NEW YORK — The Knight First Amendment Institute at Columbia University and the ACLU today filed a Freedom of Information Act (FOIA) lawsuit seeking records related to the Trump administration’s prepublication review of publications that laud or criticize the administration’s signature policies and undertakings. The lawsuit comes at a time of increasing public concern that the administration is leveraging the prepublication review process to suppress critical voices or to favor sympathetic ones.
“Recent events strongly suggest that the Trump administration is abusing the prepublication review process to keep the public from knowing critical information about the president and his administration in the lead up to the 2020 elections,” said Ramya Krishnan, Staff Attorney at the Knight First Amendment Institute at Columbia University. “If the administration is using prepublication review as a tool to favor loyalists and to silence its critics, the public has a right to know before the elections.”
Today’s lawsuit seeks records pertaining to the government’s prepublication review of former National Security Advisor John Bolton’s memoir as well as several other works by former senior Trump administration officials, including former acting FBI director Andrew McCabe, former acting Attorney General Matthew Whitaker, and former National Security Advisor H.R. McMaster, as well as former Obama administration officials, including former CIA Directors Michael Hayden and John Brennan, both forceful critics of the Trump administration. The plaintiffs submitted a FOIA request on January 27, 2020, and to date have not received responsive records.
“If this is how the administration is treating high-profile former officials in the spotlight, imagine how they're treating the millions of others who don't have the resources to fight back," said Brett Max Kaufman, Senior Staff Attorney at the American Civil Liberties Union.
According to today’s complaint, “The requested records will help the public to evaluate whether the Administration has strategically deployed prepublication review to amplify favorable speech and suppress critical speech. It is crucial that the electorate can make such a determination prior to the November 2020 election so it can assess whether the information cleared by the Administration is accurate or whether it reflects an improperly censored account of the Administration’s activities.”
“Former public officials are uniquely positioned to share insights into government activities,” said Meenakshi Krishnan, Legal Fellow at the Knight First Amendment Institute. “Any attempt to use prepublication review to suppress criticism in advance of an election raises significant First Amendment concerns.”
The groups are suing the Department of State, Department of Justice, Central Intelligence Agency, National Security Agency, Federal Bureau of Investigation, Office of the Director of National Intelligence, Department of Air Force, and Department of the Army.
A copy of today’s complaint can be found here.
On April 2, 2019, the Knight Institute and ACLU filed a lawsuit on behalf of five former public servants challenging the government’s system of prepublication review. The plaintiffs argue that the system violates the First and Fifth Amendments. On April 16, 2020, a district court granted the government’s motion to dismiss the case, holding that the plaintiffs had standing to pursue the challenge but that the prepublication review system is constitutional. The plaintiffs have appealed. More information about this lawsuit, Edgar v. Ratcliffe, is available here.
An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here.
For more information, contact Lorraine Kenny, firstname.lastname@example.org.