How the Trump Administration could threaten book publishers
Many of us were astounded to see Trump’s FCC chairman Brendan Carr threaten the broadcaster ABC over comments by late-night host Jimmy Kimmel. As I explained Friday, The FCC charter explicitly prohibits enforcement actions based on the political content of broadcasts. The First Amendment to the U.S. Constitution was crafted specifically to prevent the government from taking action against its critics:
Congress shall make no law . . . abridging the freedom of speech, or of the press . . .
This may be the reason that Kimmel is back on the air: Disney and ABC assessed their legal position and realized that the FCC would lose a lawsuit brought by Disney to defend its broadcast licenses from this sort of partisan interference.
But in the wake of the Jimmy Kimmel showdown, media observer Steve Rosenbaum wondered on Facebook if books were next.
So I asked myself: if Trump instructed his officials to stop publishers from publishing books he didn’t like, how would he go about doing that?
I’m not talking about libel. Any private citizen can file a libel lawsuit to attempt block publication of books that contain malicious lies about them, or collect damages. But libel suits aren’t effective for broadly scaring the crap out of publishers. First, they’re not filed by the government, they’re filed by private citizens. Second, they have to be filed one book at a time, which is inefficient for blocking speech. And third, the truth is an ironclad defense — you can’t win a libel suit against an author whose book contains nothing but opinions and true facts.
The question is: How could the government attempt to wholesale block publication of books criticizing the administration or the president?
Regrettably, I think the publishing industry isn’t as safe from censorship as publishers may think.
Could Trump block copyrights?
There is no licensing body for book publishers equivalent to the FCC for broadcasters. Broadcasters use the public airwaves, while book publishers distribute through private channels like bookstores that require no license from the government. (It’s worth mentioning here that in China, every publisher must have a government license, which is why there are no books published in China critical of the government.)
But the government does certify books for copyright. In the absence of copyright, a publisher or author cannot defend books from unauthorized copies. As I explained yesterday, while you need take no government action to copyright your book, you must register your copyright before you can take legal action against somebody who pirates it.
Could the copyright office refuse copyright protection for books critical of the president or the government?
Simply stated, no. Such a requirement would be a clear violation of the First Amendment. And the copyright office does not deny copyright based on value or quality. You can copyright any crappy book you want.
These are the grounds for denying copyright for a book:
- It’s not original. You can’t copyright a copy.
- It’s not created by a human. AI output can’t be copyrighted.
- It’s too short. You can’t copyright a sentence.
- It’s created by the government. No one can copyright the tax code, for example.
- It’s so old that its copyright has expired. (Mickey Mouse comes to mind.)
- It contains classified material.
None of these apply to a book about how Donald Trump is ugly, or corrupt, or uses tariffs in irrational ways, regardless of how much the president would prefer they weren’t published.
Even if Congress were to pass a law creating a rule that works that disparage the government couldn’t be copyrighted, such a law would be clearly unconstitutional as it violates the First Amendment.
Could the Trump administration block publication?
There are very few cases where the courts have allowed the government to block publication of books.
Courts have blocked books that violated obscenity laws, for example.
The government has blocked books on grounds of national security, such as publication of H-bomb plans and a book by a CIA employee that was deemed to violate classified material laws.
In the current legal climate, I think that the Trump Administration could at least attempt to block publication of books critical of the government based on their being a threat to national security. From a historical perspective, this seems absurd; the courts are very reluctant to restrain publication of anything due to the First Amendment. But I would have said the same applied to the FCC, and yet Trump’s FCC chair had no problem with threatening broadcasters — why wouldn’t its lawyers similarly threaten publishers?
Would the current Supreme Court uphold such an action? Given its broad view of presidential powers, I’m not so sure.
Blocking distribution through the postal service
It’s hard to stop things from being published in the U.S. But you can certainly make things difficult for publishers by using laws about mail.
For example, it is illegal to mail material that includes a threat against the president. And it is illegal to mail materials that violate national security. During World War I, the Espionage Act authorized the government to block mailing of treasonous materials.
These rulings have since been narrowed on First Amendment grounds, but again, the nation’s political climate has changed.
I think it’s conceivable that the president could direct the postal service to refuse mailing of books critical of the government on the grounds that they are “treasonous.”
You might ask whether this matters. After all, there are a lot of ways to get books to the public that don’t involve the U.S. Postal Service, including ebooks, audiobooks, FedEx, and UPS.
But the normal operations of publishers use the mail frequently. Amazon and Bookshop.org both frequently use the postal service to mail books.
Coerce Amazon not to carry books critical of the government
Amazon is built on efficiency. It would resist carrying books that couldn’t be mailed through the post office.
Amazon is also the subject of antitrust scrutiny. The government could use this to apply pressure to get Amazon not to carry books critical of the government.
Blocking schools and universities from purchasing books critical of the government
The administration has already put in place rules to punish educational institutions that violate its priorities, by, for example, supporting Diversity, Equity, and Inclusion programs.
It would be pretty easy to expand those restrictions by banning schools and their professors from recommending books critical of the government for classes.
The Index of Prohibited Books
Some historical context: In 1559, the pope issued an index of prohibited books. Because the relatively small number of printers at that time didn’t want to run afoul of the powerful Catholic Church, they would refuse to publish any book on the pope’s list.
Could the Trump administration create its own index of prohibited books?
The efficient way to do this is through the copyright registration process. When you register a copyright, you typically upload the content of your book. It would be pretty easy to create an AI that reviewed that content for material critical of the government and marked the book as one that the government wanted to prohibit.
You can also currently send the book to the copyright office as a physical product, but the copyright office could very easily change that option and require all future registrations to be submitted in electronic form “for efficiency.”
As I previously stated, the copyright office couldn’t stop registration of the copyright, but it would certainly have a record that the book was objectionable.
Here’s the plan to watch out for
Pulling it all together, if the Trump Administration wanted to hurt publishers and authors that published books critical of the government and the president, here’s what it might do:
- Use the copyright office to automatically find and detect such books, and create an index of prohibited books.
- Prohibit mailing of books on the prohibited list with the justification that they violate national security.
- Prohibit colleges and schools from purchasing such books.
- Threaten Amazon with antitrust action if it carried such books.
This would not stop anyone from publishing books critical of the government. But it would significantly dent the market for such books. Major publishers might decide as a matter of policy that publishing such books was not worth the hassle if they were unmailable, had no place in the college market, and couldn’t be carried on Amazon. And self-publishing practically requires Amazon to be successful.
Publishing is more resistant to government coercion than broadcasting. But publisher who self-rightously think they are immune from government pressure are being naive. There is a danger here. I fervently hope it never comes to pass.