Some of the finest minds on the left are at battle stations over the news that a lawyer for President Trump is trying to halt the publication of Michael Wolff's book Fire and Fury: Inside the Trump White House.
"Now Trump is threatening the publisher of the book, not just Bannon. We have freedom of the press, he can't stop the book just because he doesn't like what it says," was the way the president of the American Federation of Teachers, Randi Weingarten, put it on Twitter.
Two lawyers at Gibson Dunn, Ted Boutrous and Teddy Kidder, took to Politico magazine to claim:
these letters to Bannon, Wolff and Wolff's publisher mark an unprecedented moment in First Amendment history: a sitting president of the United States is threatening to sue for defamation and to seek a prior restraint—an injunction preventing publication—against a book of political reporting simply because he didn't like what was written.
In the New York Times, Michael Grynbaum wrote, "On Thursday, Mr. Trump's lawyers threatened to sue Mr. Wolff's publisher, Henry Holt, if it did not halt the book's release and apologize for its contents — an extraordinary attempt by a sitting president to stifle critical coverage."
Actually, President Trump's two predecessors took a similar position when it came to claiming that the government had power to restrain the publication of political books.
George W. Bush signed into law the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which was passed with the fervent support of the New York Times editorial page and news columns. It was a clear violation of the First Amendment, as the Supreme Court has ruled repeatedly in striking down parts of the law.
In an oral argument in one such Supreme Court case, Citizens United v. the Federal Election Commission, on March 24, 2009, the lawyer representing the Obama administration, deputy solicitor general Malcolm L. Stewart, tried to defend the McCain-Feingold Act's penalty of five years in prison for distributing a 90-minute video critical of Hillary Clinton.
Stewart was pressed by Justice Alito about a point made by Theodore Olson, the lawyer who was representing Citizens United in the case and a giant legal figure in his own right. Asked Alito:
What's your answer to Mr. Olson's point that there isn't any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?...That's pretty incredible. You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?... Well, most publishers are corporations. And a publisher that is a corporation could be prohibited from selling a book....The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?
The other justices, including Roberts and Kennedy and Breyer, got involved in pressing the question against the Justice Department lawyer, Mr. Stewart, who was obviously flailing in the quicksand of an unconstitutional law. And the Democratic senators and Democratic presidential candidates and even President Obama spent the years since the Citizens United decision paying all sorts of lip service to how the Citizens United decision was supposedly a dagger in the heart of campaign finance reform, and how the First Amendment should maybe be amended to make clear that such regulation is possible, and so forth.
But when you come right down to it, the argument that Obama's lawyer was making in favor of a law that George W. Bush signed would have had precisely the effect that people now are claiming is "unprecedented" or "extraordinary" now that Trump is trying it. It would have used government force to prevent the publication of political books.
The fact that people are upset about it in Trump's case but cheered it on in the case of Bush and Obama is a pretty good sign that what they may really be opposed to isn't the book-banning but rather the particular president who in this case is trying it.