Trump Hits the Wall of Courts' Prior Restraint Precedents

Published July 13, 2020

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

President Trump’s campaign and family have both tried in recent weeks—and earlier in his presidency—to stop publication of books and other things that may be uncomfortable or embarrassing to him. And each time such efforts have failed, with the courts rejecting these attempts based on almost 90 years of legal precedent that allows such prior restraints only under the direst circumstances.

The most recent efforts sought to stop publication of niece Mary Trump’s Too Much and Never Enough and of former national security adviser John Bolton’s The Room Where It Happened. Previously, Trump sought to stop publication of Michael Wolff’s Fire and Fury. And his campaign filed an arbitration claim alleging that Omarosa Manigault Newman’s book violated a non-disclosure agreement: a dubious legal claim. (Manigault Newman is also being prosecuted for allegedly failing to file federal financial disclosure forms.)

Courts roundly rejected the attempts to stop publication of the Mary Trump and John Bolton books, although claims against the authors themselves—that Mary Trump violated a non-disclosure agreement that was part of the settlement of her grandfather’s estate, and that John Bolton violated the agreement he signed to abide by government review of his book for classified information—continue.

This is the legacy of decades of court rulings applying the First Amendment to attempts to stop publication of allegedly classified, confidential or embarrassing information. And throughout almost 100 years, the result has been the same: prior restraints—stopping publication of material—is not legal except in the direst circumstances. That does not mean that the individual(s) publishing the material will not face legal consequences for doing so, but it does mean that they cannot be stopped beforehand.

In 1971, the Nixon Administration tried to stop The New York Times, The Washington Post and other newspapers from publishing information from and excerpts of a 47-volume report known as the Pentagon Papers, which detailed United States involvement in southeastern Asia in the build-up and execution of the Vietnam War. The Papers report was classified and included details on American actions that were otherwise previously unknown or unacknowledged.

One of the report’s authors, Daniel Ellsberg, leaked 43 volumes of the report to The New York Times, which had a team of reporters and editors analyze and confirm the documents before beginning to publish stories based on them on June 13, 1971. The federal government went to court to stop the articles, and obtained a temporary restraining order stopping publication two days later. Ellsberg then leaked the Papers to The Washington Post. But when the government went to court to stop the Post’s articles, the court ruled for the newspaper. Ellsberg than leaked the documents to other newspapers, with the government seeking to stop publication in those papers as well.

The Times and Post cases both ended up before the U.S. Supreme Court within a week of the initial filings: “warp speed” for normally laborious and protracted court processes. And within a few days, the Court held 6 to 3 that the newspapers could publish the material. In a per curiam opinion, the majority quoted an earlier Supreme Court case holding that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The opinion continued, “[t]he Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint,’” concluding that the government had not done so regarding the Pentagon Papers.

The upshot of this and other cases is that courts will not issue orders barring publication requested by the executive branch unless the government can show a “compelling interest” in keeping the information from the public.

In 1979, a federal trial court barred The Progressive magazine from publishing an article on how the hydrogen bomb works—based on information gleaned from publicly-available academic articles and government documents—on the grounds that the information could be used by terrorist groups and hostile governments. The magazine appealed, but the government dropped the case when other publications published the material. The Progressive then published its own article in November 1979.

The upshot is that courts may not bar speech unless that speech is not protected by the First Amendment, such as obscenity, or it has a compelling interest, such as protecting consumers from false advertising. Courts may also stop reporting on trial details that would endanger a criminal defendant’s rights to a fair trial, when there is no other way to protect these rights. The Supreme Court upheld such an order in 1990 barring CNN from broadcasting recordings phone calls of deposed Panamanian dictator Manuel Noriega speaking with his lawyers in his prosecution for drug trafficking, racketeering and money laundering.

Thus, the courts set a high bar for stopping publication, which explains the results of the efforts to stop printing and sales of the Mary Trump and John Bolton books. But they have also held, as the Supreme Court majority wrote in a 1931 case, that “[s]ubsequent punishment … is the appropriate remedy” if harmful material is published. So even while their books have already been printed and distributed, the lawsuits claiming that the books violated confidentiality agreements both continue.

Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not of his employers.