Table of Contents
First Amendment News 259: The unfolding Bolton book controversy
"Declare that, pursuant to Fed. R.Civ. P.65(d)(2), this order binds Defendant's agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant's book." (emphasis added.)
The above statement is from the government's civil complaint filed yesterday in the case of United States v. Bolton. The complaint comes against the backdrop of what is supposed to be the forthcoming release of "The Room Where it Happened: A White House Memoir" (Simon & Schuster, June 23) by former national security advisor John Bolton. In a CNN news story, it was reported that:
The Trump administration asked a federal judge on Tuesday to order former national security adviser John Bolton to stop the publication of his upcoming book on his White House tenure, arguing in a lawsuit that Bolton had breached a contract and was risking the exposure of classified information.
The suit, filed in Washington, DC, federal court, alleges that Bolton's 500-plus page manuscript was "rife with classified information," and prosecutors say that Bolton backed out of an ongoing White House vetting process for the book that he'd been obligated to do as a result of agreements he'd signed.
"(Bolton) struck a bargain with the United States as a condition of his employment in one of the most sensitive and important national security positions in the United States Government and now wants to renege on that bargain by unilaterally deciding that the prepublication review process is complete and deciding for himself whether classified information should be made public," prosecutors write.
Count One: Breach of Contract and Fiduciary Duty; Violation of Prepublication Review Requirement
Count Two: Breach of Contract and Fiduciary Duty; Violation of Duty Not to Disseminate Classified Information
Count Three: Breach of Contract and Fiduciary Duty; Unjust Enrichment; Constructive Trust
[Declare defendant to be in breach of fiduciary obligations] A. Declare that Defendant has breached his legal obligations, embodied in his, as well as his fiduciary obligations, by submitting for publication and otherwise disclosing information in The Room Where it Happened without completing prepublication review;
[Declare defendant to be in breach of contract] B. Declare that Defendant has breached his contractual obligations, embodied in his NDAs, as well as his fiduciary obligations, by submitting for publication and otherwise disclosing information in The Room Where it Happened that contains classified information;
[Direct defendant to delay release and retrieve and dispose of any existing copies of the book] C. Enter an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened because he has not completed prepublication review and because it contains classified information; to instruct or request his publisher, insofar as he has the authority to do so, to further delay the release date of The Room Where it Happened until completion of the prepublication review process; and to instruct or request his publisher, insofar as he has the authority to do so, to take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that maybe in the possession of any third party in a manner acceptable to the United States;
[Enjoin defendant's release of information in any form or media] D. Enjoin Defendant from any further violations of the terms and conditions of the NDAs and his contractual obligations and fiduciary duties to the United States by taking any steps towards publicly disclosing the information in The Room Where it Happened without first obtaining written permission from the United States through the prepublication review process; by releasing The Room Where it Happened in any form or media; by otherwise exercising any and all rights in and to The Room Where it Happened; or by otherwise breaching his NDAs and contractual and fiduciary duties;
[Imposition of constructive trust] E. In light of the steps already taken by Defendant to disclose or publish The Room Where it Happened, and especially in the event that Defendant does not complete the prepublication review process by obtaining prior written authorization as required by the contract, impose a constructive trust for the benefit of the United States over, and require an accounting of, all monies, gains, profits, royalties, and other advantages that Defendant and his agents, assignees, or others acting on his behalf have derived, or will derive, from the publication sale, serialization, or republication in any form , including any movie rights or other reproduction rights, of The Room Where it Happened;
[Other parties including the publisher] F. Declare that, pursuant to Fed. R.Civ. P.65(d)(2), this order binds Defendant's agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant's book;
[Attorneys' fees & costs] G. Grant to the United States such other relief as the Court may deem just and proper, including, but not limited to, the Government's attorneys' fees and costs herein.
- Tom Hamburger & Josh Dawsey, "Justice Department asks court to order Bolton to stop the release of his book," The Washington Post (June 17)
Charles Cooper, Bolton’s attorney, said, “We are reviewing the government complaint and will respond in due course.” . . .
