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United States v. Bolton

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  1. Prior Restraint

Amicus brief filed by the Reporters Committee for Freedom of the Press, the Association of American Publishers, Dow Jones, The New York Times, and The Washington Post

Court: U.S. District Court for the District of Columbia

Date Filed: June 19, 2020

Update: On June 20, 2020, a federal judge denied the government’s request to block the publication and dissemination of John Bolton’s book. 

Background: On June 16, the Trump administration sued the president’s former national security adviser, John Bolton, to delay the release of his highly anticipated memoir, “The Room Where It Happened,” arguing that the book revealed classified information.

The next day, the administration sought an emergency order to block the book’s publication and distribution — even as copies were being distributed to booksellers and as journalists started reporting on the book’s revelations before its June 23 release. The book, which details Bolton’s time in the White House, reportedly paints an unflattering portrait of Trump, accusing the president of being corrupt and incompetent.

A hearing on the government’s emergency order request is scheduled for June 19.

Our Position: The government’s request to block the book’s publication is an unconstitutional prior restraint, and the U.S. District Court for the District of Columbia must deny it.

  • The injunction the government requests would burden core First Amendment speech.
  • The government cannot circumvent the U.S. Supreme Court’s ruling in the “Pentagon Papers” case by declining to sue a publisher directly and instead seeking to issue an injunction against it.
  • An injunction would not remedy any claimed harm from the book’s release, and it would be contrary to the public’s interest by suppressing the free flow of information to the public.

Quote: “The emergency injunctive relief sought by the Government, if awarded by this Court, would transform the Government’s already vast classification authority into an impermissible system of prior restraint whereby, upon the unilateral assertion of the executive branch that material is classified, a court could stop a book publisher from publishing, a distributor from distributing, a seller from selling, and a reader from reading, political or expressive work critical of government agencies or officials.”

Related: In 1971, President Richard Nixon’s administration sought a restraining order to prevent the New York Times from publishing the contents of the Pentagon Papers, a massive trove of leaked documents detailing America’s involvement in the Vietnam War. In a landmark ruling, however, the U.S. Supreme Court established that the government could not censor the press through prior restraint. The Court’s decision in New York Times Co. v. United States paved the way for the Times and the Washington Post to publish the documents — and it set an important precedent for future prior restraint cases.

The Reporters Committee frequently challenges government orders that prohibit journalists and news organizations from publishing information already in their possession.

In the spring of 2019, a Juvenile Court judge in Cook County, Illinois, issued an order that banned ProPublica from publishing information it had lawfully obtained identifying minors and their foster parents in a welfare case. A 40-member media coalition, led by the Reporters Committee, argued in a letter that the judge’s order was an unconstitutional prior restraint. Two weeks later, the judge narrowed the order, requiring ProPublica to refrain only from publishing the names and photos of the children involved in the case.

In February 2018, the Reporters Committee and the Nevada Press Association filed a friend-of-the-court brief in support of the Las Vegas Review-Journal and the Associated Press after a Nevada district court order prohibited the news organizations from publishing an anonymized autopsy record for a victim of the Las Vegas mass shooting. The Nevada Supreme Court later vacated the lower court’s order, ruling that it was an unconstitutional prior restraint.

To learn more about the Reporters Committee’s work on prior restraint, visit this page.