Global Freedom of Expression

Español العربية

“The Room Where It Happened” and the Happening of Free Speech

Key Details

  • Region
    North America
  • Themes
    Content Regulation / Censorship, National Security

On Tuesday June 23, 2020, booksellers across the United States and around the world were finally able to satisfy the appetite of their readers, when one of the most anticipated books of the year was officially released. Even though there was an intense last-minute legal battle to scuttle the release of the political memoir, “The Room Where It Happened” could not even be stopped in a court room. John R Bolton, who authored the book as a catalogue of his experiences while he served as National Security Advisor (NSA) to the Donald Trump-led administration from April 2018 to September 10, 2019, secured a publishing deal with Simon & Schuster for the memoir within two months of leaving office as NSA. While fielding questions from ABC News’ Chief Global Affairs Correspondent, Martha Raddatz, in an exclusive interview, Bolton stated that President Donald Trump did not want the book to be published before the 2020 Presidential Election, scheduled to be held on Tuesday November 3, 2020, because of the unfavorable account of his presidency contained in the book. In his words, Bolton declared that “[t]he president isn’t worried about foreign governments reading this book. He’s worried about the American people reading this book.” The Economist had described the book as “A book of damning details” while the Washington Post characterized the book as “The most substantive, critical dissection of the president from an administration insider…[which] lays out a long series of jarring and troubling encounters between the president, his top advisers and foreign leaders.”

The United States Government had approached the court on June 17, 2020 to stop the publication of the book scheduled for Tuesday June 23, 2020. Bolton, through his lawyers, immediately filed a defense to the suit.  In his ruling, the presiding Judge, Royce C. Lamberth of the District Court of Columbia refused to grant the motion brought by the United States government to stop the publication of the book or to recall all the copies of the book already in circulation. The court noted that at the time of the hearing of the case, over 200,000 copies of the book had been shipped across the United States ahead of the national release date while thousands of copies were also available in other countries. The Judge reasoned that granting the motion would be useless. In his words “the horse is not just out of the barn—it is out of the country.” The learned judge went further and held that the court would not “order a nationwide seizure and destruction of a political memoir.” The injunctive reliefs sought by the United States government were denied accordingly.

By comparison, the European Court of Human Rights (ECtHR) similarly disallowed injunctions in the case of The Sunday Times v. United Kingdom (No. 2) delivered on November 26, 1991. In that case, the European Court held that injunctions sought to stop the publication of the book Spycatcher by Peter Wright were not necessary since the contents of the book were no longer secret particularly in light of the book’s publication abroad. Peter Wright, who had previously worked as a senior member of the British Security Service (MI5) from 1955 to 1976, had authored Spycatcher and sought to publish it in Australia where he was living. The book discusses the operational organization, methods and personnel of M15 and gives an account of illegal activities carried out by the Security Service.  The Attorney General of England and Wales instituted an action for an injunction against the publication of the book. The Australian court however held that the contents of the book were not entirely confidential since similar allegations had been made by other officers and the publication of the book therefore would not be detrimental to the British Government or the Security Service. In England, injunctions were granted against The Sunday Times which had published the second installment of the serialization of Spycatcher around the same time the book was published in the United States, and the case was then taken before the European Court of Human Rights. The Court held that the injunction against the publication of the book did violate Article 10 because it was not necessary in a democratic society when balancing national security interests versus freedom of expression because all the subsequent publications had essentially published the same type of information that Spycatcher contained. The Court indeed reasoned that even though injunctions were sought at the outset, inter alia, to preserve the confidential character of information that ought to be kept secret, this was no longer necessary since the material was no longer secret particularly in the light of its publication in the United States.