“The U.S. has no chance of an injunction against the publisher, which did not sign the NDA,” [Stephen] Gillers said. “It wants the publisher to get the court-ordered notice so that, if it publishes anyway, the U.S. will have some basis then to seek civil or criminal sanctions against it.”
- Colin Kalmbacher, "Legal Experts Break Down the First Amendment Implications of Trump’s ‘Criminal Problems’ Threat Over John Bolton’s Book," Law&Crime (June 16)
“I will consider every conversation with me as president highly classified,” Trump told reporters on Monday–predicting that Bolton was likely to face “criminal problems” should the publication of the book proceed as scheduled and as currently written.
Attorney General Bill Barr also waded into the controversy–suggesting that he, too, disapproved of Bolton’s long-delayed tell-all. “This is unprecedented, really,” Barr said at the White House roundtable discussion. “I don’t know of any book that’s been published so quickly while, you know, the officeholders are still in government and it’s about very current events and current leaders and current discussions and current policy issues, which–many of which are inherently classified.”
According to Trump and Barr, the specific point of contention is that Bolton failed to complete a pre-publication review intended to remove any potentially classified material from a manuscript prior to publication. Bolton’s attorney Chuck Cooper has cried foul, however, insisting that his client has been working for months with National Security Council classification specialists toward exactly that end. . . .
“There’s no difference between the First Amendment rights of an individual journalist or the author of a book,” Floyd Abrams told Law&Crime. “Nor does a book publisher receive less protection than a newspaper publisher. What the Pentagon Papers Case did not and could not decide is just how grave a threat to national security is required before a prior restraint can be issued. What it did make clear is that while there is no flat First Amendment ban against all prior restraints there is an extremely high barrier against it.”
Tulane Law Professor Ross Garber offered some insight into how those legal precedents and theories might shake out in reality.
“President Trump’s legal team is surely aware how incredibly unlikely it is that a court would order a prior restraint on publication,” he told Law&Crime. “An injunction action may, however, be a tactic to warn Bolton and his publisher of other, potentially more viable, legal action should they proceed with publication.”
- "Government Secrecy vs. Freedom of the Press" (First Amendment Center, 2006) (Geoffrey Stone with comments by Stephen Vladeck, and intro by Ronald Collins)
28 scholars and Floyd Abrams weigh in on Oberlin defamation case
“The tort law in play here means the plaintiff has to prove the school was going beyond just overseeing a student protest, but actively participating with a motive to defame the business. That’s not easy to prove." — Eugene Volokh
"If you're acting as agents by passing out false information, then you have to answer for that. But it's hard to see how that merits $11 million dollars in [compensatory] damages." — Eugene Volokh
The case is Gibson Brothers Inc. v. Oberlin College, which is currently before the Ohio Court of Appeals for the Ninth Appellate District.
The allegations are serious, the issues complex, the damages substantial, and the number of lawyers and scholars involved are dizzying — and all of this before a five-member intermediate state appellate court. This is a case to watch, one that is unlikely to end anytime soon or with the court that will soon hear oral arguments in the matter.
The Gibson Brothers case involves allegations of libel, tortious interference, and intentional infliction of emotional distress, which arose out of a 2016 incident involving a well-known bakery located near the college. Believing that an African American student had stolen two bottles of wine, a store clerk chased the student and tackled him outside of his store. Matters then escalated into a fight when two of the student's friends attacked the employee. According to a Rolling Stone story, hundreds of students thereafter:
showed up to protest outside of Gibson’s, distributing flyers alleging that Gibson’s was a 'RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.' A number of Oberlin staff and professors were also present, including Dean of Students Meredith Raimondo, who, according to court documents, addressed the crowd on a bullhorn and handed one of the students’ flyers to a reporter. . . .
In November 2017, almost a year after the initial incident, Gibson’s filed a civil suit against Oberlin College, alleging that the institution had directly participated in the defamation of Gibson’s by, among other things, purchasing refreshments and pizza for the protesters, and providing facilities for the students to print the flyers accusing Gibson’s of racial discrimination. It also alleged that the college essentially attempted to strong-arm the bakery into dropping charges against the students as a “quid pro quo for resuming business with Gibson’s,” and that although Gibson’s had requested an apology from the college, Oberlin refused.
