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Stop the Presses: How Litigants Use the Courts to Try to Gag the Press

Litigants are going to court with a once rare request: an order to stop news organizations from reporting the news

On June 26, 1971, Alexander Bickel, the famed lawyer, appeared before the Supreme Court. The last two weeks were something of a blur. On June 13, The New York Times began publishing portions of a classified history on the war in Vietnam — the Pentagon Papers.

Within days, in the face of the government’s claims that national security would be harmed by publication, a federal appellate court in New York ordered The Times to stop publishing the classified materials by issuing what’s called a “prior restraint.”

According to Bickel, the prior restraint was unconstitutional — an affront to the First Amendment. In fact, the rule against prior restraints, he said, was “a rule more solidly entrenched in the First Amendment” than any other. It was “deeply part of the formative experience out of which the First Amendment came.”

The problem with prior restraints, he argued, was that they “fall on speech with a special brutality and finality and procedural ease of all their own which distinguishes them from other regulations of speech.” He added, “If a criminal statute chills speech, a prior restraint freezes it.”

Four days later, despite arguments from the government that continued publication would pose a “grave and immediate danger” to the United Stated, the Court sided with Bickel.

According to the Court, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Parties seeking prior restraints must then carry a “heavy burden of showing justification for the imposition of such a restraint.” The government, it said, failed to make that showing.

That ruling, now some fifty years old, said what we always knew: if the First Amendment means anything, it means litigants can’t use the courts — except in the most exceptional of exceptional cases — to prevent publication of the news. Instead, they are left to attempt to obtain damages for publication if they can.

If the Pentagon Papers case was not sufficiently exceptional to merit a prior restraint, it should be difficult to imagine a case that would be. If military secrets are not enough, then what possibly could be?

This hasn’t stopped litigants, especially recently, from trying though. These attempts — big and small — are, it seems, normalizing what had once been an abnormal request. And, some courts are taking the bait, issuing orders in cases with much less at stake than in the Pentagon Papers.

The timing is bad too. These inroads come at a time when several Justices on the Supreme Court have questioned the motives of the press in other areas of the law. Justice Neil Gorsuch recently lamented “the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’”

There’s some suggestion, in fact, that this Supreme Court is the least press-friendly Court in decades. Professors RonNell Andersen Jones and Sonja West recently observed that “the Justices are now less likely to talk about the press than they were in the past, and that, when they do, it is more often in a negative light.”

While recent attacks by Justices have been aimed at a landmark press freedom ruling in the defamation context, maybe it’s not just tried-and-true principles in defamation cases the media needs to worry about. Maybe rolling back prohibitions on prior restraint is next on the agenda.

Take one recent example. Project Veritas, the conservative activist organization, sought successfully prevented The New York Times from reporting certain information relating to it.

According to Project Veritas, prior restraint was appropriate because The Times obtained its privileged attorney-client work product and published it without authorization.

A trial court agreed, finding that the work product was not a matter of public concern thus excusing Project Veritas from having to carry the otherwise heavy burden to overcome the presumption that prior restraints are unconstitutional.

It was only this Thursday that an appellate court finally lifted that prior restraint against the The Times — one that had been in effect for months. Yet, the court declined to vacate the order outright, saying it would revisit the issue on more briefing.

While the Supreme Court has cautioned that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the ability of Project Veritas to achieve what the United States government failed to the Pentagon Papers case for weeks and weeks is serious cause for concern.

Other examples abound.

Over the summer of 2020, the U.S. government sued John Bolton, Donald Trump’s former National Security Advisor, in an attempt to force Simon & Schuster not to publish Bolton’s book The Room Where It Happened. A week later, Trump’s brother sued Mary Trump and Simon & Schuster to prevent the publication of Too Much and Never Enough.

Neither ended up successful. But while the judge overseeing the Mary Trump case issued a ringing endorsement of the First Amendment, the federal judge in the Bolton case decided the issue on a technical point.

The books had already been shipped, so the “horse was already out of the barn, indeed the country.” There was nothing the court could do. Yet, there was an indication from the judge that, perhaps, had the books not been distributed already, the case would have been a closer call.

Elsewhere, just this month, Johnson & Johnson sought an order from a bankruptcy judge to prevent Reuters, the international news service, from publishing a story that included allegedly confidential internal pharma documents.

Reuters published anyway, arguing in court documents prior to publication that the order J&J sought was “among the most extraordinary remedies a litigant can request under the law.”

Prior restraints affect local journalism too.

In December 2000, the City of Chicago tried to obtain a last-minute prior restraint from a federal judge to prevent the broadcast of confidential police bodycam footage by CBS Chicago. That footage showed the Chicago Police Department executing a warrant on the wrong apartment.

CBS, like Reuters, went ahead and broadcast the report, and minutes into the broadcast a federal judge denied the request for prior restraint, saying that as a non-party to the case CBS was “not subject to the confidentiality order.”

In November 2021, one of the richest men in South Dakota sought to prevent the news organization ProPublica from reporting on an attorney general investigation into child pornography.

The judge, however, denied that request, saying that it would violate the First Amendment. Still, ProPublica was embroiled in related proceedings for months.

Also in November, the wife of a New Orleans police officer who was subject to an investigation by the local Fox station sought a temporary restraining order against the continued broadcast of an investigative series. As in South Dakota, the judge ultimately denied the request.

Surely there are other examples around the country in recent years too. And while a smattering of cases, many unsuccessful in their attempts to obtain a prior restraint, doesn’t necessarily spell the end to the de facto prohibition on such orders, it may well be the beginning of a worrisome trend.

Press freedoms tend not to be attacked in a frontal assault, but instead from all sides, over time — a war of attrition that seemingly never ends. And in a world where a Supreme Court has little regard for previously unassailable precedent, the press, and the public should take notice even of minor incursions like these.

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Matthew Schafer

Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer

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