The Unreasonableness of "Reasonable" Prepublication Review, Part 1
In 1931, the landmark decision Near v. Minnesota established that, as a general matter, prior restraints—“government action[s] that prohibit[] speech or other expression before the speech happens”—are unconstitutional under the First Amendment. As with most First Amendment jurisprudence, the decision recognized that there could be exceptional circumstances in which prior restraints may be allowable, notably in the context of national security. In 1971, the Pentagon Papers case held that even in cases of national security, there is a “heavy presumption against [the] constitutional validity” of prior restraints. The Pentagon Papers case is one of the most important in First Amendment jurisprudence. In holding that the Nixon administration could not prevent The New York Times or The Washington Post from publishing articles detailing the findings of a classified report improperly leaked by a third party, the Court established the principle that the government may not simply use a vague invocation of national security to censor an individual prior to publication.
Notwithstanding this core tenant of First Amendment law, federal agencies currently enforce a prior restraint scheme: before intelligence community (IC) members or former members may publish any material that may include any national security information—whether that be submitting a resume for a job application or writing a book—they must submit the material for prepublication review by the government. This practice of prepublication review infringes on the speech rights of thousands of Americans.
What Prepublication Review Is Meant to Do
Government employees and contractors who work as intelligence officers with security clearances are required to sign employment contracts mandating that they will submit any material they intend to publish for review by the agency they worked in. An unclassified but partially redacted memorandum for the Central Intelligence Agency describes the requirements of the process as carried out by the CIA:
The CIA requires all current and former Agency employees and contractors, and others who are obligated by CIA secrecy agreement, to submit for prepublication review to the CIA’s Publication Review Board (PRB) all intelligence-related materials intended for publication or public dissemination, whether they are communicated in writing, speeches, or any other methods; and whether they are officially sanctioned or represent personal expressions[.]
In theory, the purpose of the review is to ensure that no classified information is accidently or inadvertently released. The National Security Agency’s page on prepublication review describes it as a “process to determine that information for public release contained no protected information,” and as part of a former intelligence officer’s “lifelong” duty to “[s]afeguar[d] protected information.”
Prepublication review is supposed to function within a larger legal structure that promotes governmental transparency as a core of our democratic values. Executive Order 13526, which serves as the primary governing law on classification in the national security space, opens with the recognition that “[o]ur democratic principles require that the American people be informed of the activities of their Government” and that “our Nation’s progress depends on the free flow of information . . . to the American people.” Similar transparency values are reflected in laws such as the Freedom of Information Act (FOIA).
In practice, however, the prepublication process fails to meet the democratic transparency goals established in Executive Order 13526 and elsewhere. The process allows for unreasonable restraints or delays to the exercise of the free speech rights of thousands of Americans. According to a report from the Office of Management and Budget, in 2014, there were more than five million people—more than 1.5 percent of the population of the U.S. and more than the total population of Norway—with security clearances in the United States. This means that a significant portion of the American population may be subject to prepublication review.
What Prepublication Review Actually Does
The limits prepublication review places on free expression are significant. Yale Law School Professor Oona A. Hathaway and Harvard Law School Professor Jack L. Goldsmith, both of whom have served as government lawyers within the IC, have written various pieces (here, here, and here) on the problems that prepublication review creates for democratic discourse. Based on their own and others’ experiences with prepublication review, Hathaway and Goldsmith identify multiple problems with prepublication review processes:
The problems, in a nutshell, are (a) the stated criteria for review go far beyond what is needed to identify classified information in a draft for publication, (b) the chilling effect of these standards is exacerbated by reviewers who broadly interpret their mandate, (c) the review process sometimes takes longer than the specified review periods, leaving authors in limbo and with no recourse, and (d) vague criteria give reviewers enormous discretion over what the public can see, again usually without effective recourse by authors.
Hathaway and Goldsmith are not alone in their critiques. After having served as both an employee and a contractor to the NSA, Dr. Thomas Reed Willemain sought to publish a memoir of his time in the IC “motivated, in part, by a hope that [he] could help counter the intensely negative views of the NSA in the media and popular fiction.” The prepublication review process, however, soured his perception of the IC.
The prepublication review process is so onerous that some individuals have turned down offers to work in the IC and some former IC members decide not to submit their materials for review. In this way, the current system discourages qualified individuals from working in the IC because they know they will either face potential censorship or prosecution. Ironically, therefore, a process intended to increase national security can actually put us all at increased risk.
Some former IC members have become so frustrated with the prepublication review process that they have turned to litigation. Last year, former CIA agent Nada Bakos sued the CIA for “infringing on her right to publish unclassified information” after her manuscript was delayed for over two years and heavily redacted by the Prepublication Review Board. In 2002, attorneys from Judicial Watch filed lawsuits against the government on behalf of former FBI agents Robert G. Wright, Jr. and John Vincent as a result of their own difficulties in dealing with the prepublication review processes of the FBI and Office of Public and Congressional Affairs. Though the Judicial Watch cases eventually settled, the District Court for the District of Columbia ruled in Wright and Vincent’s favor on the majority of claims at the summary judgment stage. In 2017, the ACLU wrote to members of Congress about the problems with prepublication review after a manuscript addressing government torture written by former NCIS employee and Guantanamo Bay investigator Mark Fallon was held up for more than seven months. Most recently, the Knight First Amendment Institute at Columbia University and the ACLU filed a lawsuit against various national security agencies to enforce FOIA requests seeking records relating to the prepublication review processes of various agencies.
What Led Us Here and Where Do We Go Next
In 1980, the Supreme Court reasoned that the government has a “compelling interest” in protecting classified information and that prepublication review is a “reasonable means for protecting this vital interest.” But, as the evidence presented here makes clear, the reasonableness of prepublication review in practice is increasingly doubtful. All of this begs the question of how—within a legal framework structured around an explicit presumption that increased government transparency is best—such a broken system came to be.
In the second half of this series, I answer that question by considering the history of prepublication review and how a recent case highlights the wider consequences of this broken system.