ACLU and Knight Institute Challenge Constitutionality of Far-Reaching Government Censorship System

GREENBELT — The American Civil Liberties Union and Knight First Amendment Institute at Columbia University today filed a lawsuit on behalf of five former public servants challenging the government’s “prepublication review” system, which 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. The plaintiffs argue the system violates the First and Fifth Amendments, and they call on the courts to block the government from enforcing it in its current form.

“The prepublication process in its current form is broken and unconstitutional, and it needs to go,” said Brett Max Kaufman, staff attorney with the ACLU’s Center for Democracy. “It’s one thing to censor the nuclear codes, but it’s another to censor the same information high schoolers are pulling from Wikipedia. Prepublication review gives the government far too much power to suppress speech that the public has a right to hear.”

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. The complaint filed today describes a broken system. 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.

“This far-reaching censorship system simply can’t be squared with the Constitution,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute. “The government has a legitimate interest in protecting bona fide national-security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors, and suppresses political speech that is vital to informing public debate.”

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 argue that the prepublication review regimes they are challenging 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 claim 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.

The complaint can be found here: https://www.aclu.org/legal-document/aclu-and-knight-institute-challenge-constitutionality-far-reaching-government.

A blog post on today’s lawsuit can be found here: https://www.aclu.org/blog/free-speech/employee-speech-and-whistleblowers/governments-system-censoring-its-former