Balkin on the Subpoena Power as an End-Run Around the First Amendment
Very good discussion by Jack Balkin of the administration’s dangerous new use of the subpoeana power. In a nutshell, the administration is attempting to use the subpoena power to create a de facto prior restraint on speech by demanding “any and all copies” of a document, thus making it impossible for a speaker ever to disseminate the document. As Balkin explains, this amounts to an attempted end-run around the very strong judicial presumption against prior restraints on speech — a presumption that applies even to classified information dissemination. See, e.g., the Pentagon Papers case.