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Friday, January 05, 2018

"Fire and Fury" is not The Pentagon Papers

There is a tendency (to which I have been susceptible) to treat Donald Trump's norm-breaking as a constitutional crisis. The latest is the response to the cease-and-desist letter that Trump's  private attorneys sent to the publishers of the forthcoming Fire and Fury: Inside the Trump White House. Ed Kilgore at New York Magazine paints the letter as the next step on the road to book banning and book burning, as reminiscent of the Nixon Administration's actions as to The Pentagon Papers (which are on everyone's mind).

That reaction seems overstated, even allowing that the President is a uniquely powerful figure. A cease-and-desist letter has no legal force; it is an act of bluster, allowing the lawyer to flash his fangs and sound smart.  The show of "force" behind it is not connected to Trump being President or wielding state authority, but to being a wealthy individual who can afford a high-priced blustering private lawyer and who has made a career out of this very tactic. There is no show of government force here. As Mike Dorf points out, the letter does not threaten to seek an injunction to halt publication of the book, so there is no explicit legal risk of prior restraint. It does float the possibility of suit for defamation or other torts.* But that suit could be based on excerpts already published (the demands retraction and apology for what has gotten out). And the letter reserves the right to even if the publisher caves to the threat and halts publication.

[*] Dorf shows the flaw in the threatened claim of tortious interference by inducing Steve Bannon to breaking his non-disclosure agreement.

So comparing this to DOJ obtaining an injunction barring publication, on pain of contempt of court, is way over the top. I do not see the difference between this letter and the letter Trump's lawyers sent during the 2016 campaign threatening to sue The New York Times for its reporting on the sexual-assault allegations against Trump. Both sought to make speech go away by the pressuring the speaker to retract and apologize for what already was out and refrain from publishing anything further, in addition to threatening a suit for damages. And even if the express demand to stop publication of a book constitutes a unique "prior restraint," the doctrinal treatment of prior restraint as categorically worse than post-publication liability has been questioned--the chill on speech and the threat to First Amendment values is no different, although there may be some procedural and proof differences.

In writing about the exchange with The Times during the campaign, I argued that threatening to sue critics in the press was another norm Trump was destroying--public officials do not threaten to sue their critics because it is legally difficult-to-impossible under Sullivan and politically weak. But I do not think it poses a greater First Amendment threat than any other powerful public person threatening to sue his critics.

Posted by Howard Wasserman on January 5, 2018 at 05:00 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

Thanks for that interesting post , you claim that such letter has no legal force , well , the lawyer in charge , is not at all convinced so , here I quote from the letter :

You are now on notice of the foregoing claims and therefore you are now under a legal duty to affirmatively preserve , and not delete , destroy , hid or misplace , all documents ......

And more :

Severe sanctions may be imposed for failure to preserve evidence after being notified of a dispute .

End of quotation :

So , maybe you are right concerning first amendment implications , but , legally , it is definitely putting a person in certain obligations .

Thanks

Posted by: El roam | Jan 5, 2018 7:29:59 PM

No, it’s not. No legal obligations flow from that letter. The publisher could be sanctioned for spoliation without the letter. And the sending of the letter does not mean the publisher could not avoid sanctions for spoliation. At best, it announces legal standards that exists independent and regardless of the letter.

Posted by: Howard Wasserman | Jan 6, 2018 9:02:08 AM

Wasserman , not at all with all due respect , this is regarded as imminent dispute coming to court highly likely . Without it , the publisher or the author of the article or the book , has the right , to do with the documents or material , whatever he likes , without fearing of being sanctioned or implicated . But , knowing that lawsuit is imminent , he needs to keep it , not destroys it , for otherwise , he would obstruct justice , and frustrate the court , in tracking the truth for prevailing correctly the case . So . that letter , constitute the game changer . So , it has legal force , or implications ( not the lawyer , not the letter , but , the legal situation formed , due to it ) .

Thanks

Posted by: El roam | Jan 6, 2018 11:20:14 AM

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