Judge Issues Preliminary Injunction Saying That The US Cannot Block WeChat, Says The Ban Raises 1st Amendment Concerns

from the good-to-see dept

While much of the news this weekend with regards to the President's plans to block Chinese messaging apps focused on the fake "deal" to avert a TikTok ban, things didn't go the President's way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department's details about the ban proved that its stated goal of protecting Americans was nonsense.

The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:

On this record, the plaintiffs have shown serious questions going to the merits of their First Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’ key platform for communication, slow or eliminate discourse, and are the equivalent of censorship of speech or a prior restraint on it.... The government — while recognizing that foreclosing “‘an entire medium of public expression’” is constitutionally problematic — makes the pragmatic argument that other substitute social-media apps permit communication. But the plaintiffs establish through declarations that there are no viable substitute platforms or apps for the Chinese-speaking and Chinese-American community. The government counters that shutting down WeChat does not foreclose communications for the plaintiffs, pointing to several declarations showing the plaintiffs’ efforts to switch to new platforms or apps. But the plaintiffs’ evidence reflects that WeChat is effectively the only means of communication for many in the community, not only because China bans other apps, but also because Chinese speakers with limited English proficiency have no options other than WeChat.

The plaintiffs also have shown serious questions going to the merits of the First Amendment claim even if — as the government contends — the Secretary’s identification of prohibited transactions (1) is a content-neutral regulation, (2) does not reflect the government’s preference or aversion to the speech, and (3) is subject to intermediate scrutiny. A content-neutral, time-placeor- manner restriction survives intermediate scrutiny if it (1) is narrowly tailored, (2) serves a significant governmental interest unrelated to the content of the speech, and (3) leaves open adequate channels for communication.... To be narrowly tailored, the restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.”... Unlike a content-based restriction of speech, it “need not be the least restrictive or least intrusive means of serving the governments interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals.”...

As for the supposed "national security" interests of the US government? The court says "yes, if only the DOJ shared any details."

Certainly the government’s overarching national-security interest is significant. But on this record — while the government has established that China’s activities raise significant nationalsecurity concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns. And, as the plaintiffs point out, there are obvious alternatives to a complete ban, such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security.

The court did not go into the various other claims by the plaintiffs, though if the case continues they'll come up later. However, in closing out the ruling, the judge uses the President's own words in the executive order against him. After the DOJ told the court that the WeChat ban was important for human rights because China heavily censors communications on WeChat... the judge more or less says "um, isn't that what you're now trying to do?" and points to the President's own words about free speech in this very executive order:

Finally, at the hearing, the government cited a Washington Post article contending that a ban of WeChat is a net positive for human rights: “WeChat it is a closed system that keeps its 1.2 billion users in a parallel universe where they can communicate as long as they don’t cross the lines, and banning it might eventually strengthen the voices of the Chinese diaspora.” This is another important point: the federal government — based on its foreign-policy and national security interests —may not want to countenance (or reward) the Chinese government’s banning apps outside of the Chinese government’s control and, more generally, censoring or punishing free speech in China or abroad. But as the President said recently in Executive Order 13925,

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution. The freedom to express and debate ideas is the foundation for all of our rights as a free people.

...

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans [including the plaintiffs and others in the U.S. WeChat community] follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

End result: the court puts a nationwide injunction saying that the Commerce Department cannot implement the WeChat ban it described last week.

Filed Under: 1st amendment, ban, china, donald trump, executive order, free speech, injunction, prior restraint
Companies: tencent, wechat

Judge Forbids Facebook Users Being Sued By A Cop From Publishing The Cop's Name On Social Media

from the [insert-Big-Lebowski-quote] dept

Eugene Volokh reports an Ohio court has hit a number of defendants in a libel lawsuit with an unconstitutional order forbidding them from posting the name of the man suing them. It's no ordinary man, though. It's a police officer who several attendees of a Cincinnati city council meeting have both identified and claimed used a racist hand sign while interacting with them.

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the “ok” sign at a City Council meeting in June – a meeting held to address concerns by those in the Black Lives Matter Movement.

They posted about it on Facebook and other online forums, leading the officer to file his lawsuit.

