Bye Bye, First Amendment, Hello Prior Restraints

First the Bush Administration tried to use the material witness statute-- designed to keep important witnesses from fleeing-- as a method of preventive detention. Now they are trying to use the grand jury's subpoena power-- used to gather evidence for possible prosecutions-- to get around the First Amendment's prohibition on prior restraints. In effect, the government is trying to do an end run around the famous Pentagon Papers case.

The Justice Department has issued a subpoena for all copies of a memo held by the ACLU. By asking for "any and all" copies, it is trying to prevent the ACLU from publishing or disseminating the information. If the ACLU makes a copy, it is automatically covered by the subpoena.

The judge in the case should quash the subpoena, or at the very least modify it to allow the ACLU to keep copies of the materials requested. If the government's purpose is genuinely investigative, it cannot object to the ACLU retaining copies. But if its purpose is not investigative, but an attempt to suppress speech, it may not abuse the subpoena power for this purpose.

The government is free to try asking a court for an injunction against the ACLU which would be a prior restraint against publication. The reason the government does not dare try that is the Pentagon Papers Case. And if it wants to prosecute the ACLU for publishing the piece under the Espionage Act, it can also try. But if the ACLU obtained the material legally (which appears to be the case, because the document appeared in an unsolicited e-mail), the government should also not be able to succeed, because of the First Amendment protects the publication of truthful materials obtained legally except in the most extreme circumstances, which are not present in this case.

Instead, the government is being sneaky. It is trying to use the subpoena power as a tool of censorship. Note that the subpoena can be issued on the government's own motion, placing the burden on the affected party to convince a judge to quash it. And the affected party may not ignore the subpoena without facing possible sanctions by a judge. This is the very essence of a prior restraint.

If the judge allows this misuse of the government's subpoena power, then the Pentagon Papers case will be irrelevant, because the government could simply have issued a subpoena to Daniel Ellsberg, the New York Times and the Washington Post.

Repeatedly we've been assured that the government will never again engage in the sort of civil liberties abuses it once engaged in. But it is not true. When the government is run by people who don't really respect civil liberties, they will always find new ways to fight old battles, and ever more creative ways to undermine people's liberties. This case is a sobering example of an Administration that seeks to twist the law to punish and censor its critics-- an Administration that, when it comes to civil liberties, is simply out of control.