ACLU and Knight Institute Challenge Constitutionality of Far-Reaching Government Censorship System
Organizations Argue “Prepublication Review” Unconstitutionally Restricts Speech of Millions of Former Public Servants
GREENBELT — The American Civil Liberties Union and Knight First Amendment Institute at Columbia University today filed a lawsuit on behalf of five former public servants challenging the government’s “prepublication review” system, which prohibits millions of former intelligence-agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval. The plaintiffs argue the system violates the First and Fifth Amendments, and they call on the courts to block the government from enforcing it in its current form.
“The prepublication process in its current form is broken and unconstitutional, and it needs to go,” said Brett Max Kaufman, staff attorney with the ACLU’s Center for Democracy. “It’s one thing to censor the nuclear codes, but it’s another to censor the same information high schoolers are pulling from Wikipedia. Prepublication review gives the government far too much power to suppress speech that the public has a right to hear.”
The lawsuit was filed 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. Between them, they served in the intelligence community and the military in a diversity of roles for almost a century. The plaintiffs have submitted written works for prepublication review in the past and intend to continue writing works subject to review in the future.
Prepublication review is not governed by a single executive-branch-wide policy. Rather, agencies impose lifetime prepublication review obligations through a complex tangle of regulations, policies, and non-disclosure agreements. The complaint filed today describes a broken system. Submission requirements and review standards are vague, confusing, and overbroad. Manuscript review frequently takes weeks or even months. Agencies’ censorial decisions are often arbitrary, unexplained, and influenced by authors’ viewpoints. Favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically.
“This far-reaching censorship system simply can’t be squared with the Constitution,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute. “The government has a legitimate interest in protecting bona fide national-security secrets, but this system sweeps too broadly, fails to limit the discretion of government censors, and suppresses political speech that is vital to informing public debate.”
Four of the five plaintiffs joining the lawsuit had work subjected to long publication delays and haphazard redactions. For instance, it took nearly eight months, a letter to six senators, over a dozen requests for updates, media attention, and the ACLU and the Knight Institute’s involvement for the government to complete its review of a manuscript of Fallon’s book about the George W. Bush administration’s interrogation and torture policies. Immerman’s manuscript, which did not refer to any classified information he obtained in the course of his employment with the ODNI or State Department, took six months for review and was returned with extensive redactions. Some redactions related to information that had been published previously by government agencies, and many of them related to events that had taken place, or issues that had arisen, after Immerman had left government. In some instances, the government redacted citations to newspaper articles.
The plaintiffs argue that the prepublication review regimes they are challenging violate the First Amendment because they impose sweeping, indefinite prior restraints that suppress or deter core political speech, including speech that is unclassified or already in the public record. They also claim that the system violates the Fifth Amendment because it fails to give them fair notice of what they have to submit and of what they can and cannot say, and because it invites arbitrary and discriminatory enforcement.
The lawsuit was filed in the District of Maryland and against the CIA, NSA, Office of the Director of National Intelligence, and Department of Defense. Between 2016 and 2018, the groups filed seeking documents on prepublication review processes and practices. The documents reveal that the system has grown increasingly far-reaching and burdensome in recent years.
The complaint can be found here: /legal-document/aclu-and-knight-institute-challenge-constitutionality-far-reaching-government.
A blog post on today’s lawsuit can be found here: /blog/free-speech/employee-speech-and-whistleblowers/governments-system-censoring-its-former
Free Speech
Edgar v. Haines
Free Speech
Edgar v. Haines
Learn More About the Issues in This Press Release
-
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.