THREAD: I'm teaching a media law class in the evening, so, ironically, that's why I'm late to the Bolton news. Some context about restrictive prepublication agreements, defense/intel officials, and book publishing ...

The complaint makes a casual reference to injunctive relief, but otherwise it's not an effort to obtain a restraining order and halt publication. It seems, instead, to be chiefly about Bolton's earnings from the book.

Many federal employees throughout the exec branch agree not to disclose classified, and sometimes classifiable, info during and after employment. Those who disclose such info in violation of the agreement may lose clearances, jobs, and/or earnings from the disclosures.

Consider, eg, SCOTUS case in 1980 involving former CIA officer Frank Snepp. He published book critical of US withdrawal from Vietnam w/o submitting the manuscript to CIA, as agreement required. CIA conceded his book contained no classified info but sued for breach of contract.

Ultimately, SCOTUS rejected Snepp’s argument that CIA's prepublication review was unconstitutional prior restraint. Even Snepp’s publication of unclassified info related to intel activities might damage national interests, Court said.

In footnote, Court suggested CIA’s censorial powers did not depend entirely on prepublication agreement: “CIA could have acted to protect substantial gov't interests by imposing reasonable restrictions on employee activity that in other contexts might be protected" by 1st Amend.

To punish Snepp, Court approved of a “constructive trust” on his earnings from the book, as well as earnings on movies and talks resulting from his work as an intel officer in Vietnam. Earnings in the trust reverted to the government.

Since the Snepp case, CIA and other defense/intel agencies have rarely sued former officials for breach of contract. However, it seems the government has won each of the cases brought since Snepp (see, eg, Matt Bissonnette and Valerie Plame).

At the time of the Snepp ruling, only CIA and NSA required prepublication review. In 2020, every US intel/defense agency imposes a prepublication review on at least some former employees. The process varies widely across agencies/departments.

Manuscripts are sometimes reviewed by multiple agencies, each of which has varying standards. Moreover, the amount of material submitted for review has markedly increased since the 1970s, resulting in lengthy delays.

In 2019, a group of former intel officials sued to challenge prepublication review process on First Amendment grounds. Suit asserted that the vague review standards place too much discretionary power in reviewing officials.

In April 2020, the federal trial court granted the government's motion to dismiss, holding that the system of prepublication review is constitutional. The group of former intel officials are planning to appeal.

That's all for now. Just trying to offer some background info and context. It comes, by the way, from the book The Law of Public Communication, of which I'm a coauthor, with William Lee and @MediaLawProf.