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

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.

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