The Knight First Amendment Institute at Columbia University and the American Civil Liberties Union petitioned the U.S. Supreme Court this week to take on a case that would challenge the current system of government pre-publication review. The writ of certiorari was filed on behalf of five former government employees, who claim their First Amendment rights are being unreasonably stifled by a non-transparent government review process.
The case, Edgar v. Haines, was first filed in 2019, and argues that the current review system "invites arbitrary and discriminatory enforcement by censors," with virtually no recourse or accountability. In April 2020, a district court in Maryland dismissed the case, claiming the plaintiffs’ pre-publication agreements were not inconsistent with the First Amendment. And on June 23, a three-judge panel of the Fourth Circuit U.S. Court of Appeals affirmed the dismissal, citing a 41-year-old Supreme Court decision in Snepp v. United States, which held that “reasonable” pre-publication review agreements are constitutional.
The Knight/ACLU petition urges the Supreme Court to reconsider its decision in Snepp.
“The pre-publication 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, in a statement.
The petition argues that the policies governing publication have expanded dramatically in the last 40 years from “a narrow censorship program largely limited to CIA spies” to a “sprawling system of prior restraints on free speech" that now covers "millions" of government employees and contractors without any transparency or meaningful accountability.
“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 approval before they write or speak publicly, without any real protections in place,” added 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.”
The government review process received significant attention in 2020, after former national security advisor John Bolton published his bestselling memoir The Room Where It Happened without receiving an official clearance from the government. Bolton was later sued by the U.S. Department of Justice, which unsuccessfully sought to block publication, and later sought to attach Bolton’s earnings from the book.
In his defense, Bolton’s attorneys argued that political appointees in the Trump administration had improperly hijacked the review process to block publication of a book that might embarrass Trump. Bolton’s claims were later backed up in a bombshell letter filed with the court by attorneys for Ellen Knight, a former senior director at the National Security Council, who conducted the review process and cleared Bolton’s book for publication only to see Bolton's official clearance held up by political appointees. Knight also alleged that she was pressured to change her findings, and was eventually removed from her post when she refused.
In January, a federal judge rejected the DoJ’s bid for summary judgment iand greenlighted Bolton’s team to pursue evidence that political appointees had abused the review process in an attempt to block Bolton's book. But in June, the DoJ abruptly dropped the case against Bolton, effectively ending the inquiry.
The petition is not the first attempt by the Knight Institute and the ACLU to shed light on the pre-publication review process. Between 2016 and 2018, Knight and the ACLU filed multiple Freedom of Information Act requests and two related lawsuits seeking records related to government pre-publication processes and policies. The FOIA requests are still being processed.
"It is a remarkable and under-examined fact that the U.S. intelligence agencies require millions of former employees, contractors, and even interns to submit works for review prior to publication," wrote Knight staffer Ramya Krishnan in a 2018 analysis. Krishnan noted that the "criteria for submission and review are vague and overbroad; censors’ decisions are arbitrary; and authors who receive an adverse determination lack effective recourse."