Kazakhstan's Book Ban And The Issue Of 'Prior Restraint'

"Godfather-In-Law," a book about Kazakh President Nursultan Nazarbaev, has struck a raw nerve with authorities in that country.

Written by Nazarbaev's exiled former son-in-law, Rakhat Aliev, the book is full of insider stories, allegations, and documentation about the man who has been Kazakhstan's president since independence from the Soviet Union in 1991. Kazakh authorities are now attempting to stop everyone in the country from reading or even discussing the book.

Saparbek Nurpeisov, a spokesman for the Kazakh Prosecutor-General's Office in Kazakhstan, says criminal proceedings will be launched against anyone who "touches" the book.

"If you touch the book, you will be called to account. There are state secrets and false documents in the book," Nurpeisov said. "At the moment analysis is going on regarding this book. We warn Kazakhstan's citizens so that they will avoid illegal access to state secrets and criminal prosecution. In addition to this, if they obtain the book -- which means that they will eventually distribute it -- then we will consider those people as supporting a criminal."

The basis for the ban is a law adopted in July 2000 called "Immunity of the First President of the Republic of Kazakhstan."

That law says that with the exception of the crime of state treason, Nazarbaev is not legally responsible for any activities connected to the implementation of his duties as president. It also says that nobody can seize Nazarbaev's real estate holdings, his offices, luggage, his official and personal vehicles, his correspondence, or his communication devices.

But the way the law is now being enforced is preventing any citizen from merely quoting or discussing correspondence and other information contained in the book.

'This Is Your Own Right'

Otegen Ikhsanov, the former chairman of Kazakhstan's Supreme Court committee, tells RFE/RL that Aliev may have violated Kazakh law by disclosing state secrets. But he says the government is going too far by threatening to punish people for reading or talking about the book.

"If you disclose state secrets, of course, you will be guilty," Ikhsanov says. "However, if you just read it, there cannot be any criminal liability. That's because you are merely purchasing the book with your own money. You read it by yourself. You evaluate it to decide whether it is right or wrong. This is your own right. According to the constitution, you have the right to access information."

Aliev, who lives in self-exile in Austria and has been sentenced in absentia to 40 years in prison by a Kazakh court on a number of serious charges, told RFE/RL that he welcomes the notoriety the ban has given his book. But he says the government is violating the constitutional rights of its citizens by trying to stifle public debate.

"When the prosecutor's office launches a criminal case against an author and a book, it has only [one] purpose," Aliev says. "They do not want to allow citizens of the country to exercise their rights, which are written in the Kazakh Constitution, regarding freedom of speech."

Indeed, against the standards of common law countries like the United Kingdom and the United States, a ban on reading or "even touching" a book would not stand up in court on appeal.

The More Serious Evil

In the United States, the Supreme Court held in a 1931 case called "Near vs. Minnesota" that except in rare cases, it is unconstitutional for the government to engage in "prior restraint" -- that is, to stop the publication of an idea before it is printed.

That Supreme Court ruling says it is a more serious evil for government officials to be able to determine which stories can be published by the press or book publishers than the possibility that freedom of press might be abused by the printing inaccurate or libelous material.

The Near vs. Minnesota ruling says that in regard to prior restraint, it does not matter whether an article or book is true. And it does not matter if an untrue allegation is made against a public official who is deemed to be impeccable.

In such cases, a writer or publisher still can be held responsible for their words after they are published. But stated simply, U.S. government officials cannot prevent an idea from being published in the first place unless the case meets specific circumstances.

One such circumstance is when the country is at war and the courts are convinced that publication of information would cause immediate and irreparable damage to the security of the country, its people, or its troops in the battlefield.

Prior restraint also is allowed in the United States against those who would call for acts of violence and the overthrow by force of orderly government -- particularly if it can be shown there is a clear and present danger someone will heed the call.

U.S. authorities also can block the release of obscene publications in order to enforce requirements of public decency. But to obtain an injunction, they have to show that the publication would be obscene according to community standards.

The Case Of The Pentagon Papers

In 1971, U.S. President Richard Nixon's administration tried to block publication of the so-called Pentagon Papers -- a top-secret study by the U.S. Department of Defense on the history of U.S. military and political involvement in Vietnam from 1945 to 1967.

In fact, the Nixon administration obtained a federal court injunction forcing "The New York Times" to cease publication of the top-secret documents after they had been leaked.

But "The New York Times" challenged that injunction -- arguing that the Pentagon Papers were already a part of history that should have been made available to the public and that there was no breach of national security insofar as giving away secrets to the enemy during a time of war.

Ultimately, the Supreme Court ruled that the injunctions were an unconstitutional prior restraint. It said the Nixon administration had failed to meet the heavy burden of proof required for a prior-restraint injunction.

Another relevant case of comparison came in 1979 when the U.S. government successfully obtained a preliminary injunction against "The Progressive," a Wisconsin-based journal that was preparing to release an article titled "The H-Bomb Secret and Why We Are Telling It."

The injunction remained in effect for six months, with the government arguing that the article would reveal secrets about how to build a nuclear weapon -- secrets that had never been published before.

But the article had pieced together how to build a hydrogen bomb from information that was readily available in a small-town public library, a textbook for 12-year-old physics students, encyclopedia articles, unclassified government documents, and interviews with experts.

Erwin Knoll, editor of "The Progressive," said the real point of the article was to show that the U.S. government was fooling the public by pretending that it was keeping the key to nuclear weapons a secret. In fact, Knoll said, the government was hiding behind secrecy and security arguments to stifle public debate about nuclear proliferation.

The government ultimately backed down when the article started appearing in other publications and it could no longer argue the information was secret.

Gag Orders Over 'Spycatcher'

Another relevant case of comparison comes from the United Kingdom, where parliament has passed a series of laws known collectively as the Official Secrets Act.

The case began in 1985 when former MI5 secret service officer Peter Wright first published his autobiography, "Spycatcher," in Australia. The British government ultimately ensured the book's international notoriety by banning it in England.

English newspapers that tried to report on the allegations in "Spycatcher" also were served gag orders from the courts. But several English newspapers continued to report on the issues. Although they were tried for contempt of court, the charges were eventually dropped.

Meanwhile, "Spycatcher" continued to be legally sold in Scotland and overseas. Scottish newspapers were not subject to the English court gag orders and continued to report on the story. An attempt by the British government to ban publication in Australia also was refused by courts there in 1987.

Eventually, in 1988, "Spycatcher" was cleared for legitimate sale in England when judges acknowledged that overseas publication of the book meant it contained no secrets.