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What Is Prior Restraint?

By Christopher Coble, Esq. | Last updated on

If Michael Wolff'sTrump tell-all book, Fire and Fury, reminds you of Shakespeare, it's probably the bard's take on life from Macbeth: "it is a tale / Told by an idiot, full of sound and fury, / Signifying nothing." The same might be true of the bluster around the book, with Trump's lawyers (as usual) sending a threatening cease and desist letter, and publishers responding in kind.

Trump clearly didn't want the book to be published (or maybe he has a stake in the book and is boosting sales by tweeting about it), but does the president or the courts have the power to ban a book before it comes out?

Prior Restraint and the Press

Part of the freedom of the press guaranteed by the First Amendment is a prohibition on prior restraint, meaning that the government, for the most part, cannot censor publication of newspapers, magazines, or books. Prior restraint has been called "the essence of censorship," and the First Amendment imposes a heavy presumption against the validity of any prior restraint.

While there may be exceptions for matters of national security, the Supreme Court has ruled (in the case involving the Pentagon Papers) that prior restraint on the freedom of speech is almost never justified. All nine justices couldn't set a single standard on exactly when the government could impose a prior restraint on free speech, but most agreed that it was limited to instances where the publication of information could immediately endanger U.S. soldiers.

Efforts to Intimidate

While not the release of a previously secret Department of Defense report, Wolff's Fire and Fury is a non-fiction work, and it's already been published, so Trump's response was to claim the book was tantamount to "defamation by libel," and demand publishers halt distribution of the book. Macmillan CEO John Sargent called the president's effort to quash the book "flagrantly unconstitutional":

"A demand to cease and desist publication -- a clear effort by the President of the United States to intimidate a publisher into halting publication of an important book on the workings of the government -- is an attempt to achieve what is called prior restraint."

Whether Trump intends to follow through on his all-too-common threats of litigation remains to be seen.

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