Nothing all that unusual about this. Someone with pretty thin skin was offended that other people said mean things about him and decided to sue about it. That the plaintiff is a police officer is a little different, but not unheard of. That the police officer talked a judge into allowing him to file pseudonymously and place his affidavit under seal is a bit stranger. From there, it just gets stranger and more unconstitutional

This is from Volokh:

I've also learned that the judge has issued a temporary restraining order—without any participation on the defendants' part—ordering them not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information." The order doesn't define "personal identifying information," but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person's "name."

Thus, the bloggers are banned from mentioning the police officer at all. They aren't just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer's name.

This order [PDF] only targets future posts. That's some prior restraint right there. And while the judge may have meant no one can publish anything like the cop's home address or personal phone number, the lack of specificity allows it to be read as banning the use of the officer's name.

Not that it's all that difficult to figure out who this officer is. Multiple attendees (who are now defendants in this lawsuit) posted the officer's name online and linked to what appears to be the officer's Facebook account. Searching through the defendants' social media profiles brings up the posts referring to the officer by name.

The officer's Facebook page has had all of its posts deleted. The header image has been replaced with this, which appears to be a direct response to those accusing him of flashing the "ok" sign at the city council meeting.

Officer Ryan Olthaus -- who was involved in the controversial killing of Dontez O'Neal in 2012 -- goes by the name "Michael Ryan" on his Facebook page. The pseudonym being used in the lawsuit against these social media users is "M.R."

That all seems to add up to Officer Pseudonym. His lawyer seems to feel the current, possibly unconstitutional order doesn't go far enough, though. The officer would also like to see the defendants forced to remove any previous posts about him. His attorney argues the posts are libelous because [checks filing] they were made by people who don't like cops.

Defendants posted these statements on their social media platforms, accusing Plaintiff of being a white supremacist in a climate of severe hostility toward police officers. Further, at least one Defendant threatened to dox Plaintiff -- to reveal his personal identifying information online -- seemingly for sport. Other posts include, “Fuck SWAT,” “Fuck 12,” “ACAB”, “1312” and many similar statements evidencing the Defendants’ hatred and malice toward the police, including the Plaintiff.

The court hasn't ruled that any of the posts being sued over are actually libelous. So, at this point, the officer has no legal basis to demand their removal. The officer has already been granted one broad restriction on the posting of his personal information (which includes his name) by the suit's defendants. Now, he wants to go even further. And he wants to do it while keeping his name from being tied to his dubious litigation.

Eugene Volokh (along with the Cincinnati Enquirer) are asking the judge to unseal the documents. And hopefully the defendants will challenge the restraining order and make the court rethink (or perhaps consider thoughtfully for the first time) its blanket ban on publishing this officer's personal information.

Filed Under: 1st amendment, cincinnati, criticism, defamation, free speech, ohio, police, prior restraint, ryan olthaus

Judge Does The Expected: Gets Rid Of Prior Restraint Order Against Mary Trump, Allows Her To Publish Her Book

from the 1st-amendment-wins-again dept

As we had fully expected a judge in NY has now tossed out the bogus restraining order against Mary Trump, the niece of President Donald Trump, regarding her book about the President and their family.

In a much more detailed order than his original Temporary Restraining Order, NY Supreme Court judge Hal Greenwald gives multiple reasons for rejecting the effort, lead by the President's lawyer Charles Harder but on behalf of the President's brother Robert Trump, to claim that the contract that was agreed to among various family members should block the publication of the book. Some had noted that the gag clause in the agreement between the various Trump family members was quite broad, and wondered how that might actually lead to problems with publication, but Judge Greenwald notes that the broadness works against the contract here:

Reviewing the Agreement and the words contained therein, considering what is known of the parties at that time and the circumstances of, what appeared to be somewhat nasty litigation, it is possible to read the Agreement and see a contract with a confidentiality clause. Yet, the clause is so overly broad, as to be ineffective.

He claims that Harder/Trump attempted to "misinterpret the Agreement" and says that they want the court to "puzzle the pieces" of the Agreement to read much more broadly than they should.

According to the above reading, the case is slam dunk. But it is not. Too many words, with too many meanings. The cost of the litigation that was settled should have been finalized with more specifics, more clarity, if the current situation was even comprehended, at the time the Agreement was signed

The Judge, following on the guidance from the Appellate court, makes it clear that Simon & Schuster is not "an agent" of Mary Trump, and therefore is not bound by the agreement. That was pretty much widely expected.