In their brief on appeal, the defendants argued that "[a]s far back as 1990, there were reports of protests of Gibson’s Bakery because of perceived racial bias." The Plaintiffs, however, offered testimony to the contrary during the trial.
→ See also "Krislov, Raimondo Respond to Student Senate Resolution," The Oberlin Review (Nov. 11, 2016).
Trial court resolution
When the matter went to trial, a jury awarded $33 million in punitive damages plus $11 million in compensatory damages. The trial judge, however, reduced the total award to $25 million. Judge John Miraldi ruled that "David Gibson should receive $14 million in compensatory and punitive damages, his father and family patriarch Allyn Gibson $6.5 million, and their Oberlin business, Gibson’s Bakery, $4.5 million." The judge also awarded enhanced attorney fees of $6,271,395 and litigation expenses totaling $294,136.79. The defendants, Oberlin College and Dean of Students Meredith Raimondo, appealed.
The brief of the defendants/appellants
10 lawyers from four law firms are representing the defendants/appellants (Benjamin C. Sassé, lead counsel) before the Ohio Court of Appeals. They offer the following main arguments:
- On the standard of review: "Unlike most civil appeals, cases involving speech on matters of public concern require this Court to conduct an independent appellate review of the whole record to make sure the jury’s verdict does not infringe on constitutionally protected speech."
- "Plaintiffs cannot establish a libel claim as a matter of law."
- "Plaintiffs cannot 'back door' an IIED claim to circumvent the constitutional protections that bar a libel claim."
- "Raimondo cannot be liable for tortious interference."
- "At a minimum, the punitive damages awards must be vacated."
- "In the alternative, errors and irregularities at trial made Plaintiffs’ verdict virtually inevitable and entitle Defendants to a new trial."
- "At the very least, the judgment should be reduced."
In their cross-appeal, the plaintiffs are represented by eight lawyers from three law firms. They urge the court to reinstate the $33 million in punitive damages award.
In their brief (Lee E. Plakas, lead counsel) the plaintiffs/cross-appellants maintain that state cap on such awards is inapplicable where, as they further allege, the college acted maliciously and that a reduction in awards would not adequately punish the college or deter any such future cross-appeal asking the court to restore the original $33 million punitive judgment. They argue that the state cap should not be applied in this case and maintain that the punitive damages were warranted given the college’s reckless conduct and the size of its financial assets. This reduction, they argue, does not adequately punish the college or sufficiently to deter future wrongdoing. They also claim that the reduction of punitive damages:
- violates the due course of law/due process clause of the Ohio and United States Constitutions,
- infringes on the constitutional right to a trial by jury, and that
- the $33,223,500 is within a constitutionally acceptable range and is not excessive.
The scholars' amicus brief
Now enter Floyd Abrams and 28 First Amendment scholars who have filed an amicus brief in support of the defendants/appellants (brief here) (Mary Alexander Hyde & Leonard Niehoff counsel). The scholars listed on this brief are:
- David Ardia
- Vincent Blasi
- Clay Calvert
- Erwin Chemerinsky
- Dale Cohen
- Lucy Dalglish
- Eric M. Freedman
- Susan Gilles
- David A. Goldberger
- Gautam Hans
- RonNell Andersen Jones
- Jane Kirtley
- Daniel T. Kobil
- Ronald J. Krotoszynski, Jr.
- Gregg P. Leslie
- Linda Lidsky
- Brian Murchison
- Leonard M. Niehoff
- Mary-Rose Papandrea
- Jonathan Peters
- Steven H. Shiffrin
- Paul M. Smith
- Geoffrey Stone
- Nadine Strossen
- E. Thomas Sullivan
- Stephen Wermiel
- Sonja West
- Kyu Ho Youm
Other amicus briefs in support of defendants/appellants
- National Coalition Against Censorship et al. (Bruce E.H. Johnson, lead counsel)
- National Association for the Advancement of Colored People (Ishan K. Bhabha, lead counsel)
- Reporters Committee for Freedom of the Press, the Freedom to Read Foundation, the American Booksellers Association, and 19 additional media organizations (Melissa D. Bertke, lead counsel)
→ In the interest of full disclosure: One of the lawyers for the defendants/appellants, Seth Berlin, serves with me as a co-director of the First Amendment Salons.
