Book publishing and prior restraint under Trump

Parker Higgins

Advocacy Director

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Justice Oliver Wendell Holmes once wrote that the “the main purpose” of the First Amendment is “to prevent all such previous restraints upon publications as had been practiced by other governments.” It's unfortunate, then, that such “prior restraints” — attempts by individuals or governments to use courts to censor books or newspapers before publication — have become a tool increasingly relied upon by President Trump and his inner circle.

A tell-all book by Mary Trump, the president's niece, was released today, concluding a well-publicized court battle aiming to stop its publication. Attorney Charles Harder, who previously led the fatal legal attack on Gawker, here represented the president's brother Robert and was able to briefly obtain a temporary restraining order against the book, based on a non-disclosure agreement signed by the family members. A New York judge vacated that order yesterday, and denied all injunctions related to the book's release.

The book contains new perspectives and insight into Donald Trump, including details that have been widely covered since journalists obtained advance copies. The more significant press freedom issue, though, is the embrace by the president and people in his orbit of “prior restraint” — pre-publication censorship that has been roundly rejected by the U.S. Supreme Court as unconstitutional in nearly all cases.

This sort of showdown over prior restraint has been widely expected in legal circles, despite the fact that virtually every First Amendment scholar agrees that any such order would be unconstitutional on its face. But given this administration's attitude towards criticism and occasional support for unconstitutional censorship efforts, it should come as no surprise the Trump clan might attempt it. President Trump has promised at times to “open up” libel laws to allow him to sue more of his critics, and has floated the idea of tying legal consequences — even privately musing about throwing journalists in jail — to the unflattering reporting he universally dismisses as “fake news.”

Most anticipated that the significant legal challenges would center around John Bolton, the president's former National Security Advisor who published a highly critical book, The Room Where It Happened, last month. Although news of that book had been widely publicized since Bolton failed to testify on the same information during the Trump impeachment process, the Administration only sought to block its release in the days before it was scheduled. In that case, the government was able to cite Bolton's failure to fully comply with its pre-publication review process for classified materials.

(This argument was complicated by the fact that Bolton had in fact submitted his manuscript to that process, and had been told no classification issues remained. Nevertheless, the pre-publication review process, widely understood as an opaque tool that can suppress otherwise protected speech, was a factor in the case.)

The censorship effort against Bolton failed in part because of a few important properties of published books: namely, they involve a lot of people, and require a lot of lead time. The judge who rejected the Administration's argument acknowledged as much, claiming that the horse was "out of the barn" in terms of that book's publication, as copies had already been printed and in some cases circulated. After all, was the judge really going to order Simon & Schuster to somehow claw back hundreds of thousands of books from thousands of bookstores too?

For those reasons and others, book publishing has long served an important role in journalism, besides just presenting an opportunity for much deeper analysis and reporting than feature articles in newspapers or even magazines. In some cases, journalists have been able to exercise editorial judgement in books that they're not afforded in newsrooms. Notably, the reporter James Risen was able to push the editors at the New York Times to publish information about a major domestic spying program only because he was also set to document it in an upcoming book release.

So for practical reasons, and for historical ones, book publishing plays a key part in the broader reporting ecosystem, and is accordingly difficult to censor. Unfortunately, while courts have mostly acknowledged the importance of such speech at the federal level, some state judges seem dangerously ignorant to the unconstitutionality of prior restraint. They have, at least temporarily, issued restraining orders against newspapers too. At the U.S. Press Freedom Tracker, we’ve recorded at least 15 such incidents since 2017, where a judge issues an order that can have widespread censorship effects. (Thankfully, they are almost always overturned.)

And of course, there was a restraining order in the Mary Trump case. That might seem irrelevant, given that the order was vacated and the book has now been published, but as Mary Trump's lawyer put it: the book “should not be suppressed even for one day.” Even a temporary restraining order creates a chilling effect.

Mary Trump’s book may not be the Pentagon Papers, but Justice Hugo Black’s words in the 1971 case barring the Nixon administration from censoring the New York Times ring just as true today: “Every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”

Beyond the legal system, book publishing is of course a business, and faces all the associated pressures. It's heartening then to see at least Simon & Schuster, the publisher of both Mary Trump and John Bolton's books, recently announced the selection of a journalist to lead its namesake imprint, to navigate the questions of news judgement that might arise. If, as it's said, journalism is “the first rough draft of history,” reported books can represent a crucial round of edits.