On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit challenging the constitutionality of “prepublication review,” a far-reaching system of censorship that prohibits millions of intelligence-agency employees and military personnel from publishing or speaking about topics related to their government service without first obtaining government approval.
The Knight Institute and the ACLU represent five former public servants who are arguing that this broken system violates the First Amendment right of authors to convey and of the public to hear, in a timely manner, the opinions of former government employees on issues of public importance. It also argues that the system of prepublication review violates the Fifth Amendment because it fails to provide former employees with fair notice of what they can and cannot publish without prior review, and it invites arbitrary and discriminatory enforcement by censors. On April 16, 2020, the district court granted the government's motion to dismiss, holding that the government's sweeping system of prepublication review is constitutional. On June 23, 2021, the Fourth Circuit held that the defendant agencies' prepublication review regimes do not violate the First Amendment.
The lawsuit is based in part on a series of FOIA requests submitted by the Knight Institute and the ACLU between 2016 and 2018. Those requests are now the subject of separate litigation.
Status: On November 22, 2021, the Knight Institute and the ACLU filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of the Fourth Circuit's judgment.
Case Information: Edgar v. Haines, No. 8:19-cv-985-GJH (D. Md.), No. 20-1568 (4th Cir.), No. 21-791 (S. Ct.).