Edgar v. Coats

The Knight Institute and the ACLU filed suit in the District of Maryland challenging the constitutionality of “prepublication review,” a far-reaching system of censorship that 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.

Today, at least 17 federal government agencies administer some form of prepublication review through a tangle of complex regulations, policies, and non-disclosure agreements. Many agencies impose prepublication review obligations on former employees without regard to their level of access to sensitive information. Submission requirements and review standards are vague, confusing, and overbroad. Review frequently takes weeks or even months. 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. And authors lack effective recourse to challenge adverse decisions. As a result of the system’s dysfunction, many would-be authors self-censor, and the public is denied access to speech by former government employees that has singular potential to inform public debate about national-security policy.

The suit argues that this broken system violates authors’ First Amendment rights as well as the public’s right to hear, in a timely manner, the opinions of former government employees on issues of utmost importance. The suit also argues that the system of prepublication review violates the Fifth Amendment because it often 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.

The suit is based in part on a series of Freedom of Information Act requests filed by the Knight Institute and the ACLU between 2016 and 2018.