This article originally appeared in the June 23, 2020 Concord Monitor.
During the 18th century, a man named Blackstone wrote “Commentaries on the Laws of England,” the definitive treatise on English law. In that book, he explained that freedom of the press “consists of laying no previous restraints on publication.”
And that is the common law we took on when we adopted the Constitution in 1787, and when the states ratified the First Amendment in 1791. For a long time it was thought that freedom of speech and press in America was mostly in line with what Blackstone had written, meaning that you could say or publish almost anything without government interference, but you might face consequences afterwards. Over the last 60 years or so a series of cases, beginning with New York Times v. Sullivan, has greatly expanded the scope of the First Amendment. And the rule against governmental censorship has remained firmly embedded in our constitutional framework.
In 1931, the Supreme Court staked out how essential this rule is to American law. Jay Near, owner of a Minneapolis newspaper called “The Saturday Press,” published anti-Semitic, anti-Catholic, anti-black articles, and the local authorities tried to shut down the paper under the state’s “public nuisance” law. By a 5-4 vote, the Supreme Court held in Near v Minnesota that Near had a constitutional right to publish his paper, hateful speech and all. The greater harm, said the Court, would be to allow public officials to decide what can and cannot be published.
Burstyn v. Wilson, decided in 1952, dealt with a Fellini movie called “The Miracle,” starring Anna Magnani. As New York law then stood, the distributor had to get approval from the state educational department before exhibiting the movie. Cardinal Spellman denounced the film as sacrilegious, whereupon the state revoked the license. The Court said “No” to the New York statutory scheme. Movies are protected, just like newspapers, and you can’t condition showing them in public on the whim of a government censor.
Then, in 1971, the Supreme Court decided New York Times v. United States, known as the “Pentagon Papers” case. A man named Daniel Ellsberg leaked the Pentagon Papers, an exposé of the Vietnam War, to the New York Times, and the Nixon administration sued to prevent publication. The Supreme Court ruled for the Times on the basis that the Government had fallen short of showing a “grave and irreparable” danger. The Times, along with the Washington Post, then published the papers. The story is winningly told in the 2017 Steven Spielberg movie “The Post” starring Meryl Streep and Tom Hanks.
What these and other cases demonstrate is that freedom of the press, American style, applies in all but the rarest of instances. Exceptions to the “no prior restraint” rule are rare. The classic example is that a court could enjoin a newspaper from disclosing the whereabouts of American ships in wartime—a matter of legitimate national security.
President Trump has made it clear that he has no use for the press. He calls reporters “scum” who print and broadcast “fake news.” But it isn’t just the press that he dislikes. It’s the First Amendment itself. If it were up to him, we would have prior restraints, who cares about Blackstone or Near or Burstyn or the Pentagon Papers?
I refer, of course, to his latest lawsuit, a classic barn door case if ever there was one. On June 16, Trump’s Justice Department filed a lawsuit to prevent Bolton from publishing his tell-all, oddly named book “The Room Where it Happened.” The DOJ claimed that Bolton was making classified information public. Trump went on Twitter to denounce the author as “Wacko John Bolton” whose book is “full of lies.” One of those “lies,” no doubt, is Bolton’s opinion that Trump is “not fit for office.”
By the time this lawsuit was filed, the book had not only been printed, but the publisher had distributed advance copies to news media and others around the country in advance of the scheduled June 23 publication date. The media has already provided us with some of the juicy parts.
Trump is on a judicial losing streak. The Supreme Court recently held that Title VII of the 1964 Civil Rights Act applies to LGBTQ employees. A few days later, it rejected Trump’s claim that DACA was unlawful.
Trump’s luck isn’t going to get any better. This latest case against Bolton is not in the Supreme Court, and I doubt it will ever get there. It’s in the federal district court for the District of Columbia, where the judge, a Reagan appointee I might add, has refused to halt publication. In a country that values freedom of the press, the Department of Justice should be ashamed of itself for wasting the taxpayers’ money on such an ill-conceived case.