Bolton’s Legal Victory Was Actually a Setback for Free Speech

The government actually won a lot from its request.

By
6

Last week the Trump Justice Department tried and failed to prevent former National Security Adviser John Bolton from publishing his new book, The Room Where It Happened. The book is out today, thanks to a ruling over the weekend by Federal District Court Judge Royce Lamberth. Lamberth rejected the department’s broad request to halt publication. His order seemed on the surface like a victory for freedom of speech but was actually a setback. And for Bolton, the order was calamitous. 

The government had asked Lambert to order Bolton to halt publication of the book because it contained classified information in violation of contracts Bolton signed while in government. It also asked Lamberth to order Bolton’s publisher, Simon & Schuster “to retrieve and destroy any copies of the book that may be in the possession of any third party,” and for the order against publication to extend to everyone else “in the commercial distribution chain” of Bolton’s book, including Amazon, Audible, and your local bookstore. 

Few outside the government thought this gambit would succeed. Prior restraints on publication of this sort are strongly disfavored under the First Amendment. And in any event Lamberth lacked the power to prevent the government’s injury—the revelation of the secrets in Bolton’s book to adversaries—because the damaging information was already out. By the time the government brought its lawsuit, Simon and Shuster had already distributed hundreds of thousands of copies around the globe. A few hours after the filing, several reviews of the book, and an excerpt by Bolton, appeared in newspapers. “The surreal nature of the Government’s request to enjoin publication and distribution of the book was driven home,” Bolton’s lawyers noted, “when a CBS News reporter, holding a copy of the book in her hand, questioned the President’s press secretary about passages in the book on the White House lawn.” 

The government’s request for an injunction was such an obvious loser that it was puzzling why it was filed. The New York Times reported that some government lawyers feared that any attempt to block the book’s distribution “was doomed to fail and would make the government look inept.” The Times suggested that the department might have caved to President Trump’s pressure, as it had seemed to do in the past. “Especially in light of the pointlessness of the request for an injunction, it’s natural to view it as just the department carrying Trump’s water,” I speculated in the piece.

Keep reading with a free account
Create a free Dispatch account to keep reading Get Started ALREADY HAVE AN ACCOUNT? SIGN IN
6
By
Comments (6)
Join The Dispatch to participate in the comments.
 
  1. Avatar photo
    Saied

    Assuming nothing new comes out, then it comes down to the career government worker clearing the book, a political appointee stepping in, being trained after the decision that requires the decision, and classifying material after having been cleared earlier. Bolton will argue that it’s just politics as usual and win. He may have to go a few rounds, but you have to assume he walked into it knowingly.

    Collapse
  2. Avatar photo
    Jake

    I read recently that the prepublication process can only take 30/1 days. Is that not accurate? (I’m pretty sure it was on The Dispatch)

    Collapse
  3. Avatar photo
    John D. Wright

    Good article. I am torn because I care about free speech and I also care about national security. I think at minimum if it could be shown that people's lives are put in danger by something Bolton said then I would definitely prosecute. And rest assured I am no Trump supporter. On the flip side I hear loud and clear your points on over classification and wrongful classification.

    Collapse
    1. Avatar photo
      Don S.

      I believe it is better to err on the side of free speech. It seems at times that both Democrats and Republicans will use the stamp of national security to protect their own self interests at the expense of the country's. If you believe so strongly that the power of the government and the future of the country is better in your hands than the other party's, then your self- interest is the same as the country's. They should not necessarily have that right to decide.

      Collapse
    2. Avatar photo
      Mike from Jersey

      I agree with you John, excellent article and one you can really only find on a few other sites besides this one.

      I also doubt we'd have all this mess if Bolton just waited until Trump is out of office (likely Nov, but if not then, it wouldn't have matter to a reelection after that). I'm pretty sure this won't sway anyone in either direction. But I also understand that people wouldn't care as much if it were to be published after his presidency (i.e. it's all about the Benjamins and not really about any great service to the country).

      Collapse
  4. Avatar photo
    DougCLE

    Question (well, 2 questions, actually): First, if Lamberth issued a ruling on the retraction, but not on the breach of contract, can it be argued that these are two entirely separate cases? Second, if so, and given that Lamberth has already tipped his hand before the arguments of the second case have even completed, would Bolton's team be able to push for a different judge, saying Lamberth is compromised?

    Collapse