ACLU, Knight Institute Petition Supreme Court to Review Constitutionality of Intelligence Agencies’ “Prepublication Review” System

November 22, 2021 4:00 pm

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WASHINGTON — Today, on behalf of five former government employees, the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University petitioned the U.S. Supreme Court to review a challenge to the government’s system of “prepublication review,” which prohibits former public servants from writing or speaking publicly without first obtaining the government’s approval. The groups urge the court to overrule a 41-year-old Supreme Court decision, reconsider the legal standard applicable to government prepublication review, and hold that the prepublication review systems being challenged are unconstitutional.

“For 40 years, the government has treated a brief footnote in an old case as a blank check to subject millions of former government employees to government pre-approval before they write or speak publicly, without any real protections in place,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “But former employees like our clients are exactly the kinds of people the public needs to hear from in public debates about national security, foreign policy, and war. It’s long past time for the Supreme Court to make clear that the First Amendment rejects the current prepublication review system of unbridled prior restraints.”

The intelligence agencies’ prepublication review systems prohibit millions of former intelligence-agency employees and military personnel from writing or speaking about broad topics like “national security” without first obtaining government approval, regardless of whether they ever had access to sensitive information and even if they do not plan to discuss information they learned during their employment. As today’s petition explains, the prepublication review process has expanded dramatically in the last 40 years, in large part because courts have understood the underlying legal standard established in Snepp v. United States—the 1980 Supreme Court precedent the petition seeks to upend—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 restraints 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 that the Supreme Court has insisted on in related contexts.

The ACLU and the Knight Institute 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 hurdles, and their experiences navigating the broken review process highlight the defects in the current system.

“The prepublication review system imposes an intolerable cost on the free speech rights of former public servants, and it distorts and impoverishes public debate about issues that could hardly be more important,” said Jameel Jaffer, executive director of the Knight First Amendment Institute. “At least in their current form, these prepublication review regimes are fundamentally inconsistent with the First Amendment.”

The petition urges the court to grant certiorari and to reconsider Snepp, “which failed to scrutinize prepublication review as a system of prior restraint, did not adequately account for the public’s interest in the speech suppressed by the system, and is inconsistent with the Court’s more recent First Amendment jurisprudence.”

Link to the petition is here:

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