Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Mixed Outcome
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The United States District Court of Columbia denied the motion asking the Court to grant a temporary restraining order and preliminary injunction to enjoin former National Security Advisor John R. Bolton from publishing his memoir titled The Room Where It Happened. The United States Government brought the motion ahead of the national release of the book slated for Tuesday June 23, 2020, maintaining that the book contained sensitive information that could compromise the national security of the United States. The Court agreed that the book likely disclosed classified information in violation of nondisclosure agreements, however, it held that the government failed to establish that the injunction would prevent irreparable harm. In arriving at its decision, the Court observed that more than 200,000 copies of the book had already been shipped across the United States, thousands of copies were shipped to booksellers around the world and excerpts from the book were currently available online. The Court therefore reasoned that an injunction was useless at this time as “the horse is not just out of the barn—it is out of the country” and it would not “order a nationwide seizure and destruction of a political memoir.”
The Plaintiff is the Federal Government of the United States of America, while the Defendant, John R. Bolton is a former National Security Advisor that served in the government of President Donald Trump, directing and supervising the National Security Council from April 2018 till September 10, 2019. Within two months of leaving office, the defendant had signed a contract with the publisher Simon & Schuster to write a memoir titled, The Room Where It Happened, cataloguing his experiences during his eighteen-month period serving as the National Security Advisor of the United States and in particular his interactions with President Donald Trump. As part of the conditions of employment into government services, employees of the government of the United States must sign Non-Disclosure Agreements in respect of sensitive information that may impact on the national security of the United States. Bolton signed two such agreements. The first, Standard Form 312 prohibits disclosure of classified information without prior written authorization of the US Government, and any violation of which could result in the assigning of all “royalties, remunerations or emoluments” received in relation to such disclosure, to the US Government. The second, Form 4414 outlined protocols for handling highly classified sensitive compartmented information (“SCI”), and also required written authorization for any disclosure.
On December 30, 2019, in order to avoid inclusion of anything classified as sensitive information in his book, the defendant submitted the draft manuscript of his book for prepublication review overseen by Ms Ellen Knight, the NSC’s Senior Director for Records, Access, and Information Security Management alongside a member of her staff. Ms Knight personally undertook a detailed, iterative prepublication examination of the 500-page manuscript and the process lasted for almost four months. In the process, the defendant was required to make a number of edits and revisions of the manuscripts. On April 27, 2020 Ms. Knight notified the defendant that “that’s the last edit I really have to provide for you,” confirming her opinion that there was no classified information contained in the revised manuscript and that the defendant should receive the pro-forma customary letter confirming that he was authorized to publish the book later in the afternoon of the April 27, 2020. However, the said pro-forma customary letter which is the official authorization to publish the book was not made available to the defendant that afternoon or any time soon thereafter. When the defendant and his publisher, Simon & Schuster, believed that the prepublication review process had been abused despite the confirmation that the manuscript does not contain a sensitive information by Ms Knight, the book was therefore taken for printing and was set for release on Tuesday June 23, 2020.
On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to the defendant claiming the manuscript still contained some classified information, as at that time, the defendant had indeed already delivered a final manuscript to his publisher for printing and shipping. In response, the defendant’s counsel, on June 10, 2020 replied to Mr. Eisenberg, explaining that the an extensive prepublication that spanned over a period of four (4) months including edits and revision was conducted and overseen by Ms Knight and the manuscript was finally confirmed as containing no sensitive information. Furthermore, the defendant’s counsel clearly stated that the defendant’s publisher Simon & Schuster had already printed, bound, and shipped the book to booksellers across the United States and around the world with some copies of the book already with major newspapers and media houses and that it was even too late for the defendant to stop the book from being available to the public on June 23, 2020.
On June 16, the plaintiff delivered to the defendant a copy of the book with ample redactions which were quite expansive and more importantly, deleting the parts that describe a significant part of President Trump’s conversations with his advisors and foreign leaders and the ones where President Trump is portrayed in bad light. On June 17, 2020, the Plaintiff filed this lawsuit by a motion asking for a temporary restraining order and preliminary injunction to enjoin the defendant from publishing his book. In response, the defendant on June 18, 2020 filed a Motion to dismiss the Plaintiff’s Motion for Preliminary Injunction. On June 19, 2020, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA, and KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY filed brief as Amici Curiae.
In its motion, the Plaintiff had asked the court to grant Temporary Restraining Order (“TRO”) or Preliminary Injunction that would specifically:
The defendant argued in his motion to dismiss that “[i]t is difficult to conceive of speech that is closer to the core of the First Amendment than speech concerning presidential actions in office, including actions at the heart of the President’s impeachment, and it is difficult to conceive of a greater attack on the First Amendment than the suppression of that speech in the service of a reelection campaign.” [p. 2] To that end, they pressed that “the White House is attempting to misuse the national-security apparatus of the executive Branch to censor Ambassador Bolton, and the Government is asking this Court to tie the gag.” [p. 43]
Based on the above premise, the defendant countered that the First Amendment does not allow the Government to “clasp its hand over the mouth of a citizen attempting to speak on a matter of great public import” The defendant in his brief quoted in support of the above submission the holding of the court in Carroll v. President & Comm’rs of Princess Anne, 393 U.S.175, 181 (1968) that “Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment,” and that political speech “is the essence of First Amendment expression,” as held in McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)” The defendant further submitted that prior restraint of political speech fundamentally undermines free speech which is at the heart of American constitution and that even mere allegation that “the information to be revealed threatens ‘grave and irreparable’ injury to the public interest.” is not enough to suppress speech New York Times Co. v. United States, 403 U.S. 713, 732 (1971).
