In December, in a series of editorials published in The Washington Post and Just Security, Jack Goldsmith and Oona Hathaway made the case for reforming the government’s broken prepublication review system. Through secrecy agreements and a patchwork of regulations, intelligence community agencies have for decades required past and present employees to submit any works (written or oral, fiction or non-fiction) for security review prior to publication. Goldsmith and Hathaway sought to draw attention to the that inhere in this system and to spur a debate about . (In response, Steven Aftergood had a .) There is, however, a major hurdle to reform efforts: Although anecdotal evidence shows instances of egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government, little is known about how prepublication review actually works.
We do know that the prepublication review system has many — often vocal — critics. For instance, in a book published just two weeks ago, Michael Hayden, former NSA and CIA director, made one hell of an accusation: He says he wrote an opinion piece in April 2015 in the wake of a US drone strike that killed two hostages, but the CIA’s publication review board told him “that no articles about drones would be cleared regardless of content.” This, in his view, was “a misuse of the review process” and “just plain stupid.” History encourages taking what Hayden says with a — but if this story is true, he’s certainly right.
And Hayden’s story is indeed plausible. Two other former CIA directors — and — have shared similar experiences. So has former FBI agent Ali Soufan, who claims that redactions by the CIA’s publication review board to his memoir about Bush-era counterterrorism were politically motivated. Prepublication review, , “has more to do with trying to protect a narrative … than protecting classified information.”
These stories are consistent with the little we know about the process from the handful of lawsuits that have challenged the censorship determinations of prepublication review panels. Not surprisingly, these suits tend to involve works that are critical of the agencies in question. In , evidence showed that “the CIA’s past enforcement record bears a considerable correlation with the agency’s perception of the extent to which the material is favorable to the agency.” In plain English: The CIA was using prepublication review to silence those who disagreed with it. Other cases involved delays in the review process of months or .
But while these anecdotes, and the concerns expressed by Goldsmith and Hathaway, hint at a problematic process, we still need a great deal of information to determine the extent of the rot in the system. For example, we know that virtually everything written by government employees who have ever held a security clearance is subject to prepublication review. But how, exactly, these requirements are enforced remains a mystery. What are government censors even looking for when they review a piece? The ostensible purpose of review is to protect classified information, but, as explained above, there are indications that more nefarious purposes are at play. Information about the criteria used would help us understand how broadly these reviews cast their nets.
And the government’s enforcement of its own rules is also something of a black box. How does the government decide whom to punish, and how, for failing to submit a piece for review? We rarely hear about such cases, but is that ? Do certain authors get preferential treatment from review boards? Is prepublication review being used to silence certain viewpoints on important topics of national debate — in other words, to protect not just government equities but government spin? These are critical questions, but we don’t even have a good handle on how many pieces the government reviews, let alone a comprehensive view of what is (and is not) passing through the censors, and for what reasons.
As Goldsmith and Hathaway , the concerns they aired are merely “the tip of an iceberg. The vast majority of those who encounter this broken process remain silent because they think their difficulties are isolated or minor or because they fear repercussions.” This is classic First Amendment territory, and the government seems to have taken it over. In 1980, the Supreme Court a First Amendment challenge to the enforcement of a prepublication review requirement. But since then, Goldsmith and Hathaway write, the burdens of prepublication review on authors have gotten worse. In no small part, this forced silence is why it’s so difficult to get a grasp on how and why censorship decisions are made. There’s also a “mess of inconsistent regulations,” as Goldsmith and Hathaway , since there is no government-wide standard and no administrative appellate body with authority over the censorship determinations of individual agencies.
In an effort to improve this state of affairs, last week the ACLU filed a Freedom of Information Act request seeking records from all intelligence agencies about the standards governing prepublication review and the way those standards are applied. Specifically, we want to know how prepublication review processes are designed; how the applicable rules are enforced; and the impact the review processes have on current and former employees who aim to participate in the public debate. (Of course, if you happen to know something about any of these things, we’d love to hear from you, too.) Our hope is that the information we obtain can be used to assemble a richer picture of the problems described by Goldsmith, Hathaway, and others, and to clarify the path towards fixing a broken system.
This was originally posted on .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.