President Donald Trump’s lawyers threatened legal action against the publisher of an explosive new book purporting to detail the chaos and tumult of the Trump White House.
The book, “Fire and Fury” was rushed to print late Wednesday and appeared in bookstores Friday morning. Trump’s lawyers have warned the publisher, Henry Holt and Co., that they will sue to prevent further publication. Such a lawsuit would almost certainly fail.
The preemptive restriction of speech or expression is called “prior restraint.” Federal courts have long considered prior restraint unlawful on constitutional principles, except in select cases relating to national security.
Modern prior restraint jurisprudence began to emerge in the 1930s. In Near v. Minnesota, the Supreme Court struck down a law that permitted state regulation of tabloids, smut sheets, and scandal rags, arguing that the tradition of the country tended against censorship.
Prior restraint is not even permitted in circumstance when the ensuing speech is false, as appears to be the case with much of Michael Wolff’s book.
“The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth,” the Court said in its Near decision.
In a subsequent 1976 case, Nebraska Press Association v. Stuart, a unanimous Court noted the presumption against prior restraint was stronger than any other speech restriction.
“The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” the ruling read.
The Court has allowed for limited prior restraints in situations involving national security. For example, war correspondents who deploy with the military may be subject to certain forms of censorship.
Mere invocations of national security, however, are not sufficient to allow prior restraint. In New York Times v. U.S., the Supreme Court allowed publication of the Pentagon Papers despite the Nixon administration’s insistence that their release would harm the American war effort in Vietnam. Some of the documents in dispute related the most sensitive dimensions of U.S. strategy, but the justices reaffirmed the right of the paper to publish.
Trump’s lawyers are certainly aware of the precedential adversity, and are unlikely to pursue a serious legal challenge against Henry Holt. Instead, they may be pursuing a strategy of intimidation, hoping the threat of litigation and its attending expenses will dissuade the publisher from further printing.
Such threats have been successfully employed against media companies in the past. The Brown & Williamson Tobacco Corporation threatened to sue CBS for interfering with a contract before the network aired an interview with a former executive turned whistleblower. Though the legal theory the company proposed was novel, CBS buried the interview.
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