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.

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4 Responses

  1. Frank says:

    Hmmm…do they demand summaries as well? abstracts? “derivative works”? Perhaps copyright categories can provide an end-run around the end-run.

  2. Larry Rosenthal says:

    Not really such a good discussion over at Balkinization, it’s more a a knee jerk discussion. The Pentagon Papers case, at most, affords the ACLU a right to disseminate the material, but not a right to retain stolen property. That issue simply was not reached in that case, which considered only whether publication can be enjoined. A post at Balkinization by Marty Lederman relies on Lamont and Mandel to establish a First Amendment right to receive protected material, but again, nothing in those cases hints at a First Amendment right to receive stolen property. Surely if I steal intellectual property, I can be made to give it back despite the First Amendment, why is this case any different. If there is any problem here, it is the use of a grand jury subpoena to obtain all copies of the documents. As the motion to quash argues with considerable force, there is no proper investigative purpose for that portion of the subpoena. But the ACLU’s asserted First Amendment right merely to hold on to property it knows is stolen, and which it appears to be unwilling to publish (presumably fearing criminal liability, which shows that while the New Yort Times had the courage of its convictions, the ACLU does not), is unsupportable.

    Larry Rosenthal,

    Chapman University School of Law

  3. Heidi Kitrosser says:

    Larry: I believe that bloggers and the press are concerned about this case not because of the possibility that the ACLU will have to turn over the original document/s at issue, but precisely for the aspect of the subpoena that you describe as problematic: “the use of a grand jury subpoena to obtain _all copies_ of the documents.” (emphasis added by me) This seems to be an attempt not merely to get back the original, stolen document, but to demand surrender of the information, and thus to negate the possibility that that information ever will be disseminated. In effect, to create a prior restraint against any possible speech stemming from the document.

    As to whether the ACLU forfeits any First Amendment rights if the documents at issue are stolen: It’s true that the case law is unclear to mixed regarding what punishment can be meted out to one who steals even publicly valuable information for public dissemination (as opposed to one who passes on that information but did not steal it). But a couple of points are pretty clear in the case law: (1) Prior restraints against public dissemination are deeply, presumptively disfavored, even where the potentially disseminated information was stolen or otherwise wrongly received and (2) Even those who illegally transmit proprietary information have some First Amendment protection (including against post-dissemination publication, let alone prior restraints) (see, e.g., U.S. v. Morrison – it’s true that the Fourth Circuit upheld the conviction of the government employee who leaked classified information to which he’d had special access, but two of the three judges also made clear that a First Amendment analysis with some bite had to be conducted). I don’t know all of the facts of the ACLU case, but if the ACLU received the information from some other source (which I believe is the case, based on the newspaper articles), then the ACLU is not very differently positioned from the New York Times in the Pentagon Papers case. The NYT knew that the information was classified and was not supposed to be disseminated, but they themselves had not stolen the information. This also was very important to the S.Ct. in protecting the speakers in Bartnicki. It’s true that the ACLU does not appear poised to publish the information, but they eventually could disseminate it, and preventing them from retaining the information in any form – not just in the form of an illegally obtained original document that must itself be returned – has the effect of preventing any future dissemination. And even if the ACLU wrongfully stole the information itself, which does not sound like the allegation being made, they might well retain some First Amendment protection in light of cases like Morrison – again, not to retain the actual document stolen, but to retain the information in copy or some other form.

  4. Larry Rosenthal says:

    Where’s the prior restraint? No one is stopping the ACLU from publishing the document — it can do so even today if it wishes to. The ACLU makes no representation that it intends to disseminate the document. The government is simply trying to retrieve its property, not enjoin publication. If this were stolen intellectual property, would you call a court order directing its return to its lawful owner a prior restraint? This may be an improper use of the grand jury, but it is not a prior restraint, just as a replevin action seeking return of stolen property — even a stolen draft of a book otherwise protected by the First Amendment — would not be a prior restraint.