How Trump’s efforts to ban critical books violate the Constitution

Previously published at WGBHNews.org.

For those keeping track of the various ways by which President Donald Trump is trampling on the Constitution, move this to the top of your list: his former lawyer Michael Cohen was sent back to prison earlier this month to prevent him from writing a tell-all book about Trump.

Cohen, serving a federal sentence related to various corrupt acts on behalf of the president, was allowed to go home when the COVID-19 pandemic hit. But he was locked up again after he refused to promise not to publish his Trump book, “Disloyal,” before the November election. Cohen was sprung for a second time by U.S. District Judge Alvin Hellerstein, who ruled last week that federal authorities had violated Cohen’s First Amendment rights.

“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, according to The Associated Press, adding: “Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose?”

The Justice Department’s short-lived effort to silence Cohen by imprisoning him was egregious even by the thuggish standards of the Trump era — but it was also just the third recent move by the president and his minions to prevent critics from publishing books about him. The others:

• Former national security adviser John Bolton’s book, “The Room Where It Happened,” was held up for months while undergoing review for the ostensible purpose of ensuring that Bolton did not reveal any classified information. That, at least, was a legitimate reason. But Bolton and his publisher, Simon & Schuster, ultimately chose to defy the White House after it became clear that the process was being drawn out for reasons of politics rather than protocol.

In allowing the book to proceed, federal judge Royce Lamberth wrote that Bolton may very well have been improperly revealing secrets — but that the First Amendment remedy for all but the most dangerous breaches of national security is to punish the perpetrator after publication, not to prevent publication ahead of time. According to NPR, Lamberth wrote that Bolton had “gambled with the national security of the United States,” but that “the government has failed to establish that an injunction will prevent irreparable harm.”

• Trump, through his brother Robert, sought to prevent the release of his niece Mary L. Trump’s devastating book about the president, “Too Much and Never Enough,” by claiming that she was violating a nondisclosure agreement she had signed many years earlier.

Although a lower-court judge granted Robert Trump a temporary restraining order, that order was overturned by Judge Hal Greenwald of the Supreme Court of New York. In a nice turn of phrase, The Washington Post reported, Greenwald wrote the Constitution “trumps contracts.”

Though the circumstances of Cohen’s, Bolton’s and Mary Trump’s books couldn’t be more different, there is a common thread: the First Amendment demands that publication not be prohibited, and that if the authors are to be subjected to any legal penalties, those penalties must come later.

The principle that prior restraint is the worst and most indefensible of assaults on free expression goes all the way back to the English poet John Milton, who in his 1644 tract “Areopagitica” argued against the requirement that printers obtain licenses on the grounds that everyone should be free to print what they wished without government interference.

In stirring language, Milton wrote that “though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Milton also anticipated modern First Amendment law by arguing in favor of unimpeded publication first, punishment (if warranted) after — though his ideas about what constituted proper punishment were suffused with a distinct 17th-century sensibility, writing that “the fire and the executioner will be the timeliest and the most effectuall remedy.”

In the 20th century, the U.S. Supreme Court ruled in two landmark cases that, with very few exceptions, punishment should come only after publication.

In Near v. Minnesota (1931), the court ruled that prior restraint could be invoked only in cases involving a serious violation of national security, obscenity or incitement to violence. Thus was a Minneapolis-based scandal sheet allowed to resume publication even though every previous issue had contained outrageous libels.

In New York Times Co. v. United States (1971), the court upheld the Near precedent and ruled that publication of the Pentagon Papers could resume because the national-security implications were not serious enough to warrant censorship — although a majority suggested that they might be serious to justify post-publication prosecution, as my friend and occasional collaborator Harvey Silverglate has shown.

In Trumpworld, the revelations of Michael Cohen, John Bolton and Mary Trump are so horrifying that they justify being repressed even more than the Pentagon Papers, the government’s secret history of the Vietnam War. Yet as President Richard Nixon argued at the time, the Pentagon Papers really did undermine the war effort. Today’s revelations have resulted only in embarrassment to the president.

And it continues. Last week The New York Times reported that Immigration and Customs Enforcement was blocking the release of a Netflix documentary that depicts the agency’s abuse and mockery of immigrants. The filmmakers, Shaul Schwarz and Christina Clusiau, said they’d been told that objections to their work extended “all the way to the top.”

Unfortunately, Schwarz and Clusiau had signed an agreement granting approval rights to ICE. And though that agreement supposedly included “strong protections for their journalistic independence,” as the Times put it, it’s now being wielded as yet one more way to protect Trump from scrutiny and criticism.

There is a school of thought that Trump’s ranting about the media — calling them “Enemies of the People,” threatening to loosen libel protections and the like — is little more than bluster. His two Supreme Court justices, regardless of what else you might say about them, appear to be as dedicated to protecting the First Amendment as their colleagues. And Trump rarely follows through on his threats.

But there is a connection between his rhetoric and his actions: anyone who speaks against him must be silenced and punished — even jailed and put at risk of death, as with Michael Cohen.

With federal troops cracking down on mostly nonviolent protesters against the wishes of governors and mayors, the scent of authoritarianism is in the air. Will we pay attention? Or will we simply move on to the next outrage, as we have so many times in the past three and a half years?

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