Beyond the denial of injunctions sought by the United States government in Bolton’s case, two salient questions arose from the ruling of the court and they are (i) Did the court validly hold that Bolton disclosed classified information in his book? and (ii) Did the prepublication review as conducted by the United States government in Bolton’s case pass the hurdle of First Amendment? In providing a response to the first question, it is important to first have a look at the position of the court from excerpts of the ruling. The court stated on page 7 of its ruling that:

“The government submitted classified declarations for the Court’s ex parte review in camera. ECF No. 4. On June 19, 2020, the Court held a sealed ex parte hearing for further in camera review with the government. ECF 6/19/20. Upon reviewing the classified materials, as well as the declarations filed on the public docket, ECF No. 3-1–5, the Court is persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations”

From the excerpt above, it is clear that the government submitted to the court some classified materials purportedly contained in Bolton’s book and some classified declarations for ex parte review in camera on the basis of which the court concluded that it is “persuaded that Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations.” Bolton was not served with and didn’t have an opportunity to react to some of the classified information which falls short of the requirement of due process as provided in the Fourteenth Amendment. It must be noted that matters of “national security” can only be within the knowledge of security experts, officers of intelligence agencies or former officers of such agencies, and therefore Bolton should have been given an opportunity to review the classified materials submitted by the government, confront the government on the claims that the materials were sensitive information as contained in the book and also allowed to invite an expert witness to independently corroborate or refute the allegations. Further, the learned judge did not state that he had special training in matters of national security or classified information and even if he did, his opinion would still not have qualified as that of a witness to prove or disprove the allegations made by the government. It must be noted on page 14 of his defense to the government’s motion that Bolton stated that given his extensive career in matters relating to national security and foreign policy, he was and is an expert on what constitutes classified information and the proper handling of such information. It is therefore safe to assert that given that Bolton was not given an opportunity to confront the government on the alleged classified materials submitted to the court for ex parte and in camera review, the court did not validly conclude that Bolton disclosed confidential information in his book.

In answering the second question which is to know whether or not the prepublication review as conducted by the United States government in Bolton’s case passes the First Amendment hurdle, the following excerpts from the ruling of the court must be examined:

“In December 2019, Bolton submitted a draft manuscript to the NSC for prepublication review. Over the following four months, Bolton worked to incorporate the edits he received from the Senior Director for Records Access and Information Security Management at the NSC, Ellen Knight. These edits were iterative and extensive, and on April 27, 2020, Knight communicated to Bolton that she no longer considered the manuscript to contain classified material”

“Weeks passed without further communication between Bolton and the government. On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to Bolton that claimed the manuscript still contained classified information. Mitman Decl., Ex. J, ECF No. 3-15. By that point, Bolton had already delivered a final manuscript to his publisher for printing and shipping, without written authorization and without notice to the government.”

“For the purposes of resolving this motion, the Court is satisfied that the government’s prepublication review of Bolton’s book fell within these bounds.”

Prepublication review is a process by which former employees of intelligence agencies and the military in the United States have their books, biographies, pamphlets and other forms of retrievable communication reviewed before publication for the purpose of preventing publication of sensitive information that can jeopardize the national security of the United States. It must be stated that prepublication review is a form of prior restraint which more often than not leads to self-censorship as the author is constrained to make efforts to prune the contents of the book or material to the satisfaction of the government. Even when the author finds courage to write without fear of the government, his work is still subjected to the “slashing pen” of one who has a professional interest in finding things to suppress. However, while prepublication review has been hitherto held to be constitutional in a number of cases including in Bolton’s case, it must be unequivocally stated that the prepublication review conducted for Bolton’s book could not have passed a First Amendment test by any stretch.

Firstly, the prepublication review conducted on Bolton’s book violates the First Amendment in that it interferes with Bolton’s right to convey his message in a timely manner and that of the readers to receive the information contained in the book in a timely manner. It is clear that the book centers around the person and office of Donald Trump who is seeking a second term as President in the November 2020 election. The contents of the book are indisputably matters of public interest and importance that should not be subjected to needless delay because Americans deserve to receive information that may be of interest to them as they go to the polls to elect the next President. When Bolton became National Security Advisor, he was required to sign two nondisclosure agreements: the Classified Information Nondisclosure Agreement (the “Classified Information NDA”) and the Sensitive Compartmented Information Nondisclosure Agreement (the “SCI NDA”). Paragraph 5 of the SCI NDA states that “the purpose of the [prepublication] review described in paragraph 4 is to give the United States a reasonable opportunity to determine whether the preparation submitted pursuant to paragraph 4 sets forth any SCI.” Paragraph 5 also imposes a time limit of “30 working days from date of receipt” of the material to “act upon it . . . and make a response.” To be clear, record has it that Bolton’s manuscript was submitted for prepublication review on December 30, 2019, while Bolton and Ms Knight worked to review the book for a period of about four  months after which it was confirmed that the book needed no further edits because it contained no sensitive information as at April 27, 2020. Ms Knight informed Bolton that he should be able to have the written authorization for the book in the afternoon of April 27, 2020 but the authorization was not made available. Indeed, weeks passed without any update from the government to Bolton on a specific date or a timeframe for the issuance of the written authorization. After a while, Bolton instructed his publisher to publish the book. Bolton received no update from the government until June 8, 2020 when he was informed by John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC that the manuscript still contained classified information. Indeed, the notification by Eisenberg came about two weeks before the national release of the book. Aside from Bolton’s belief that President Trump did not want the book published before the Presidential election, a seemingly endless prepublication review is not consistent with First Amendment.