The Amici in their brief also submitted that to justify a prior restraint against the defendant, the Plaintiff must satisfy one of the most stringent tests in all of American law which is a recognition of the weight “our Constitution gives to the freedoms of speech and the press, as well as the public’s right to know.” [p. 10] Citing the Pentagon Papers, they observed, “that the mere fact that information is properly classified does not mean that the government is entitled to enjoin its disclosure.” The Amici conclude that the Plaintiff certainly had not justified the extraordinary remedy it sought based on the facts presented.
On the sufficiency of the remedy sought, the defendant submitted that the injunctive reliefs sought by the Plaintiff cannot redress the alleged injury as over 200,000 copies of the book have been printed, bound and shipped across the United States, thousands of copies already distributed abroad with some other copies already with major newspapers ahead of the national release on Tuesday 23, 2020. The defendant therefore argued that “The redressability prong is not met when a plaintiff seeks relief against a defendant with no power to [stop the injury from occurring].” Bronson v. Swensen, 500 F.3d 1099, 1111 (10th Cir. 2007); see also Duit Const. Co. Inc. v. Bennett, 796 F.3d. This is therefore not a subject of debate as hundreds of thousands of copies of the book had even left the control of the defendant and his publisher as at the time of this suit.
Judge Royce C. Lamberth delivered the Order of the District Court of Columbia in this case. The main issue the court considered in the suit is whether the Plaintiff is entitled to the injunctive reliefs sought. The four factors the court considered are:
(1) a substantial likelihood of success on the merits,
(2) that the movant would suffer irreparable injury if the injunction were not granted,
(3) that an injunction would not substantially injure other interested parties, and
(4) that the public interest would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). [p. 4-5]
In this consideration, the Court relied on the case of Winter v. Natural. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) which establishes that a Plaintiff (movant) must show all the four factors listed above in order to earn the injunctive reliefs sought.
In consideration of the first factor which is on the likelihood of the success of the Plaintiff on the merits, the Court held that the Plaintiff has a likelihood of success in the case against the defendant. In establishing this, the Court first noted that the defendant is a former National Security Advisor to the President of the United States who by virtue of his office, was a custodian of many national secrets and sensitive information. The District Court Judge noted that the defendant “rushed” to write the account of his experiences in office into a 500 page manuscript and while same was still under review, he proceeded to print the book. The Court further noted that the defendant proceeded into printing even without notification to the Plaintiff. This gamble exposes Bolton to future litigation which could result in not only a loss of his book profits, but also of criminal liability.
The Court noted that the plaintiff submitted some classified declarations for the Court’s ex parte review in camera ECF No. 4. and that on June 19, 2020, the Court held a sealed ex parte hearing for further in camera review with the Plaintiff ECF 6/19/20. Upon review of the classified materials, as well as the declarations filed on the public docket, ECF No. 3-1–5, the Court held that it was persuaded that defendant “likely jeopardized national security” of the United States by disclosing classified information in violation of his nondisclosure agreement obligations in his book. [p. 6] The Court expressly observed that prepublication review is not only constitutional but that the government has a substantial interest in “assuring secrecy in the conduct of foreign intelligence operations” McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983). This is a re-statement of the position in the case of McGehee. In the words of the Court “First Amendment rights are preserved so long as restrictions “protect a substantial government interest unrelated to the suppression of free speech,” and “the restriction [is] narrowly drawn to ‘restrict speech no more than is necessary to protect the substantial government interest.’” Id. at 1142–43 (quoting Brown v. Glines, 444 U.S. 348, 354–55 (1980)). The Supreme Court agrees: “[T]his Court’s cases make clear that—even in the absence of an express agreement—the CIA [can] act to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.” Snepp v. United States, 444 U.S. 507, 510 n.3 (1980)” [p. 7]
In consideration of the second factor, whether the Plaintiff will suffer an irreparable injury if the injunction is not granted, the government’s argument failed. The Court observed that during the hearing of the suit, it was noted that more than 200,000 copies of the book had already been shipped across the United States, while thousands of copies had been shipped to booksellers around the world, with excerpts from the book available online. In fact, a CBS News reporter even clutched a copy of the book while questioning the White House press secretary at the hearing of this case. On this note, the Court therefore described the hopelessness of the injunctive reliefs sought by the Plaintiff when the Court declared that “the horse is not just out of the barn—it is out of the country”
Further, the fact that the Counsel for the Plaintiff still pressed for an injunction ordering the defendant “to instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party” was proof that the defendant himself could not do anything to remedy the situation as copies of the book were already in third parties’ hands who were not parties to the suit, could not be reached and the copies of the book werw irretrievable from them. The Court expressly declined this invitation by the Plaintiff and declared that it would not “order a nationwide seizure and destruction of a political memoir.”
Since the Motion had failed the test of redressability, proceeding further to evaluate the motion of the Plaintiff on the two remaining factors of whether an injunction would substantially injure other interested parties and would the public interest be furthered by the injunction was unnecessary. The Court expressly noted that any injunction granted would be toothless that it cannot injure anyone and public interest would be nominally served at this stage. The Court, however, noted that the defendant seems to have exposed himself to both civil and criminal liability as he has “gambled” with the national security of the United States.
In the end, the Court held that the government failed to establish that an injunction will prevent irreparable injury and the injunction sought was accordingly denied.
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