The bigger question, then, was what about Mary Trump. And here, the court says that Robert Trump has completely failed to show what irreparable harm there would be from Mary's book being published:

At this point, plaintiff asserts that the release of confidential information, no matter what it is amounts to irreparable harm. He is unaware of the information contained in the Book, in which case the court finds he does not sustain his claim; or there is already so much confidential information “out there” pertaining to the plaintiff, that it is moot for the court to even consider an injunction. In the instant matter, the movant has not shown sufficient information that he will be likely to have success on the merits of his case. Moreover, even if the court were to relax the standard applicable to likelihood of success, it still would fail. Plaintiff’s arguments in support of a finding in his favor on his Verified Complaint are unavailing. Accordingly, the Court rules that ROBERT TRUMP has not demonstrated by “clear and convincing’ evidence that he has a likelihood of success on the merits of his case.

Furthermore, the court later highlights one of the oddities of having the President's brother file the lawsuit, rather than the President himself: namely that it's likely that any "damage" should that come from the book would be targeted at the President. But the President is not the plaintiff:

In the matter before this Court, Plaintiff has failed to meet his burden of demonstrating, imminent, irreparable harm, to him (emphasis added). His allegations are unsupported and conclusory. They are without any specifics as to how he, ROBERT S. TRUMP will suffer irreparable harm. Remember the Plaintiff is ROBERT S. TRUMP and no one else. There has been nothing offered that demonstrates that the actions by MARY LTRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP.

I know that at least one amicus brief in this case, the one filed by Public Citizen Litigation Group had focused on this key point:

So far as we can see, every one of the disclosures about which Robert Trump’s lawyer has complained related to that lawyer’s far more famous client, Donald J. Trump, and says nothing about Robert, the only sibling who has invoked the NDA. Robert Trump lacks standing to enforce his brother’s rights; and my guess is that Donald Trump, although he made no bones about claiming publicly that his niece had no right to publish a book, made a deliberate choice not to expose himself to being deposed in this litigation by being a plaintiff.

The judge seems to have clearly recognized this point.

He also seems to have gotten the message from the appellate court about prior restraint:

Thereafter at the appellate level and in this Court in opposition, besides refuting plaintiff’s application for a preliminary injunction, MARY L. TRUMP’s papers contain a virtual history of First Amendment Rights and “prior restraint” caselaw. What follows herein is a brief synopsis of the law, in no way meant to be a complete recitation of all the caselaw and quotations provided by the attorneys for MARY L. TRUMP. It is proclaimed, the enjoining of the publication of the Book is classic “prior restraint” and cannot be tolerated. The Book is characterized as “political speech”. Procter & Gamble v Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). “Freedom of speech” is invoked N.Y.Times Co. v Sullivan, 376 U.S.254 (1964). Prior restraint is deemed to be unconstitutional. Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). It is noted that the release of the so-called Pentagon Papers, did not amount to prior restraint. In New York law, under Arcara v Cloud Books, 68 N.Y.2d 553 (1986) if the government is the one seeking to enjoin speech “public injury”, must be shown. Injunctions are seen as “state power”. There is a significant presumption against the constitutional validity of prior restraints, even if it concerns leafletting Org. for a Better Austin v Keef, 402 U.S. 415 (1971). This court finds that Alexander v United States 509 U.S. 544 (1993) dealt with criminal forfeiture of obscene material. It was found that the forfeiture was a criminal penalty, the material was not “taken” on the suspicion of being obscene, before a judicial determination. It was not a “prior restraint”. The papers overlook Near v Minnesota ex rel. Olson, 284 U.S. 697 where the US Supreme Court held that a Minnesota statute that found a newspaper that had published defamatory articles against public officials was a nuisance, and by being deemed a nuisance a court could permanently enjoin that paper from being published, was unconstitutional and further that this, prior restraint would be, “…the essence of censorship”.

He also quotes the judge in the similar case (also by Charles Harder) that tried to block the publishing of John Bolton's book, saying that "the horse is not just out of the barn, it is out of the country."

And finally, the judge adds a fun quip of his own:

Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.

Perhaps next time, the President and his family (and his censorship-happy lawyer) will think twice about trying to ban books. Given how many times this sort of thing has happened, though, I doubt much will change.

