Last week, a district court in Maryland dismissed a constitutional challenge to the system of prior restraints that prohibits millions of former intelligence agency employees from writing or speaking about their public service without first obtaining the government’s approval. In a ruling issued on Thursday, Judge George Hazel of the U.S. District Court for the District of Maryland held that the plaintiffs—represented by the ACLU and the Knight First Amendment Institute at Columbia University—had standing to pursue the challenge but that the prepublication review system is constitutional. Since we are among the lawyers for the plaintiffs in the case, and since we have already said that we intend to appeal, it won’t be a surprise to anyone that we think that Judge Hazel was wrong to dismiss the case. As we explain below, however, the court’s ruling should trouble even those who believe that the current system is constitutionally defensible.
The plaintiffs in the suit are five former public servants with more than a combined century of experience in the Intelligence Community. In their complaint, they allege that the prepublication review regimes of four agencies—the CIA, the Defense Department, the NSA, and the Office of the Director of National Intelligence—violate the First Amendment because they invest the agencies with sweeping discretion to suppress speech and because they lack constitutionally required procedural safeguards. The plaintiffs also allege that these regimes are unconstitutionally vague, both because they fail to inform former government employees of what they must submit for review and what they can publish, and because they invite arbitrary and discriminatory enforcement by agency censors.
Judge Hazel held that the plaintiffs had standing to pursue their challenge, rejecting the government’s argument to the contrary. On the merits, though, he sided with the government, reasoning that the case was controlled by Snepp v. United States, a 40-year-old case in which the Supreme Court allowed the CIA to seize the book proceeds of a former agency officer who had published his manuscript without submitting it for prior review. In Judge Hazel’s view, Snepp established that the prepublication review system should not be evaluated under the stringent standards that usually apply to prior restraints. Judge Hazel also reasoned that, given Snepp, what our clients characterized as constitutional defects in the prepublication review system—the breadth and vagueness of submission and review standards, and the absence of procedural safeguards—in fact “have little bearing” on the system’s constitutionality.
In our view, Judge Hazel’s conclusion that the Supreme Court effectively upheld the current prepublication review system 40 years ago is untenable. We say this for a few reasons.
First, in Snepp, the Supreme Court focused almost entirely on a question of remedy: whether the CIA could lawfully impose a constructive trust on the proceeds of a book that Frank Snepp had published without submitting for review. The Court did not seriously consider the First Amendment interests at stake—indeed, the phrase “First Amendment” appears only twice in the Court’s opinion, once in a description of the lower court’s reasoning and once in a conclusory footnote. The Court did not discuss, let alone analyze, the specifics of the CIA’s prepublication review system. Nor did it consider, or have occasion to consider, the outer limits of the government’s authority to impose prepublication review obligations. For example, it did not address what materials an agency might constitutionally require its former employees to submit for review, or what standards an agency might constitutionally use in conducting its review, or what sorts of procedural safeguards might be constitutionally required.
Second, the legal landscape has changed since Snepp was decided. Most significantly, in United States v. National Treasury Employees Union (NTEU), decided in 1995, the Supreme Court clarified that prior restraints imposed on public employees are subject to essentially the same scrutiny as prior restraints imposed in other contexts. NTEU is best understood to have limited Snepp to its facts.
Third, the factual landscape has changed dramatically, too. In 1980, a relatively small number of former government employees were subject to a prepublication review obligation. Today, every intelligence agency imposes some kind of prepublication review obligation on at least some category of its former employees. There are also many more former employees, and there is much more classified information. As a result, far more people are subject to prepublication review requirements, and far more material is subject to review. (One measure: In the 1970s, the CIA reviewed approximately 1,000 pages per year, whereas in 2014, it reviewed approximately 150,000 pages.) The system that exists today bears little resemblance to the one the Court considered (without really considering) in Snepp.
For these reasons, it’s not persuasive to say that Snepp controls the question of whether the current system of prepublication review is constitutional. The constitutionality of today’s system must turn on the features and defects of today’s system. And indeed, Judge Hazel’s view that the specifics of the current system “have little bearing” on the constitutional analysis—or are “irrelevant,” as the opinion states in one passage—should trouble even those who believe the current system is constitutional. This is because the implication of this view is that Snepp was a green light not just for the current system, but for any system the agencies may conjure up in the future.
The voices of former public servants are essential to public deliberation about government policy. The intelligence agencies are at the center of many of the most significant contemporary policy debates—including debates about warrantless wiretapping, foreign state interference in our elections, and the United States’ preparedness (or unpreparedness) for the COVID pandemic. The public’s understanding of the intelligence agencies’ policies, operations, and decisions depends in significant part on the willingness and ability of former public servants to share the knowledge and expertise that they acquired during their public service. We need to hear these voices, but if we want to hear them, we have to fix the obstacle course that prepublication review has become. Judge Hazel’s decision exempting prepublication review from meaningful First Amendment scrutiny is a step in the wrong direction.