That Donald Trump is no friend of a free press is hardly news. Until now, though, his rhetoric has mainly been red meat to fire up his base and try — unsuccessfully — to deter rigorous coverage of him and his administration.
As of Thursday, that’s changed. The War on the First Amendment now is really on.
With his lawyers sending cease-and-desist letters to former strategist Steve Bannon, and Henry R. Holt, the publisher of the forthcoming Fire and Fury by Michael Wolff, detailing deep dysfunction at the heart of Trump’s election and administration, the president is employing use two of the oldest legal tricks in the book — prior restraint and sedition — as weapons of press destruction.
Prior restraint is just another word for censorship, an act of government to silence critical or unflattering coverage by the press or public. The president’s cease-and-desist letter, as reported by the Washington Post, calls on the publisher to “immediately cease and desist from any further publication, release or dissemination of the book.”
It also threatens legal action if Holt permits the publication of any excerpts or summaries of Wolff’s book, which details much of the inside baseball of the Trump reign so far. Among it’s bombshell claims are that Trump didn’t want to be elected, that his wife Melania cried tears of sadness on learning her husband had won the presidency, and that nearly all members of the Trump inner circle consider him unfit the lead the nation.
The biggest bombshell of all, of course, was former strategist Bannon’s characterization of meetings between the Trump campaign and Russians in Summer 2016 as “treasonous.”
While there’s legitimate debate over Wolff’s reporting and his journalistic reputation, there can’t be any serious debate over the constitutional legitimacy of Trump’s response in trying to block publication of Fire and Fury.
The U.S. Supreme Court has never upheld a prior restraint against publication of a book that is critical of a public official. It’s never upheld a prior restraint of such a book, even when the public official claims the material is potentially defamatory.
The latest Trump anti-press tirade hearkens to the famous Pentagon Papers case of 1971, which will be dramatized nationwide starting next weekend in the Steven Spielberg-directed The Post, concerning the WaPo’s role in exposing government lies during the Vietnam era.
While the justice’s voted 6-3 in 1971 to let media publish the Papers, which government lies over Vietnam and were obtained by one of the biggest leaks of government secrets in history, not one of the justices believed that the government had shown the necessity of censorship.
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,” the Court ruled in 1971. Lower courts had ruled in the case the government had not met its burden to show that publication would harm national security. “We agree,” the Court curtly noted regarding the Pentagon Papers.
Until Thursday, no president had tried to stop publication of critical reporting of his administration or himself.
Like prior restraint, sedition is a throwback to English common law, of a time when mere criticism of royalty or government was enough to land one in jail. America briefly flirted with sedition laws in the late 18th Century, but American voters rejected it, and legal scholars universally agree it’s fundamentally antithetical to First Amendment values.
That doesn’t mean that governments haven’t tried to re-introduce sedition laws by other means, such as civil lawsuits filed by government officials posing as private citizens. That was the case in 1964, when an Alabama city commissioner sued the New York Times for libel over its coverage of his official conduct. The commissioner, L.B. Sullivan, believed his personal reputation had been harmed and won a $500,000 judgment against the Times.
But the Supreme Court called the libel ruling for what it was — a sedition prosecution — and invalidated the verdict. The Court said that Sullivan had shown no real evidence that his reputation had been harmed, that the errors in the Times’ pages were trivial, and that the real function of the lawsuit was to discourage journalists from covering the Civil Rights movement.
In one of the most famous First Amendment quotations ever penned, Justice William Brennan wrote in the Sullivan case that “the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.”
We hear much about Trump’s lack of intellectual curiosity, that he knows little of even the text of the Constitution, and that he’s a remarkably poorly read man. It’s likely he knows little or nothing of either the Pentagon Papers or Sullivan cases.
But let’s make it clear: Jan. 4, 2018, will go down as the date that Donald Trump’s War on the First Amendment become more than a rhetorical device. It’s now a real battle, and he must not win.