Prior Restraint

To what had Bolton agreed?

"Never divulge classified information to anyone unless: (a) He has officially verified that the recipient has been properly authorized by the US Government to receive it; or (b) He has been given prior written notice of the authorization from the US Government that such disclosure is permitted."

Justice Hughes said prior restraint by the government might be permissible under what three circumstances?

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Trump's Attempt to Stop Bolton's Book: Understand the facts of the case, the claims and counter-claims, and the prior restraint issues involved. How does this case compare with the Pentagon Papers and The Progressive cases?

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William Blackstone said freedom of the press precluded what? Liberty of the press is essential to what? That liberty means freedom from what but not from what? In other words, every person has the right to do what but must face the consequences for publishing what? What have you studied that encompasses that principle? How would this principle apply to Bolton?

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Prior Restraint

-An attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press (even in the guise of anti-nuisance ordinance). Stemming from the First Amendment to the Constitution, the ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered (false claim of poison in the reservoir or exhortation to commit a crime like a lynching) and some forms of pornography.

Under McGehee v Casey (D.C. Cir. 1983), a mandated prepublication review process is considered constitutional as long as what two requirements are met? Did the government prepublication review of Bolton's book meet those requirements?

-As long as restrictions protect a substantial government interest unrelated to the suppression of free speech. -The restriction is narrowly drawn to restrict speech no more than it is necessary to protect substantial government interest.

The DOJ also wanted the court to do what until Bolton completed what?

-Delay the release of the book until the review process was completed. -Require Bolton to "instruct his publisher to delay the release date of the book pending the completion of the prepublication review process and authorization from the US that no classified information remains in the book."

Explain how the U.S. Supreme Court's majority decision in the "Pentagon Papers" case rested on the preferred position balancing theory.

-In the Pentagon Papers case a divided Supreme Court, in a decision that contains a separate opinion from each of the nine justices, refused to enjoin publication of the Pentagon Papers, emphasizing the First Amendment's strong presumption against any prior restraint on free speech. -The justices' reasons for their decisions varied widely. Two justices believed that any prior restraint on the press amounts to censorship in clear violation of the First Amendment, whereas three justices believed that publication of the Pentagon Papers should have been delayed until the courts had more time to evaluate the impact of publication on national security. -Because freedom of speech and press are given a preferred position when balanced against government restriction, we see that a divided court still sided in the preferred position of the press & their First Amendment rights.

For the "Pentagon Papers" case, know what got whom into trouble.

-President Richard Nixon's administration sought to prevent the New York Times and the Washington Post from publishing excerpts from a classified study (the Pentagon Papers_ on the history of the US involvement in Vietnam, arguing that publication would hurt national security interests. The Supreme Court, by a 6--3 vote, held that the government's efforts to block publication amounted to an unconstitutional prior restraint. -The Times and Post claimed that the government was engaging in Censorship. Thus, the case put the rights of the newspapers under the First Amendment against the duty of the Executive Branch to protect the nation.

Progressive magazine case: Know what got whom into trouble. What danger did the article pose?

-The Progressive wanted to publish an article about government secrecy with nuclear weapons (hydrogen bomb). The Government said it contained sensitive and restricted material. -In 1978, the magazine commissioned a freelance writer Howard Morland to write an article concerning government secrecy in the area of energy and nuclear weapons. After months of extensive background research Morland wrote "The H-Bomb Secret: How We Got It, Why We're Telling It." On February 27, 1979, Samuel H. Day Jr., the magazine's managing editor, sent a copy of Morland's draft to the Department of Energy's offices in Germantown, Maryland. Day asked the DOE to verify the technical accuracy of Morland's draft before the magazine published it. Despite the government's efforts, on March 7, 1979, the magazine informed Coleman that it would publish the Morland article. The next day, the government sued the magazine in the US District Court for the Western District of Wisconsin, and asked the court to stop publication. -The article posed a danger because it was believed the publication would damage the US efforts to control worldwide spread of nuclear weapons.

Near v. Minn. (1931) Know who did what to get into trouble.

-The Saturday Press, a small Minneapolis newspaper published a crude malalignment of police and political officials, often in anti-Semetic terms. -Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for the abatement, as a public nuisance, of a 'malicious, scandalous and defamatory newspaper, magazine or other periodical.'

How did Warren distinguish between the "Pentagon Papers" and "The Progressive" cases to justify an injunction against publication?

-This case is different in several important respects. In the first place, the study involved in the New York Times case (Pentagon Papers) contained historical data relating to events that occurred some three to twenty years previously. -Secondly, the Supreme Court agreed with the lower court that no cogent reasons were advanced by the government as to why the article affected national security except that the publication might cause some embarrassment for the US. -A final and most vital difference between the two cases is the fact a specific statute is involved here. Section 2274 of the Atomic Energy Act prohibits anyone from communicating, transmitting, or disclosing any restricted data to any person "with reason to believe such data will be utilized to injure the US or to secure an advantage to any foreign nation."

