On Thursday morning, Michael Cohen, the president’s former lawyer and fixer, was returned to prison. Many readers like myself may have passed over the headlines for this particular event thinking it was unsurprising. After all, Cohen’s reimprisonment followed his apparently being caught on camera at a NYC restaurant in violation of conditions of home confinement. Despite initial headlines, however, the news reports explained a very different and more ominous set of facts. As the New York Times’ Maggie Haberman described, “Cohen imprisonment wasn’t related to NY Post photo of him at restaurant. When he went to switch from furlough to home confinement, he had to sign papers saying no media or publishing a book, which he refused to sign.”
Perhaps due to the flurry of news in the past forty-eight hours or perhaps due to the misperception of why Cohen returned to prison, there has been little to no significant analysis of this development (setting aside stray tweets and the like). That’s despite the availability of the peculiar agreement that Cohen was asked to sign committing not to publish a book. How peculiar is the agreement? Very peculiar. As David C. Fathi, director of the ACLU’s National Prison Project told Just Security, “I have never heard of such a spectacularly overbroad restriction on speech as a condition of probation or supervised release.”
I asked some of the country’s leading First Amendment law experts for their views about the agreement Cohen was told to sign. Their comments are published in full below. They are almost uniform in decrying the condition placed on Cohen by the Bureau of Prisons, an agency under William Barr’s Justice Department. I recommend reading their extensive comments in full, but here are some highlights:
A foremost scholar in First Amendment law, former Provost of the University of Chicago and Professor Geoffrey R. Stone calls the government’s action “patently unconstitutional.” Robert Corn-Revere says it is “an obvious violation of his First Amendment rights.” The ACLU’s Vera Eidelman writes that it is “almost certainly unconstitutional.” Laura R. Handman puts the situation in the context of the political nature of Cohen’s speech. She writes that the government’s action is a “profound affront to the First Amendment … all the more so when the content of what he would share would likely be … information that is particularly vital to an informed public as they decide whether the President merits re-election.” Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University, had a similar assessment also noting “this gag order is to suppress speech about the president, which is speech at the core of the First Amendment’s concern.” Professor Jane Kirtley writes, “this is a prior restraint, pure and simple, and not only violates Cohen’s rights, but also the right of the public to learn what he has to say.” Professor Burt Neuborne writes that “a flat ban on a federal prisoner writing a book or article is, in my opinion, indefensible.” The only exception was Professor Roy Gutterman who writes that “the terms for house-arrest or home confinement as an alternative to prison might justify these restrictions” and then he raises some questions.
A few items of background are worth noting. First, it is important to understand that Cohen’s book is widely expected to include numerous and specific allegations unfavorable to the president.
Second, the Trump Organization has reportedly attempted to block the book. They are not alone. When Cohen testified before Congress on Feb. 27, 2019, several Republican lawmakers cast aspersions on his writing a book. Rep. Virginia Ann Foxx’s (R-NC) asked Cohen to “commit, under oath, that you have not and will not pursue a book or movie deal based on your experiences working for the president.” Cohen flatly replied, “No.” On April 30 of this year, Cohen reportedly received a letter from Trump Organization lawyers demanding that he halt writing his “tell-all book” citing a non-disclosure agreement.
Third, Cohen recently flagged that the book is imminent. On July 2, Cohen retweeted news that a New York court held that Mary Trump’s book about President Trump could be released, and Cohen added a comment that his own book was “close to completion.” He also said his book had an anticipated release date of late September, which would be a few weeks before the presidential election. A week later, on Thursday, July 9, Cohen was reportedly presented with the surprise agreement as a condition for his remaining out of prison.
Here is the prompt I sent to each expert whose answers are provided in full below.
In a news report titled, “Michael Cohen Returned to Jail in Dispute Over Trump Book,” the New York Times reported the following:
“Michael D. Cohen, President Trump’s onetime lawyer and fixer, was in good spirits on Thursday when he arrived at a Manhattan federal courthouse, where he expected to complete routine paperwork related to his home confinement amid the coronavirus pandemic.
Mr. Cohen, who was released from prison in May on a medical furlough, was stunned when probation officers asked him to sign a document that would have barred him from speaking to reporters or publishing a book during the rest of his sentence, his legal adviser said.
Mr. Cohen, believing the agreement violated his First Amendment rights, refused to sign it, the adviser, Lanny Davis, said. Less than two hours later, federal marshals stepped out of an elevator with handcuffs and took Mr. Cohen back into custody.”
The text of the agreement contains the following (emphasis added):
“Below is a list of additional guidelines you will be expected to comply with and honor during the entire term of FLM [Federal Location Monitoring]. Any violation of these rules will result in our notification to BOP officials which may result in your immediate termination from the FLM program.
No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you. The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.”
The full text of the agreement is available here.
Here’s what each expert said.
Robert Corn-Revere, Partner, Davis Wright Tremaine LLP:
The release conditions that seek to impose a gag order on Michael Cohen are an obvious violation of his First Amendment rights. There is no conceivable legitimate basis in American law for forcing someone to choose between his freedom and silence.
Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project:
This restriction is almost certainly unconstitutional. Not only would it have prohibited Mr. Cohen from publishing his book, but it would also have stopped him from accessing any social media platform—a restriction that is ripe for challenge in light of Packingham v. North Carolina—and it even sought to limit the speech of his friends and family online.
If this condition were imposed regularly on individuals on probation, it would echo past unconstitutional attempts by the government to silence an entire class of speakers based on their interactions with the criminal system, which the Supreme Court has struck down as content-based and overinclusive in cases like Simon & Schuster v. New York State Crime Victims Board. To the extent that it is an uncommon condition, it is perhaps all the more constitutionally suspect as an attempt to silence a specific speaker with a specific viewpoint.