Filed Under: 1st amendment, book, charles harder, donald trump, hal greenwald, mary trump, new york, prior restraint, robert trump
Companies: simon & schuster

That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

from the free-speech-v.-prior-restraint dept

Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.

In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

S&S is not a party to the settlement agreement. The only basis offered by the plaintiff to extend the temporary restraining order to S&S are the allegations that S&S “intends to act” on Ms. Trump’s behalf in causing the publication of the book and that S&S is acting at Ms. Trump’s direction and in concert with her. However, these allegations are conclusory and not supported by any specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at 257). Since the predicate for the plaintiff’s application for a temporary restraining order is the existence of the confidentiality provision of the settlement agreement (and no alternate basis for an injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the settlement agreement, this Court perceives no basis for S&S to be specifically enjoined.

However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against "any agent" acting on a signatories' "behalf" may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:

While the plaintiff has alleged, in effect, that S&S is Ms. Trump’s agent, the evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.

So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.

It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:

The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election. Drawing the appropriate balance may well require in camera review of the book sought to be enjoined. Stated differently, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States.

So... the fight to publish the book will continue next week.

One element in this case that I haven't seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump's brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He's using the president's own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.

First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any "damages" from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above -- saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn't think a judge would engage in prior restraint either, and that turned out to be wrong.

Filed Under: 1st amendment, book, donald trump, free speech, injunction, mary trump, new york, prior restraint, robert trump, temporary restraining order
Companies: simon & schuster

NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

from the that-won't-last dept

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:

“The trial court’s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,” Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. “We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.”

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

“The actions of Mary Trump and Simon & Schuster are truly reprehensible,” Harder said, referring to the book’s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

“We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump’s breach of contract and Simon & Schuster’s intentional interference with that contract,” Harder added. “Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.”

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

Filed Under: 1st amendment, book, charles harder, donald trump, mary trump, prior restraint, robert trump, ted boutrous, temporary restraining order
Companies: simon & schuster

Charles Harder Tries And Fails To Censor Another Book About His Most Famous Client, The President

from the sorry-charles dept

Lawyer Charles Harder (who, yes, was once the lawyer for the guy who sued us) has built up a nice reputation now of the lawyer who tries and fails to stop people from saying stuff that upsets President Trump. You may recall that Harder, representing the president, threatened former Trump adviser Steve Bannon for his supposed quotes to author Michael Wolff. More recently, Harder, representing the Trump Campaign, has sued the NY Times, the Washington Post and CNN over various articles (often opinion pieces) that portray the President negatively.

His latest move, representing Donald Trump's brother, Robert Trump, is to sue Mary Trump, Donald Trump's niece, over her new book that is quite critical of the President. The argument in the lawsuit? That Mary Trump was violating a confidentiality clause that was part of the settlement of a legal dispute over the estate of Fred Trump -- another of Donald's brothers, and Mary's father. It took all of about a day for the judge to reject the lawsuit, basically because Charles Harder messed up the filing.

At the outset, the court finds that the submissions suffer from several improprieties. First, a preliminary injunction is an order obtained by motion in a pending action or special proceeding... The caption utilized refers to a probate proceeding which terminated in 2001 by entry of a decre and is, therefore, non-existent. Consequently, a motion seeking injunctive relief may not be made in that proceeding. To the extent the accompanying petition, bearing the same caption, is supposed to provide the jurisdictional basis for said motion, it cannot do so as that petition is fatally defective.

Beyond that, they picked the wrong forum for this request:

Insofar as the petition seeks a declaratory judgment, this forum is presumptively improper as such relief should be obtained by means of an action in the Supreme Court and not a special proceeding in this court....

Of course, it appears that Harder is planning to just keep going and try again by fixing his mistakes:

“Today, the Surrogate’s Court ruled that it does not have jurisdiction over the dispute,” Harder said in a statement. “Therefore, Robert Trump will proceed with filing a new lawsuit in the New York State Supreme Court.”

Mary Trump's lawyer, Ted Boutrous, said he hoped that Harder would stop, but recognizing that's unlikely, points out that no court may violate the 1st Amendment by imposing prior restraint and blocking publication of a book that is "core political speech."

Given Harder's history, it seems unlikely that he much cares about the 1st Amendment.