Op-ed by plaintiff
- David Gibson, "Oberlin bakery owner: Gibson's Bakery paid a high cost for an unfairly damaged reputation," USA Today (June 21, 2019)
YouTube statement by plaintiff
- "David Gibson of Gibson's Bakery Reacts to Oberlin College Verdict," YouTube (June 13, 2019)
Jonathan Turley on 'informed commentary' criticizing Black Lives Matter protests
This from Professor Jonathan Turley on his blog:
Yesterday, we discussed the effort to remove one of the country’s most distinguished economists from his position because Harald Uhlig, the senior editor of the Journal of Political Economy, criticized Black Lives Matter and the Defund The Police movement. Now, Cornell Law School professor William A. Jacobson is reportedly facing demands that he be fired because he wrote a blog about the Black Lives Matter movement. Jacobson is the founder of the conservative website Legal Insurrection. My concerns were magnified by a letter from his colleagues that would label virtually any criticism of BLM or the protests as presumptively racist. The letter is a chilling reminder of the rapid loss of free speech values on campuses around the United States.
Twenty-one colleagues at Cornell signed a June 9, a letter denouncing unnamed “commentators… attached to Ivy League Institutions” as calls were made to the Dean to have Jacobson fired. The professors lashed out against academic commentators who criticize the looting as effectively racists . . . .
Not a word about academic freedom or free of speech; not a suggestion that critics of these protests could have anything other than racist motivations. It is the antipathy of the intellectual foundations for higher education. Rather than address the merits of arguments, you attack those with opposing views personally and viciously. That has become a standard approach to critics on our campuses. Unless you agree with the actions of the movement, you are per se racist. It is a mantra that is all too familiar historically: if you are not part of the resistance, you are reactionary . . . or, in this period, racist. . . .
What is most striking for me is the inclusion of Professors Mark H. Jackson and Cortelyou Kenney, who teach in the Cornell First Amendment Clinic. They are in fact the Director and Associate Director of the First Amendment Clinic, which is presumably committed to the value of free speech even at private institutions. So these professors teach free speech and just signed a letter that people who question the BLM movement or denounce the looting are per se or at least presumptive racists. It is reflection of how free speech is being redefined to exclude protections with those who hold opposing views.
Black Lives Matter street mural challenged in court
- Alex Swoyer, "D.C. mayor sued over 'Black Lives Matter' on street to White House," Washington Times (June 11)
First Amendment Watch releases a citizen’s guide to recording police
This from the folks over at First Amendment Watch:
In response to the nationwide demonstrations against police brutality, NYU’s First Amendment Watch is publishing a guide informing citizens of their right to record the police in public places.
Many millions of people now have the capability to document news in a way that only journalists and film crews could do in the past, and the videos they capture have played an important role in shedding light on police misconduct.
The video of George Floyd’s brutal death at the hands of the Minneapolis police, as well as the hundreds of videos taken by bystanders documenting use of force by law enforcement against peaceful protestors, underscores the role that journalists and the public play in illuminating misconduct.
The First Amendment right to record public officials such as the police performing their official duties in public is central to our democracy. Without the ability to document and disseminate such information, citizens would lack an indispensable tool for keeping the public informed, and for holding their leaders accountable.
Naomi Wolf to return with 'newly updated' book on sex & censorship
Last spring Naomi Wolf, a best-selling author, did an interview with BBC's Matthew Sweet on her then-new book "Outrages: Sex, Censorship and the Criminalization of Love." In the course of that awkward interview, Sweet pointed out a historical error of a note Ms. Wolf had made. After a pause, she replied, “Well, that’s a really important thing to investigate.”
At first, her publisher, Houghton Mifflin Harcourt, postponed the U.S. release of her book but then canceled its release. At the time a spokesperson for the publisher said that Ms. Wolf and the publisher parted ways. According to The New York Times, "Ms. Wolf confirmed the parting but said in an email that 'Outrages' would come out in the United States 'in due course.'"
