GREENBELT—The Knight First Amendment Institute at Columbia University and the American Civil Liberties Union today announced that they will appeal a decision by the United States District Court of Maryland to dismiss a lawsuit on behalf of five former public servants challenging the constitutionality of the government’s system of “prepublication review.” The system prohibits millions of former intelligence-agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval.

“This is a disappointing decision,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute. “The court has approved sweeping restrictions on the speech of former civil servants whose insights into the work of government are needed more than ever. These restrictions silence voices that the public needs to hear, and they are inconsistent with the First Amendment.”

The lawsuit was filed on behalf of Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former employee of the CIA; Anuradha Bhagwati, a former United States Marine; and Mark Fallon, a former employee of the Naval Criminal Investigative Service. Between them, they served in the intelligence community and the military in a diversity of roles for almost a century. The plaintiffs have submitted written works for prepublication review in the past and intend to continue writing works subject to review in the future.

Prepublication review is not governed by a single executive-branch-wide policy. Rather, agencies impose lifetime prepublication review obligations through a complex tangle of regulations, policies, and non-disclosure agreements. Submission requirements and review standards are vague, confusing, and overbroad. Manuscript review frequently takes weeks or even months. Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’ viewpoints. Favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.

“The fight to defend the First Amendment continues,” said Brett Max Kaufman, Staff Attorney with the ACLU’s Center for Democracy. “The prepublication process in its current form is broken and unconstitutional, and it needs to go. Prepublication review gives the government far too much power to suppress speech that the public has a right to hear. One need look no further than the current administration's wielding of this censorship power to see how easily it can be abused and how dangerous it is to our democracy."

Four of the five plaintiffs joining the lawsuit had work subjected to long publication delays and haphazard redactions. For instance, it took nearly eight months, a letter to six senators, over a dozen requests for updates, media attention, and the ACLU and the Knight Institute’s involvement for the government to complete its review of a manuscript of Fallon’s book about the George W. Bush administration’s interrogation and torture policies. Immerman’s manuscript, which did not refer to any classified information he obtained in the course of his employment with the ODNI or State Department, took six months for review and was returned with extensive redactions. Some redactions related to information that had been published previously by government agencies, and many of them related to events that had taken place, or issues that had arisen, after Immerman had left government. In some instances, the government redacted citations to newspaper articles.

The plaintiffs argued that the prepublication review regimes violate the First Amendment because they impose sweeping, indefinite prior restraints that suppress or deter core political speech, including speech that is unclassified or already in the public record. They also claimed that the system violates the Fifth Amendment because it fails to give them fair notice of what they have to submit and of what they can and cannot say, and because it invites arbitrary and discriminatory enforcement.

The lawsuit was filed in the District of Maryland and against the CIA, NSA, Office of the Director of National Intelligence, and Department of Defense. Between 2016 and 2018, the groups filed four Freedom of Information Act requests seeking documents on prepublication review processes and practices. The documents reveal that the system has grown increasingly far-reaching and burdensome in recent years.

Read today’s decision here. 

Lawyers on the case include, in addition to Jaffer and Kaufman, Alex Abdo and Ramya Krishnan of the Knight Institute; Vera Eidelman of the ACLU; and David Rocah of the ACLU of Maryland.

For more information, contact Lorraine Kenny, [email protected].