The United States government filed a lawsuit in June 2020 seeking to suppress the publication of former National Security Advisor John Bolton’s book about his work in the Trump Administration, even though the book the government seeks to suppress had already been distributed around the world and excerpted on the front pages of major newspapers. The sweeping injunction the government sought would bind not just the author but also the publisher, which was not made a party to the suit, as well as distributors and booksellers that the government did not even identify.
Together with the National ACLU and the Knight First Amendment Institute at Columbia University, we filed an amicus brief urging the court to deny the government’s motion for a temporary restraining order to suppress distribution of the book because such an order would violate the First Amendment. In the Pentagon Papers case in 1971, the Supreme Court emphasized that any prior restraint against the publication of matters of public concern “bear[s] a heavy presumption against its constitutional validity,” N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (quotation marks and citation omitted), and the Court rejected an attempt to impose a prior restraint on publication of the Pentagon Papers (a classified study of the U.S. involvement in Vietnam). And in any event, the cat is out of the bag, so an injunction would not, in fact, prevent any irreparable harm to the interests of the United States even if the book does contain classified information—which the government found, prior to filing its lawsuit, that it did not.
The court denied the government’s motion, concluding that because thousands of copies of the memoir had been distributed, the government would not suffer irreparable harm in the absence of an injunction.