How is this case important to the doctrine of incorporation and to press freedoms?

-This incorporation made freedom of the press fully applicable to the states. -The theory, articulated by the US Supreme Court in Near v. Minnesota (1931) is that free speech and free press protections have priority, and lawsuits for libel and slander and prosecutions for criminal advocacy will curb the effect of defamation and untruths.

How was the Trump administration's complaint similar to the Nixon administration's efforts to stop publication of the Pentagon Papers?

-Trump is trying to block the publication of Bolton's tell-all book, claiming that there is "top-secret" and/or classified information in it. This is similar to Nixon's administration wanting to inhibit the publication of information on the US. -Both looked for court remedies (injunctions) however, I have no doubt that the court will rule in favor of Bolton and against the prior restraint the Trump administration is trying to carry out.

What did U.S. District Court Judge Robert Warren conclude?

-Warren sided with the government -Warren signed a preliminary injunction restraining the magazine, its editors, and Morland from "publishing or otherwise communicating, transmitting, or disclosing in any manner any information designated by the Secretary of Energy as Restricted Data constrained in the Morland article." The injunction would last until a full trial could be held. -Under the First Amendment, the injunction that the government wanted constituted a prior restraint on publication, which is difficult to justify legally because of the principle that the law isn't broken until an illegal act is actually committed, not before. However, the government had presented very strong evidence that the Morland article would contribute to the spread of nuclear know-how. Warren balanced the two considerations, and came down on the government's side.

But why would an injunction now not solve the problem?

An injunction today would at least prevent any further spread of the book, such as limiting its audiobook release.

The judge said he would not order what?

An injunction-- the court will not order a nationwide seizure and destruction of a political memoir.

Bolton might have indeed caused what?

Bolton may indeed have caused the country irreparable harm.

Was Bolton correct?

Bolton was wrong

What did the judge describe as Bolton's bet?

Bolton's Bet: If he is right and the book does not contain classified information, he keeps the unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security

Bolton likely published what?

Classified Materials

But instead he chose to do what?

He opted out of the review process before its conclusion.

By being wrong, what has Bolton risked?

He stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security.

Explain whether the majority said prior restraint in similar situations would always violate the First Amendment.

In concurring opinions Justices Hugo L. Black and William O. Douglas both stated, in very strong language, that prior restraints on the freedom of expression are never justified, no matter the circumstances. Black, commenting on the government's argument that prior restraints might be justified in certain circumstances, stated, "I can imagine no greater perversion of history...Both history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints." Black and Douglas both believed that "every moment's Continuance of the injunctions...amounts to a flagrant, indefensible, and continuing violation of the First Amendment.

In New York Times Company v. Sullivan (1964), Justice Brennan explained that the First Amendment reflects what?

Justice William Brennan, in the 1964 landmark decision New York Times Company v. Sullivan, explained that the First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Where should public officials find their remedies for libel?

Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.

Bolton's unilateral conduct gave rise to what?

Raises grave national security concerns.

It required what?

Required to confirm that an authorized official that the information is unclassified before he may disclose it.

But the government didn't establish what?

That an injunction is an appropriate remedy.

In other words, Bolton likely did what?

The Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations.

The DOJ said the book contained what kind of information that would create what problem if published?

The book contains sensitive information that could compromise national security that alleges that Bolton prematurely halted his prepublication review process in order to proceed to publication.

But the government had not proved what? Why?

The government has not proved that an injunction would reverse the damage already caused. This is because even if a few books got out, someone could put them on the internet and still risk national security.

In the Pentagon Papers case, Justice Brennan's central point was that government may not use the courts to prevent what absent what?

The government may not use the judicial process to prevent the press or a book publisher from disseminating truthful information related to public officials involved in grave matters of public concern, absent from the most extraordinary circumstances.

Bolton could have sued the government over what?

The mixed messages sent by prepublication review personnel and questions the motives of intelligence officers.

Why was the government's prepublication review reasonable?

This court's cases make clear that-- even in the absence of an express agreement--- the CIA can act to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.

Pentagon Papers case

This decision was hailed as a great victory for advocates of Freedom of the Press. For the first time in the nation's history, the government has succeeded, if only during the appeals of the case, in precluding the press from publishing news in its possession. At least in the circumstances presented by the case, however, the Supreme Court held that such a prior restraint on freedom of speech violates the First Amendment. The practical effect of the decision, which carefully avoided any mention of the contents of the Pentagon Papers, was far less dramatic than suggested by the attention it received. The newspapers never did publish the portions of the Pentagon Papers that the government claimed were the most sensitive. In addition, further publication of the Pentagon Papers by newspapers around the country did not attract a great deal of attention or significantly affect the US policy on Vietnam. The Pentagon Papers case ramins, however, an important precedent in support of Freedom of the Press under the First Amendment.

The DOJ also said publication would violate what?

Violate the non disclosure agreements Bolton signed when in office.

A violation could result in what?

Violation could result in "assigning to the US Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of [SF 312]."