The U.S. government’s prepublication review regime is a far-reaching and dysfunctional censorship system that prevents millions of former public servants from publishing or speaking about topics related to their government service. In 2019, the Knight Institute and the ACLU challenged the constitutionality of the regime on behalf of five former government employees, in Edgar v. Haines. A petition seeking review of the case is pending before the Supreme Court. I spoke with Institute Staff Attorney Ramya Krishnan about the lawsuit, about the footnote in the decades-old Supreme Court case that helped set the broken system in motion, and about how the system should be repaired.
What are the problems with the prepublication review system, and why does it matter so much?
The prepublication review system is a massive system of prior restraint. It exposes millions of former public servants and military personnel to possible sanction if they write or speak about the government without first seeking government approval.
The problems with this system are legion. To start with, there’s no executive branch–wide policy, meaning that each agency has its own. Agency regimes comprise a thicket of regulations, policies, and contracts that are difficult to navigate and understand. Agencies impose prepublication review obligations even on former employees who never had access to sensitive information, or who left government decades ago. The criteria for submission and review are vague and overbroad. The review of manuscripts can take months or even years. And censors’ decisions are often arbitrary. As a result, many would-be authors self-censor—if they speak at all—and the public is denied access to speech that is of immense public interest.
While the government has a legitimate interest in protecting national security, the current system is not moored to that interest. The system suppresses far more speech than is necessary to serve any legitimate government interest.
In 2017, the House and Senate intelligence committees called on the director of national intelligence to reform the system by issuing a policy that would clarify various aspects of the prepublication review process and make it fairer. Five years later, no policy has been released, and it’s not clear that one is coming.
Tell me about Edgar v. Haines, the lawsuit challenging prepublication review and the petition that the Institute and the ACLU filed last November asking the Supreme Court to review the case.
In 2019, the Institute and the ACLU filed a legal challenge in federal court on behalf of five former federal employees who have faced numerous hurdles navigating the broken review process, including having manuscripts held up in long reviews and unnecessarily redacted. Unfortunately, the lawsuit was dismissed by a district court in 2020, and that ruling was affirmed by an appeals court in 2021. Now we’re asking the Supreme Court to review these decisions. We expect the Court to consider our request on May 19, meaning that we may know in the next few weeks whether the Court will take the case.
Let’s talk about Snepp v. United States. What does this decades-old case have to do with prepublication review?
Snepp v. United States is a 1980 decision in which the Supreme Court allowed the CIA to seize the profits earned by a former CIA officer who published a book without first submitting it for review. In the four decades since Snepp, agencies have treated the case as a blank check to expand their prepublication review processes. As a result, the system has grown on every axis.
For example, more agencies impose lifetime prepublication review obligations on employees. When Snepp was decided, only the CIA and National Security Agency imposed prepublication review obligations on former employees. Today, all 18 intelligence agencies impose lifetime obligations on at least some of their employees. And they impose requirements on more categories of people, including employees who never had access to sensitive information. Agency regimes have also become more complex, with regimes implemented through a tangle of contracts, regulations, and policies—a fact that has made it more difficult for former employees to understand, much less meet, their obligations. They also apply to much more material, in part because much more information is classified than before. This, in turn, has led to substantial delays in the review of manuscripts. For example, the CIA now projects that the review of book-length manuscripts will take over a year.
We think Snepp is a weak foundation for the modern system of prepublication review, which is why our petition asks the Court to overrule it.
What’s the argument for asking the Court to overturn Snepp?
As we explain in our petition, Snepp conflicts with established First Amendment doctrine. That was true when the case was decided, and it’s even more true now. The prepublication review system is a classic prior restraint: it prohibits individuals from writing and speaking without first obtaining government approval. The Court has long considered prior restraints dangerous because they restrict speech in advance of any judicial assessment of whether the government is entitled to restrict it. Thus, it has treated them as presumptively invalid and has approved of them only where they include robust substantive and procedural safeguards. Snepp failed to apply these long-accepted principles, instead asking only whether the CIA’s prepublication requirement at the time was a “reasonable means” of protecting national security. The Court’s subsequent employee speech decisions confirm that Snepp’s analysis was wrong. Those decisions make clear that prospective restrictions on the speech of even current employees must satisfy more stringent scrutiny than Snepp applied.
The Court should also revisit Snepp because of the case’s procedural irregularities. The Court decided Snepp without the benefit of briefing on the merits or oral argument, and it relegated consideration of the First Amendment issue to a single footnote outside the substantive portion of its opinion. The Court has held that decisions generated in this way don’t warrant the deference ordinarily accorded to past opinions.
Finally, the Court should revisit Snepp because the case has been badly misread by lower courts. Lower courts have interpreted Snepp to bless the modern system of prepublication review, but it did no such thing. Snepp merely held that the First Amendment doesn’t prevent the CIA from imposing a prepublication review requirement on a former CIA officer who had access to the government’s most closely held secrets. The case did not exempt all prepublication review regimes from meaningful scrutiny, regardless of the adequacy of the safeguards they have in place to protect free speech. But that is how it’s been read. As a result, millions of former government employees are now subject to a sprawling system of prior restraint that lacks the safeguards that the Court has generally insisted on in other contexts involving censorship schemes.
Why is it so important that the Supreme Court decide this question now?
As our petition explains, litigation over prepublication review is uncommon and rarely generates substantive decisions—litigation is expensive and authors often prefer to publish manuscripts with redactions rather than wait for courts to resolve disputes. Authors have also been dissuaded from bringing constitutional challenges because Snepp has been treated as exempting prepublication review regimes from meaningful First Amendment review. There have been only two such challenges in the last four decades, including our lawsuit. In both cases, the court of appeals assumed that Snepp had blessed prepublication review writ large and so gave little weight to First Amendment interests in evaluating the constitutionality of the agency prepublication review requirements at issue.
In other words, if the Court doesn’t take this opportunity to revisit Snepp, it’s unlikely that the Court will get another opportunity to do so anytime soon.
What if the Court decides to not take the case? Do the president and Congress also have a role in reforming prepublication review?
If the Court fails to take the case, the president and Congress should step in. In a policy paper released earlier this year, the Knight Institute called on the president to issue an executive order that would streamline the system, establish robust procedural safeguards, and mandate transparency around the prepublication review system’s operation. The Institute also called on Congress to ensure the durability of these reforms by backing the executive order with legislation.
It’s clear what needs to be done to fix the prepublication review system. The president and Congress only need to act.
Research for this report was contributed by Saisha Mediratta, legal extern at Knight Institute.
A. Adam Glenn was a writer/editor at the Knight First Amendment Institute.