personal interest in monetizing his experience as national security advisor from the larger, and far more important, question of whether the federal government can enlist the federal courts to withhold from We the People critically important information related to arguably impeachable actions by the president.
Justice William Brennan, in the 1964 landmark decision New York Times Company v. Sullivan, explained that the First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” The process of free and open debate is essential to empowering voters to use the electoral process wisely as a means of securing government accountability. Because of this, a public official cannot claim the same protection of tort law as an ordinary private citizen.
This same general approach should hold true with respect to whether an injunction is available to President Trump to enforce an NDA to seek preemptive civil remedies related to a book that, according to already published excerpts, reveals serious concerns about the president’s fitness for office and potential criminality in office.
Basically, the voters have a right to know. As Alexander Meiklejohn, an iconic scholar of the First Amendment explains, “[w]hen a free man is voting, it is not enough that the truth is known by someone else, by some scholar or administrator or legislator.” Instead, “[t]he voters must have it, all of them.”
The use of NDAs as a basis for imposing prior restraints on information about government officials involved in matters of public concern would prevent the process of democratic deliberation from working—it would distort, if not cripple, that process. In so doing, it also would render elections far less efficacious as a reliable means of empowering voters to hold government and government officials accountable for their actions.
It is also worth noting that the complaint is incredibly vague on precisely how and why the disclosures would damage the diplomatic, military, and national security interests of the United States. In this sense, it is eerily similar to the Nixon administration’s efforts to convince the federal courts to prevent the New York Times and Washington Post from publishing excerpts from stolen copies of the Pentagon Papers.
To be sure, the rule against prior restraints does not mean that publishing (or speaking) cannot produce adverse legal consequences following publication. If, as the White House claims, Bolton’s book contains legally protected national security secrets or otherwise violates an NDA that Bolton voluntarily signed, he could face civil or criminal liability following the release of his book. Perhaps the government could seize his advance and any royalties he earns on the book. The government’s complaint touches on all of these things. However, any adverse consequences that arise post-publication do not constitute prior restraints.
The rule against prior restraints has very deep roots in Anglo-American law. In light of this fact, the American people should both expect and demand that the federal courts swiftly and resolutely reject the Trump administration’s ham-fisted and legally dubious efforts to prevent the American people from reading Bolton’s book. The federal courts should, and most likely will, simply follow the fine example, and precedent, set by the Burger Court almost fifty years ago in the Pentagon Papers litigation. If the federal courts adopt this legal approach, no serious question can exist about the ability of Bolton, his publisher, and thousands of booksellers to make The Room Where It Happened available to the general public on Tuesday.