Filed Under: 1st amendment, charles harder, donald trump, free speech, mary trump, prior restraint, robert trump, venue

Schrodinger's Classified Info: Trump Argues John Bolton's Book Is Both False & Classified

from the not-how-it-works,-chief dept

As you've probably heard by now, earlier this week, the Justice Department went to court to sue former National Security Advisor John Bolton regarding his book (which is highly critical of the President), entitled The Room Where It Happened. Lots of people have lots of opinions regarding Bolton, Trump, and the book, but I'm going to focus specifically on the legal dispute here, which in some ways is reminiscent of the lawsuit filed over Ed Snowden's book, which meant that the government can take all the proceeds of that book.

The key issue in both of these lawsuits is that when you work in the US intelligence community, you are required to sign a lifetime contract that forbids publishing any manuscript or giving any speech related to your intelligence work, without the content first going through "pre-publication review." For years (going well beyond this administration) there have been claims that pre-publication review is used not just to protect classified information (its official purpose), but also to hide unclassified but potentially embarrassing information from public view. Indeed, there is a separate lawsuit, filed by Timothy Edgar and some other former intelligence officials challenging the pre-publication review process as a form of prior restraint and of creating chilling effects against speech, and thus against the 1st Amendment. In April, the judge dismissed that case.

The court rejected the prior restraint argument by noting that the plaintiffs signed a contract, and you can absolutely waive your 1st Amendment rights by contract if you so choose. The court is a bit more open to the chilling effects claim, but eventually rules against them, citing other cases that more or less said these kinds of government contracts are fine and not in violation of the 1st Amendment. It also suggests that if there's a remedy to be sought here, the proper venue is through legislative change, rather than through the judicial system. In summary, the court says:

Plaintiffs have thus fallen short of plausibly demonstrating that the challenged policies raise constitutional concerns under either of the two vagueness frameworks. The Court notes that they have also failed to link the redactions and excisions from their own works that they allege were arbitrary and discriminatorily motivated to a challenge to the PPR regimes as a whole.... Nor have they responded to Defendants’ observation that no Plaintiff has pursued judicial review of a PPR decision, as they are entitled to do.... While the Court appreciates the delay in publication that judicial review could entail, Plaintiffs have not demonstrated that such a delay on its own renders the PPR regimes constitutionally infirm, nor that review in a specific case would not be a more effective means of reviewing the alleged vagueness of a given PPR policy than a facial challenge. In any event, because none of the avenues that Plaintiffs have pursued for their vagueness claim are viable, the claim will be dismissed.

The plaintiffs in that case have since appealed.

With Bolton, there have been widespread reports that the administration deliberately slow rolled the pre-publication review process in order to try to keep the book away from the public prior to the November election. There have been reports of ongoing back and forth between the publishers and the administration, with some clear frustration expressed by the publishers/Bolton that pre-publication review is being used to stifle the book for the time being, rather than to actually scrub it for any classified material.

Given all that, it was announced that the book was going to come out anyway, leading the DOJ to sue. The lawsuit is just against Bolton, and not against the publisher, Simon & Schuster. The is, perhaps, a recognition that Simon & Schuster never signed a contract with the government, and preventing the publisher from releasing the book would have a much stronger prior restraint claim. Instead, the lawsuit just targets Bolton, and while (as with the Snowden book) it seeks to take the proceeds of the book, it also wants the court to order Bolton to tell Simon & Schuster to delay the book release, because of his own breach of contract.

That lead many people to claim that the government was not trying to stop the book from being published... However, that view did not last long. The day after the original complaint was filed, the government filed an application for a temporary restraining order and preliminary injunction. A hearing on this matter is happening today (about the time this post is being published).

From what a variety of legal experts have said it seems likely that (1) the book will still get published, but also that (2) the proceeds of the book will not go to Bolton, but will go into the US Treasury. Maybe. That said, there are some oddities here, and reading through the exhibits includes with the TRO application paints quite a story, suggesting that the administration is deliberately lying about whether or not the book actually contains any remaining classified material.

