On Tuesday, April 2, 2019, the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University filed a lawsuit in the United States District Court, District of Maryland, on behalf of five former federal employees challenging the constitutionality of prepublication review. Former government and intelligence agency employees must submit manuscripts and drafts for government review before publication due to a lifelong obligation to keep national security secrets for as long as the information is considered classified by the government. The lawsuit alleges violations of both the First Amendment and the Fifth Amendment.
The First Amendment challenge to the constitutionality of prepublication review is based not only on the claim that the system of prepublication review violates authors’ rights, but also the public’s right to hear the opinions of former government employees on important issues in a timely manner. The civil liberties groups allege that prepublication review can take weeks or months. The lawsuit also alleges that the plaintiffs’ Fifth Amendment rights are violated because the system of prepublication review often does not provide authors with fair notice of what may and may not be published, and because the system of prepublication review “invite[s] arbitrary and discriminatory enforcement.”
The civil liberties groups argue that many employees must abide by prepublication review regardless of their level of access to sensitive information. Further, the groups argue that the requirements for submission and standards of review are “vague, confusing, and overbroad.” Decisions as to censorship are “often arbitrary, unexplained, and influenced by authors’ viewpoints.” The groups illustrate a system of special treatment for favored officials, resulting in more sympathetic reviews that are often fast-tracked. Finally, the groups argue that authors who are censored have no effective recourse to challenge decisions.
There are at least seventeen (17) federal government agencies that enforce some system of prepublication review. In a 2007 essay, John Hollister Hedley, a former chairman of the Central Intelligence Agency’s publication review board wrote that prepublication review “is neither censorship nor a declassification process. . . [The review seeks to implement] the absolute minimum of deletions, if any, that would uphold both the [Director of Central Intelligence’s] authority and the individual’s constitutional right to free speech under the First Amendment.” The Central Intelligence Agency declined to comment on the lawsuit, as it does not comment on pending litigation.
Censorship or safeguard? Groups challenge pre-pub review, The Washington Post (April 2, 2019)
Edgar et al v. Coats et al, Case No. 8:2019cv00985 (April 2, 2019)
Complaint in Edgar et al v. Coats et al, Case No. 8:2019cv00985 (April 2, 2019)