Is U.S. Effort To Get Leaked Document “Prior Restraint”?


Federal prosecutors are using a novel approach to force the American Civil Liberties Union to turn over copies of a classified document it received from a source, reports the New York Times. The government is making broad use of a subpoena, seeking “any and all copies” of a document e-mailed to it unsolicited in October, indicating that the U.S. wants to prevent further dissemination of the information in the document. The subject of the grand jury investigation is not known, but the ACLU said that it had been told it was not a target of the investigation.

The subpoena raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication. The ACLU said the document “has nothing to do with national defense.” Law Dean Rodney Smolla of the University of Richmond said that, “To the extent the government wants to prevent the ACLU from disclosing the content of the document by virtue of this subpoena, it is a prior restraint.”


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