Another Free-Speech Fail By The Trump Administration
Mark M. Leitner
This afternoon (Friday, June 19, if you’re reading this later) at 1 p.m., U.S. District Judge Royce Lamberth will hear arguments about whether the federal government can prevent John Bolton from publishing the book he wrote about his service as President Trump’s National Security Adviser. The government claims that because Bolton’s book contains various levels of classified information, and he signed agreements promising not to reveal classified information, Bolton is “compromising national security by publishing a book” containing that classified information.
It’s an extraordinary event. The United States Supreme Court has never upheld a court order preventing publication or speech in advance. Such a “prior restraint,” the Court held in the historic Pentagon Papers case, “comes to this Court bearing a heavy presumption against its constitutional validity.” Despite the secrecy contracts that Bolton signed, and the extreme (and unwarranted, in my view) deference that our courts give to government claims of secrecy and national security, I think the government will lose and Bolton’s book will go on sale Monday as scheduled.
“I think the government will lose and Bolton’s book will go on sale Monday as scheduled.”
Let’s talk about the contracts first. In 1980, the Supreme Court ruled in Snepp v. United States that secrecy agreements similar to the ones that Bolton signed were enforceable and that the government could impose a constructive trust over the author’s profits from a book he published without the government’s prior approval. The Snepp Court simply disregarded the First Amendment analysis used by the D.C. Circuit below, ruling that Snepp’s failure to submit his manuscript for review before publication as required by his contract breached a fiduciary duty he owed to the government.
Snepp was decided 40 years ago, and in that time many courts have enforced secrecy agreements purporting to protect classified information. In a recent high-profile decision, a federal district court enforced secrecy agreements like the ones signed by Bolton and Snepp, and imposed a constructive trust giving the federal government all of the profits that Edward Snowden would earn from his memoir Permanent Record, which Snowden had published without the contractually-required prepublication review. Another federal district court recently upheld the entire federal prepublication review system against a challenge by former government employees who argued that the standards for classifying information were unconstitutionally vague and allowed federal agencies too much discretion to suppress critical speech.
These results are not surprising, because the law of secrecy agreements is extraordinarily deferential to the government. First, “[i]f the Government classified the information properly, [the employee] simply has no First Amendment right to publish it.”[7 ] Second, the analysis starts with the law’s thumb parked on the government’s side of the scale: “The deference given to the government stems from the recognition that the government’s ability to maintain secrecy is essential and the recognition that the government is in the best position to judge the harm that would result from disclosure.”[8 ]
If the playing field is so heavily tilted to favor enforcement of secrecy agreements, why do I think the government won’t get its prior restraint injunction tomorrow? Two main reasons: first, the rules set the bar very high to get a preliminary injunction in any kind of case, because an injunction compresses the process and gives the winning side a big (but not complete) win even before there is a trial. The court has to consider and balance several factors, but “’perhaps the single most important prerequisite’” in granting a preliminary injunction is whether the party seeking the injunction will suffer irreparable harm if an injunction is not granted.[9 ]
Irreparable harm has several elements, but these are enough for today: to enjoin the publication of Bolton’s book, the government has to prove that (1) “the alleged harm will directly result from the action which the movant seeks to enjoin,” and (2) the harm is so serious that if it is allowed to occur it is “beyond remediation”[10 ] – it cannot be fixed.
Here is where the government will run into trouble. The Wall Street Journal, Washington Post, and New York Times have already published lengthy excerpts from Bolton’s book. Dozens if not hundreds of web sites have linked to those excerpts and commented on them. Many sites and television programs have shown excerpts of an interview with Bolton set to air on June 21. In short, the supposed harm to national security has already occurred and it is too late to repair anything. Even if the court were to prevent publication of the book, the digital excerpts are never coming down.
“Locking the barn door after the horses are gone” is a cliché, but it fits perfectly.
The second reason why the court probably will deny the injunction is the First Amendment’s near-absolute ban on prior restraints, recognized in the Pentagon Papers case. None of the cases from Snepp to the present that uphold the government’s broad discretion to classify information arose in the context of a prior restraint. Maybe someday the government will come into court with compelling facts showing that some impending publication actually threatens national security and walk out with a injunction. I’d bet that tomorrow isn’t that day.