(June 17) The Justice Department’s attempt to suppress publication of The Room Where It Happened, the new memoir by former national security adviser John Bolton, is constitutionally dangerous. By approving the lawsuit, Attorney General William Barr again proves his political hackery and legal unseriousness.
Fortunately, this assault on free speech surely will fail: The suit’s constitutional infirmity is obvious, and the Trump administration’s bad faith is manifest.
It is well-established that prior restraint of publication of matters of public concern is allowed only in the rarest circumstances. The most famous Supreme Court case disallowing prior restraint was the Pentagon Papers case, New York Times v. United States, from 1971. There, even though most of the justices agreed the information the newspaper wanted to publish was indeed classified, and that its publication likely would harm at least some U.S. interests, a 6-3 court majority still ruled that the First Amendment’s free-press guarantee forbade the government from banning its publication.
Indeed, even centrists Byron White and Potter Stewart, the two justices in the majority who were the most respectful of the president’s desire to protect national security through control of information, wrote that it is especially important for press freedoms to be guaranteed in the same realm of national security. Specifically, because the courts and Congress have less constitutional power to restrain the executive in matters of defense and foreign affairs, they wrote, “In absence of governmental checks and balances, the only effective restraint upon executive policy and power in [these realms] may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.”
In subsequent cases, the high court unanimously has ruled against prior restraint. Barr knows this. Yet Barr personally, and quite dishonestly, has been carrying the fight against Bolton’s book….
[The full column is here.]