It does appear that Bolton and the government went through a fairly extensive pre-publication review over the past few months with a reviewer, Ellen Knight. Bolton and Knight met multiple times over the course of the past few months, with Knight detailing everywhere she found classified information, and Bolton responding and revising the work. Bolton ended up cutting out large chunks of the book in response to Knight's concerns about classified information. On April 27th, after yet another round of revisions, Knight told Bolton that she had no more concerns about classified info being in the book. At that point Bolton was told to expect to get the clearance. But that didn't come. Instead, the government at first seemed to ghost him. According to Bolton's lawyers:

When Ambassador Bolton asked when he could expect to receive the pro-forma closing letter confirming that the prepublication review process had been concluded, Ms. Knight cryptically replied that her "interaction" with unnamed others in the White House about the book had "been very delicate," and that there were "some internal process considerations to work through." She nonetheless thought the letter might be ready that afternoon but would "know more by the end of the day." They even discussed whether the letter should be transmitted by electronic transmission or by him physically picking up the hard copy. It has now been more than six weeks since the final revisions to the book, and Ambassador Bolton has not received the letter to which Mrs. Knight thought he was entitled. His inquiries of Ms. Knight as to when he would receive the letter documenting her agreement that the book contains no classified information have been answered with stiff and formal replies that she had nothing new to report. He had not heard from her, or anyone else at the NSC, since May 7....

What apparently happened after May 7th was that the White House magically found someone new, Michael Ellis (a political appointee who has not historically done pre-publication review), who claimed (magically) that the book was still full of classified info. Full paragraphs of it. He claims. Full paragraphs that (according to Ellis) "if made public, reasonably could be expected to cause damage, serious damage, or exceptionally grave damage to the national security of the United States." This despite Knight saying the exact opposite.

Of course, as all of this is happening, basically every major publication ran excerpts or discussions of the book. There was the article in the Washington Post talking about how Trump asked China's President to help him win the election (and supported Xi's use of concentration camps) based on reading a copy of the book. Tthe Wall Street Journal ran an excerpt talking about those same interactions with China, and the NY Times ran a story claiming that the impeachment inquiry should have looked at more than just Ukraine. Though, the NY Times also published a piece that was highly critical of the book, noting that it "swings between tedious and slightly unhinged" (which some might argue is an apt description of Bolton himself).

The President himself has gotten into the game claiming that the book "is a compilation of lies and made up stories" and that it is "pure fiction." Of course, that argument undermines the crux of the lawsuit and the push for the restraining order. Indeed, the filing for the TRO says there will be "irreparable harm" if the book is published -- which sort of conflicts with the "full of lies" claim:

The book Defendant intends to publish on June 23 contains classified information, including information classified at the Confidential, Secret, Top Secret, and Top Secret/SCI levels. This means it contains instances of information that, if disclosed, reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.... And Mr. Ellis specifically concluded, moreover, that “certain passages in the draft manuscript . . ., if disclosed, will damage the national security of the United States.”

Indeed, the conflict between the claims of falsity and classification, oddly, enable some level of confirmation to some of the events Bolton describes. Specifically, in the excerpt published in the WSJ, Bolton says that he would print Trump's exact words to China's Xi regarding helping Trump win re-election in November, "but the government's prepublication review process has decided otherwise." As Bradley Moss, who specializes in national security law, the fact that the administration wants that conversation classified is itself confirmation that the claimed conversation happened.

So there's a bit of a Schrodinger's cat issue here regarding the statements -- and whether they're lies, in which case, they're not classified, or they're truth, in which case they might be -- but can they possibly be both at the same time?

Another key point, as raised by Marcy Wheeler, details a different sort of contrast: the one comparing Bolton to another Trump National Security Advisor: Michael Flynn. Indeed, Wheeler makes the compelling case that it's pretty clear that what Flynn did seems to be a much bigger crime than what Bolton is accused of doing here:

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

But, even odder still: to support the claims that the Flynn prosecution was in error, the White House has been declassifying various transcripts of Flynn's calls to Russian ambassador Sergey Kislyak, and Wheeler contrasts such declassification with the demands to keep information classified regarding Bolton (by the very same people):

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

[....]

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Of course, there is a clear consistency in all of this: if it makes the President and his supporters look good, it's okay. If it criticizes the President, it's not okay. That, as always, seems to be the fundamental driving force behind this administration.

The one interesting wildcard in this is the judge the case was assigned to, Royce Lamberth (who you may remember for the benchslap he gave a copyright troll). It seems almost every litigator I know has an opinion about Lamberth, and they agree that if there's one thing that Lamberth hates more than anything else: it's the DOJ trying to over-classify shit. I have now heard from five separate lawyers making claims along those lines, and he's even complained publicly at a conference about this issue, in which he called out intelligence scandals in which judges rubber stamped claims of classification to block FOIA requests.