Secondly, it is obvious that dragging the prepublication review for a period beyond 30 working days without a response to Bolton contravened the provision of the SCI NDA itself as stated in its paragraph 5. According to SCI NDA, 30 working days of acting upon the manuscript and making a response means that the review will be conducted in 30 days and written authorization or disapproval will be served on the author within the said 30 working days. From December 30, 2019 to April 27, 2020, more than 80 working days passed without a written authorization from the United States government. Indeed, timeliness is fundamental in the process. Jonathan C Medow in his article The First Amendment and the Secrecy State opined that “a ‘mere’ thirty day delay can obliterate the value of political discourse; what is timely today may be irrelevant or inconsequential within a month.” This cannot be more relevant in Bolton’s case where many believe that a delay in the publication of the book could obliterate the value of the contents of the book in view of the approaching election.

Thirdly and finally, the review process conducted on Bolton’s manuscript undermines the First Amendment as it turned out to be arbitrary censorship instead of being guided by objective standards.  Medow’s view, cited in his article above, is apposite “[t]he temptation for officials . . .to oppose disclosure of embarrassing or politically damaging information is …irresistible.” and that “censors may almost instinctively translate an attack on the Agency into an attack on national security.” This indeed played out in prepublication review of Bolton’s book as disclosed in Bolton’s Memorandum to dismiss the motion for injunction sought against him by the United States government before the District Court of Columbia where it was stated that “On June 16, the Government delivered to Ambassador Bolton a copy of the book with wholesale redactions indicating the passages that it purportedly believes contain classified information. The Government’s redactions are extensive and sweeping, apparently eliminating passages describing or recounting a significant majority of the President’s conversations with his advisors and with foreign leaders. The Government also deleted numerous passages portraying President Trump in an unflattering light.” Deleting passages of the book that portray President Trump in an “unflattering light” negates free speech as protected by the First Amendment. Similarly, in the well-known ECtHR case of Handyside v. United Kingdom it was held that free speech includes the license to “offend, disturb or shock.” Indeed, free speech is no free speech, if we only permit the speeches we find acceptable and suppress the ones that offend us.

Furthermore, to seek to suppress the contents of the book via extended prepublication review because of an embarrassing or politically damaging description of the President is not acceptable and undermines the essence of First Amendment. In New York Times v. United States the Supreme Court held that the United States had a “heavy burden of showing justification for the enforcement of such a [prior] restraint” and that it failed to show that justification. In his concurring judgment in the New York Times case, Justice Brennan stated that he would uphold an injunction only upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Justice Stewart admirably held that the government should be able to show “that disclosure …will surely result in direct, immediate, and irreparable damage to our Nation or its people.” It is therefore apt to hold that before the prepublication review conducted on Bolton’s book could be said to pass the test of First Amendment, it would be that the deleted passages of the book would occasion direct, immediate and irreparable damage to the United States and not merely embarrassment to the person of the President.

The principle that freedom of speech and the press is at the heart of the First Amendment and cannot be abridged in any form, including by prior restraint, without clear justification is illustrated  in “The Room Where It Happened.” It can, therefore, be safely concluded that Free Speech did not only happen in the room in the West Wing of the White House or in the court room in the District of Columbia, but also in every other room around the world where the book may now be found.

Authors

Solomon Okedara

Legal Researcher
Barrister and Solicitor of the Supreme Court of Nigeria

Comments