WASHINGTON —The U.S. Supreme Court today denied a petition seeking review in a case challenging the constitutionality of four intelligence agencies’ “prepublication review” systems, which prohibit millions of former intelligence agency employees and military personnel from writing or speaking publicly about their area of expertise without first obtaining the government’s approval. In 2019, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union brought the legal challenge on behalf of five former government employees.
“We’re disappointed that the Court won’t hear this case, because the intelligence agencies’ prepublication review policies are simply indefensible as a First Amendment matter,” 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.”
The Knight Institute and the ACLU filed the case in April 2019 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. The plaintiffs continue to be subjected to prepublication review, and their experiences navigating the broken review process—including delays, demands that they omit information that is not classified, censorship decisions that appeared to be fueled by concerns about embarrassment rather than national security, and increased costs for publishers and co-authors—highlight the defects in the current system.
The intelligence agencies’ prepublication review systems have expanded dramatically in the last 42 years, in large part because courts have understood Snepp v. United States—the 1980 Supreme Court precedent the petition asked the Court to reconsider—to mean that these regimes are exempt from meaningful scrutiny under the First Amendment. What was initially a narrow censorship program largely limited to CIA spies has since grown into a sprawling system of prior restraint that restricts the speech of millions of people for their entire lives. As a result, many former public servants are subject to onerous and far-reaching restrictions on their speech that lack the safeguards the Supreme Court has insisted on in related contexts.
“The government’s prepublication review systems, in their current form, are broken,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy and Technology Project. “They subject millions of former government employees to censorship without any binding timelines or clear standards for review, opening the door to silencing speech because it is critical of the government—not because it holds any national security risk. Now that the Supreme Court has refused to take corrective action, Congress should step in.”
In light of today’s decision, the groups call on the Biden administration and Congress to reform the current prepublication review regime. As part of a broader effort to strengthen transparency and accountability in the national security sphere, President Biden should issue an executive order that clarifies and narrows submission and review criteria, establishes new procedural safeguards, and mandates transparency about the prepublication review system’s operation. To ensure that future administrations do not roll back these reforms, Congress should reinforce the executive order with legislation.
Read more about the case here.
Read the Knight Institute’s prepublication policy paper here.
Lawyers on the case include, in addition to Jaffer and Eidelman, Alex Abdo, Ramya Krishnan, and William Hughes of the Knight Institute; Brett Max Kaufman of the ACLU; and David Rocah of the ACLU of Maryland.
For more information, contact: Adriana Lamirande at [email protected].