Well, "due course" will be upon us come this October 9 when Chelsea Green Publishing will release the book in paperback, replete with a handsome and improved cover. The book's description:
From New York Times bestselling author Naomi Wolf, a long overdue literary biography of a trailblazer for the modern gay rights movement, and a passionate defense of freedom from censorship
Newly updated, first North American edition—a paperback original[.]
In 1857, Britain codified a new civil divorce law and passed a severe new obscenity law. An 1861 Act of Parliament streamlined the harsh criminalization of sodomy. These and other laws enshrined modern notions of state censorship and validated state intrusion into people’s private lives.
In 1861, John Addington Symonds, a twenty-one-year-old student at Oxford who already knew he loved and was attracted to men, hastily wrote out a seeming renunciation of the long love poem he’d written to another young man.
Outrages chronicles the struggle and eventual triumph of Symonds―who would became a poet, biographer, and critic―at a time in British history when even private letters that could be interpreted as homoerotic could be used as evidence in trials leading to harsh sentences under British law.
Drawing on the work of a range of scholars of censorship and of LGBTQ+ legal history, Wolf depicts how state censorship, and state prosecution of same-sex sexuality, played out―decades before the infamous trial of Oscar Wilde―shadowing the lives of people who risked in new ways scrutiny by the criminal justice system. She shows how legal persecutions of writers, and of men who loved men affected Symonds and his contemporaries, including Christina and Dante Gabriel Rossetti, Algernon Charles Swinburne, Walter Pater, and the painter Simeon Solomon. All the while, Walt Whitman’s Leaves of Grass was illicitly crossing the Atlantic and finding its way into the hands of readers who reveled in the American poet’s celebration of freedom, democracy, and unfettered love.
Inspired by Whitman, and despite terrible dangers he faced in doing so, Symonds kept trying, stubbornly, to find a way to express his message―that love and sex between men were not “morbid” and deviant, but natural and even ennobling.
He persisted in various genres his entire life. He wrote a strikingly honest secret memoir―which he embargoed for a generation after his death―enclosing keys to a code that the author had used to embed hidden messages in his published work. He wrote the essay A Problem in Modern Ethics that was secretly shared in his lifetime and would become foundational to our modern understanding of human sexual orientation and of LGBTQ+ legal rights. This essay is now rightfully understood as one of the first gay rights manifestos in the English language.
Naomi Wolf’s Outrages is a critically important book, not just for its role in helping to bring to new audiences the story of an oft-forgotten pioneer of LGBTQ+ rights who could not legally fully tell his own story in his lifetime. It is also critically important for what the book has to say about the vital and often courageous roles of publishers, booksellers, and freedom of speech in an era of growing calls for censorship and ever-escalating state violations of privacy. With Outrages, Wolf brings us the inspiring story of one man’s refusal to be silenced, and his belief in a future in which everyone would have the freedom to love and to speak without fear.
- Sarah McLaughlin, "Free speech coalition warns Zoom: China’s censorship requests could impact online teaching," FIRE (June 15)
- "Nicholls State University president has no idea how the First Amendment works," FIRE (June 15)
- "Governor Cuomo Signs Legislation Affirming Right to Record Police," First Amendment Watch (June 15)
- Eugene Volokh, "Art History Professor Condemned by Stanford Undergraduate Senate," The Volokh Conspiracy (June 15)
- "Lawmakers Call for the Drug Enforcement Administration to End Its Surveillance of Protesters," First Amendment Watch (June 9)
- Greg Lukianoff, "FIRE president responds to ACLU lawsuit against Title IX reforms," FIRE (June 9)
2019–2020 SCOTUS term: free expression & related cases
Opinions or judgments handed down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc.(May 5) [federal funding/compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Hunt v. Board of Regents of the University of New Mexico
- Bright v. Thomas
- Kansas v. Boettger
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Jarchow v. State Bar of Wisconsin
- National Association for Gun Rights, Inc. v. Mangan
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
- National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
- Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
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