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 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