And, even if this were analyzed under the less speech-protective doctrine that applies to individuals who are currently incarcerated, it would almost certainly fail. Courts have held that, even when individuals are incarcerated, the government’s interest in prison safety and security cannot justify banning them from corresponding with reporters or publishing books. When someone is out on probation, those government interests aren’t even in play, making the condition all the more vulnerable to challenge.
Roy Gutterman, Director, Tully Center for Free Speech, Associate Professor, Newhouse School, Professor of Law, College of Law, Syracuse University:
At first glance, the restrictions on access to media and prohibitions on self-expression through social media under normal circumstances would violate the First Amendment. The same goes for restrictions on book authorship. But the terms for house-arrest or home confinement as an alternative to prison might justify these restrictions.
The Supreme Court has ruled on media access to prisons with a landmark decision in the late 1970s, saying that because of the special conditions in and the purpose of prisons, news media cannot have unfettered access to both the prisons and prisoners. Reasonable restrictions on access to prisons do not violate the First Amendment.
I think some of those restrictions also follow over into house arrest. House arrest often comes with a number of restrictions that ordinary people would find oppressive. But the tradeoff has to be better than time in prison.
As for the restrictions on writing a book, we know New York’s original “Son of Sam” law was held unconstitutional but subsequent revisions also made it easier for victims of crimes to get a piece of the proceeds from books or movies written about past criminal activity, mostly violent crimes. That said, I’m not sure in this case there would be an identifiable victim to seek funds. But it might be within the terms of home confinement to limit access to media and people, including literary agents or editors. The closer question is whether he would be able to do any of this while still confined to the minimum security prison rather than his Park Avenue home confinement?
Laura R. Handman, Partner and Co-chair, Appellate Practice, Davis Wright Tremaine LLP:
To condition Mr. Cohen’s continued home confinement on his willingness to give up his First Amendment right to speak to the press or write a book, and then incarcerate him when he refuses, is a profound affront to the First Amendment. This is all the more so when the content of what he would share would likely be about such potentially newsworthy matters as his work with the President of the United States—information that is particularly vital to an informed public as they decide whether the President merits re-election. The Supreme Court just this week held the President was not immune from inquiries by the Manhattan DA into the President’s financial dealings, exactly the information Mr. Cohen would likely be discussing. The reason offered by the Government–“to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community” — is hardly a compelling law enforcement interest sufficient to override these fundamental First Amendment protections. Indeed, America long ago rejected seditious libel- imprisonment for criticism of the Government- and yet, that is apparently what has happened here.
Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University and Executive Editor at Just Security:
I don’t see how a prior restraint like this can be squared with the First Amendment. Even if the government could justify a narrower gag order to prevent a paroled inmate from “glamorizing … [his] status”—which seems highly doubtful to me—the gag order here is far broader than necessary to serve that purpose. In addition, the effect of this gag order is to suppress speech about the president, which is speech at the core of the First Amendment’s concern.
Jane Kirtley, Silha Professor of Media Ethics and Law at the Hubbard School of Journalism and Mass Communication at the University of Minnesota and Director of the Silha Center for the Study of Media Ethics and Law:
This is obviously a prior restraint. Therefore, it is presumed unconstitutional. The only way this extremely broad prohibition could possibly be justified is by citing a compelling state interest of the highest order. To “avoid glamorizing or bringing publicity to [his] status as a sentenced inmate serving a custodial term in the community” is not a compelling state interest.
The situation might be different if Cohen was restricted while incarcerated, and if the authorities could demonstrate that his media interviews or use of social media were disruptive within the prison or otherwise undermined legitimate penological concerns.
I’ve seen this type of rule imposed on incarcerated inmates because of prison wardens’ distaste for “glamorizing” notorious prisoners (such as Jeffrey Dahmer or Charles Manson), or because of concerns about further “victimizing” an inmate’s victims or their survivors because they would be exposed to the inmate’s speech, or were simply offended by the inmate’s notoriety.
Whether Cohen can profit from his publications (such as a book) is a separate question. New York has a “Son of Sam” law that was revised after the original version was struck down by the US Supreme Court as unconstitutional in 1991. The high court recognized that crime victims had a legitimate interest in being compensated, and the current law requires notification of victims of profits over (I believe) $10,000 so that they can bring a civil suit to recover damages.
But that’s a very different situation than what seems to be the case here. This is a prior restraint, pure and simple, and not only violates Cohen’s rights, but also the right of the public to learn what he has to say.
Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law:
I believe the restriction is unconstitutional. A flat ban on publication by a prisoner is a classic prior restraint. It’s bad enough that John Bolton had to submit his manuscript for review, but the BOP doesn’t even give Cohen that option. Prisoners do not lose all First Amendment rights. While narrowly targeted restrictions protecting fair trial and security may be valid, a flat ban on a federal prisoner writing a book or article is, in my opinion, indefensible. This is just another Trump NDA.
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago, former Dean of the Law School and Provost of the University of Chicago:
Although the Supreme Court has generally permitted prison authorities considerable leeway to regulate incoming mail to prisoners, it has given considerable protection to the right of prisoners to communicate themselves with persons who are not in prison. In 1974, for example, in Procunier v. Martinez, the Court held that the proper test in such circumstances is a form of heightened scrutiny under which the government must demonstrate that the challenged restriction furthers an important or substantial government interest that is unrelated to the suppression of free expression, and that the restriction is no greater than necessary for the protection of that interest. In the Michael Cohen situation, in which Cohen was not even physically in prison, the government’s action is clearly designed to suppress expression the government disapproves of and definitely does not further an important or substantial government interest related to Cohen’s incarceration. It is thus patently unconstitutional.