700x394_Tony_col_7.10.20

‘Prior Restraint’ Doctrine Plays a Key First Amendment Role in Trump’s Book Lawsuits

This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.

As President Trump’s lawyers have sought ways to block the distribution of books by his niece Mary Trump and his former national security adviser John Bolton, Trump’s adversaries are invoking a tenet of press freedom that dates back at least four centuries.

The doctrine is called “prior restraint” and is shorthand for the belief that government should almost never be allowed to block or restrain books, newspaper articles or other expressions before they are published. Because of the values of free expression, the theory goes, if any litigation is to be had, it must occur after publication, not before.

Mary Trump’s tell-all book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” will soon be widely distributed thanks to a New York appellate ruling that cited the “heavy presumption against prior restraint” and gave the publisher Simon & Schuster the green light.

In the case of John Bolton, whose book, “The Room Where It Happened: A White House Memoir,” is also soon to be released, a federal judge ruled that blocking prior restraints is outweighed by the need to protect classified information in the book. But the judge ruled that with widespread distribution of the book already under way, “the horse is out of the barn” and the federal government “has failed to establish that an injunction will prevent irreparable harm.”

Charles Harder, the lawyer for Trump’s brother Robert, said in a brief arguing against Mary Trump’s book, “The prior restraint doctrine has nothing to do with cases where a speaker has made an enforceable contract.”

Why does the “no prior restraint” axiom loom so large in First Amendment doctrine? In centuries past, governments wielded harsh restraints against the press. Think of the Star Chamber in England in the 15th to 17th centuries. After that period, according to an Indiana Law Review article, legal views changed, to the point that defamation, for example, could be “punished but not prevented.”

In his widely cited 18th-century commentaries, William Blackstone wrote, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications … Every 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.”

Fast forward to 1931, when the Supreme Court handed down Near v. Minnesota, brought by Jay Near, a muckraking journalist whose publication was halted because of his malicious articles about local officials.

Led 5 to 4 by Justice Oliver Wendell Holmes, the high court struck down a Minnesota law that allowed local government such a restraint. He wrote, “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.”

In a book about Near v. Minnesota, the late Fred Friendly stated that because of the decision, “freedom of the press was transformed successfully from an 18th- and 19th-century ideal into a 20th-century constitutional bulwark.”

Proof of that statement came in New York Times Co. v. United States, best-known as the Pentagon Papers case, in which the Nixon administration sought to block publication of a secret internal history of the Vietnam War. As with the Bolton case, justices said the government had not made its case that publishing the documents would affect national security. Justice Hugo Black wrote, “These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press.”

Since then, the doctrine has not always been embraced. But it still stands tall, as these quotations indicate:

  •  “An injunction against speech is the very prototype of the greatest threat to First Amendment values, the prior restraint,” the late Justice Antonin Scalia, not always a fan of the First Amendment, wrote in a 1994 case.
  •  “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” wrote then-Chief Justice Warren Burger, also not a First Amendment champion, in 1976.
  •  More recently, lawyer Theodore Boutrous said in a tweet that the effort to halt Mary Trump’s book “defies the First Amendment, ignores basic contract law and fails completely to justify a prior restraint muzzling Mary Trump from publishing her book and engaging in core political speech about the president based on her own experiences and observations.”

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media, and a special correspondent for the Freedom Forum.

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