In other words, the DOJ may have pulled their worst nightmare as a judge in this particular case -- especially given the odd nature of the pre-publication review here (approving it, only to have someone else step in and say "nope.") You never know what will happen, of course, but hopefully we get to see Judge Lambreth in full government skeptic mode.

Filed Under: 1st amendment, classified info, donald trump, john bolton, nsa, pre-publication review, prior restraint, the room where it happened
Companies: simon & schuster

Federal Judge Thinks The Best Fix For An Accidentally Unsealed Court Doc Is Prior Restraint

from the welcome-to-America,-your-honor dept

The Chicago Sun-Times dropped a bombshell on city residents late last month with an article detailing the FBI's secret recordings of an Illinois politician's shady business dealings.

The FBI secretly recorded Illinois House Speaker Michael Madigan trying to get business for his private law firm from a developer brought to him by Ald. Danny Solis, who was weighing the developer’s request to build a hotel in Chinatown, according to a federal court affidavit obtained by the Chicago Sun-Times.

The affidavit makes clear for the first time that the federal investigation that has snared powerful Chicago Ald. Edward M. Burke extends beyond City Hall and into the Illinois statehouse, examining politicians’ longstanding practice of merging personal and political business.

The FBI's affidavit connected the conversational dots for those reading the court documents.

An FBI agent alleges in the 120-page affidavit: “I understand Solis to mean that by hiring Madigan’s private firm, [the developer] would ensure that Solis and Madigan would take official action benefitting [the developer] in their capacity as public officials.”

Normally, there's be no story here (meaning here at Techdirt) since this appears to be nothing more than the corruption we've come to expect from Illinois politicians. It's a fine tradition dating back to the city's founding, but hardly in our wheelhouse.

This would have stayed outside our wheelhouse if not for the judge presiding over this case. No one other than the judge and the involved parties were meant to see the details of these secret recordings. The details are the juiciest parts, though: the FBI got Alderman Solis to wear a wire by leveraging his personal life, which was apparently filled with "massage parlors and Viagra."

The affidavit submitted by the FBI was supposed to be filed under seal. A clerical error left it exposed and unsealed on the PACER docket for an unknown amount of time. That's how the Chicago Sun-Times got its hands on it. Greg Hinz at Chicago Business has more details -- this time coming from the judge himself.

None of that sat well with Magistrate Judge Young Kim, who court records indicate has been presiding over the Solis matter.

According to my sources, Kim re-closed the affidavit and ordered the Sun-Times not to print what was in it, presumably on grounds that premature publicity could undermine what appears to be an extremely wide-ranging federal probe into City Hall that has been underway for four years or longer.

Here's where we come in, along with the First Amendment. Judge Kim likely knows his prior restraint is unconstitutional. It couldn't have escaped him that this is not the proper response to accidentally unsealed court documents. Unfortunately, he's not the only judge who thinks the First Amendment doesn't apply to the end result of court clerical errors. But Kim had advance notice from the prosecution side.

Knowledgeable sources also say that Kim’s order came despite sentiment within the U.S. attorney's office here that a ban on publication, known as prior restraint, would be on shaky legal ground and likely inconsistent with past U.S. Supreme Court decisions in the famed Pentagon Papers case and others.

Kim did it anyway, resulting in the US Press Freedom Tracker taking notice of this unconstitutional blip on its radar. Judge Kim's order blows right past Supreme Court precedent and attempts to do damage to the First Amendment protections the Chicago Sun-Times enjoys.

Not that any of Kim's courtroom bluster matters... at least not at this point. The Chicago Sun-Times published its article anyway using the source document the court system failed to keep sealed. And now Chicagoans know yet another of their politicians engaged in questionable -- if not illegal -- business dealings. Readers are likely unsurprised, but even so, there's a strong public interest in political corruption, which should easily outweigh anything Judge Kim might try to summon in support of his free speech blindside hit. It's apparent the US attorney's office won't be backing him up, so he's going to have to go it alone if he's going to take a run at contempt of court hearings. Good luck with that.

Filed Under: corruption, fbi, free speech, illinois, michael madigan, prior restraint, sealed court documents, young kim
Companies: chicago sun times