Those of you that work in national security, working for agencies like the CIA, DoD, NSA, and the Office of the Director of National Intelligence (ODNI) should be quite familiar with the respective prepublication rules, especially if you fancy yourself as a writer. However you may not know of a recent case in which five federal employees challenged those rules based on the First Amendment right to free speech.
Prepublication Rules
The prepublication rules (both in policy and agreed terms of employment), in essence, are very similar within the four government agencies. They have basic criteria that all current and former employees submit to the agency prior to publication to give the government the chance to review and if necessary, redact materials that might contain classified or even sensitive information.
In a recent case that you may be familiar with, John Bolton, was denied the opportunity to publish his book by the courts until the ODNI had the chance to formally review it. In 2011, a CIA officer, who was working under a pseudonym, was held liable by the court for publishing his book “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture”. Without boring you with legalese, both courts used the case of U.S. v. Snepp (centering around a Vietnam era memoir) as precedence to rule against the individuals.
The Case of Edgar v. Haines
In the case of Edgar v. Haines with plaintiffs Avril Haines, in her official capacity as Director of National Intelligence; David Cohen, in his official capacity as director of the CIA; Lloyd Austin, III, in his official capacity as Secretary of Defense; Paul Nakasone, in his official capacity as director of the NSA, decided on appeal last week by the United States Court of Appeals for the Fourth Circuit, five separate government employees (from three of the four agencies) had alleged in their initial complaint that the redaction practices in general had violated their First Amendment rights to free speech:
Defendants’ prepublication review regimes violate the First Amendment because they invest executive officers with sweeping discretion to suppress speech and fail to include procedural safeguards designed to avoid the dangers of a censorship system.
…and fail to give former employees fair notice of what they must submit for review” and “fail to provide explicit standards for reviewers, thus inviting arbitrary and discriminatory enforcement.”
One of the five employees, Timothy Edgar was an ODNI employee from 2006 to 2013 and held a Top Secret/SCI clearance. In October 2016, Edgar submitted to the ODNI for review a manuscript for his book Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA. Edgar alleged that some of the required redactions “related to events that had taken place, or issues that had arisen, after [he] had left government” and that others “related to facts that were widely discussed and acknowledged though perhaps not officially confirmed.” He did not, however, challenge the mandated redactions because he did not want to delay publication of the book and because he wanted to maintain “a good relationship with reviewers at the ODNI.” Edgar is uncertain if his writing career is now done.
The Court Responds
The District Court for the District of Maryland at Greenbelt granted the defendant agencies Motion to Dismiss in April of last year and the plaintiffs appealed. While the Appellate Court agreed the parties have standing to sue on the matter, they concurred with the lower court in ruling the agencies were using similar guidance that did not violate First Amendment Rights. Under the precedent set in the Snepp case the real issue is narrowed down to whether the defendant agencies’ prepublication review regimes are a reasonable and effective means of serving that interest.
In summation, the Appellate Court had some strong words:
The national security agencies’ policies and regulations that the plaintiffs challenge here are all directed at ensuring the Nation’s security and maintaining security-related secrets, which go to the core of the agencies’ mission. And the plaintiffs’ employment contributing to fulfilling that mission was especially important national service. For this, the plaintiffs can be proud, and the public is grateful. But the plaintiffs’ special employment carried with it a serious responsibility not to impair the agencies’ work, which could be compromised irreversibly by the inadvertent disclosure of national secrets. While it is understandable that the plaintiffs, as former employees, now wish to share their experiences or, yet more, to comment on public policy as informed by those experiences, doing so in light of their exposure to numerous state secrets is fraught with danger to the national security. And it goes without saying that national security is one of the federal government’s overarching responsibilities — one necessary to the protection of the liberties guaranteed by the Constitution — and therefore must be given a high priority. It is thus a compelling interest. In this case, we conclude that in balancing the effective protection of national security secrets with the speech interests of former employees and the public, we must, as necessary to serve the national interest, require some give in the plaintiffs’ speech interests. And indeed, in the employment agreements that the plaintiffs signed, they freely gave their assent to this.
Without a crystal ball, we can’t know the future legal shelf life for this case, but it will be interesting to see if the case will be appealed to the Supreme Court and if so, whether they will even agree to hear it.
