Weaver v. United States Information Agency

WALD, Circuit Judge,

dissenting:

The majority’s opinion is a triumph of judicial inventiveness. In a credulity-defying exercise, my colleagues conclude that the challenged prepublication clearance regulation permits the VOA only to require review of employee-authored publications and to offer advice to authors, not to forbid publication of manuscripts until agency consent has been bestowed — reaching this conclusion despite the regulation’s unequivocal statements that all materials of official concern “shall be submitted ... for clearance,” no material may be published “until it has been cleared,” and “[clearance will not be granted” until the employee has deleted all objectionable material.

The majority’s interpretation is one only a lawyer could love — or comprehend. Carolyn Weaver, the non-lawyer plaintiff in this case, says she did not understand the regulation as authorizing only review and advice. Nor, so far as can be ascertained, did any other employee of the VOA read the regulation this way — for by the agency’s own admission every single employee who submitted material for review subsequently made all the changes “suggested” by the official reviewers before publication. Nor has the VOA presented a shred of evidence that it read the regulation in so benign a fashion before this litigation began. To the contrary, the agency issued an internal directive and circulated an annual “reminder” to its employees that they could not publish any material without agency “approval.” Yet, despite the unambiguous language of the regulation, undisputed evidence that the regulation was understood by VOA employees to mean exactly what it said, and the consistent position of the VOA before this litigation that it did require agency approval of employee manuscripts before publication, my colleagues have adopted a contrary reading, offered by the agency for the first time during the course of this litigation, in an obvious attempt to save the regulation from a slam-dunk finding of unconstitutionality.

*1444 But even if the majority could distort the regulation’s plain meaning and transform the proverbial sow’s ear into a silk purse, by ruling that the regulation only authorizes review and advice, the magic would be for nought since, in my view, the regulation would still violate the First Amendment. The courts have consistently held that regulations which burden — even if they do not completely restrict — employees’ speech nonetheless may run afoul of the Constitution. See, e.g., United States v. National Treasury Employees Union, — U.S. -, 115 S.Ct. 1003 , 130 L.Ed.2d 964 (1995) (“NTEU’); Sanjour v. EPA 56 F.3d 85 (D.C.Cir.1995) (en banc). In those cases where the government restricts the speech of its employees, it must show that the harms from reducing employees’ speech are outweighed by the government’s interest in efficiently carrying out its mission by minimizing harms that “are real, not merely conjectural.” NTEU, — U.S. at -, 115 S.Ct. at 1017 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. -, -, 114 S.Ct. 2445, 2450 , 129 L.Ed.2d 497 (1994) (Kennedy, J., plurality)).

Here, the government has offered us no more than a few vague statements about speculative damage to the foreign relations of the United States to justify a formidable restriction on its employees’ speech. With the possible exception of review for the inadvertent disclosure of classified information, the VOA has failed to meet its burden of showing harms that “are real, not merely conjectural,” because the alleged harms do not implicate the interests of the VOA as an employer in carrying out its operational mission. On the other hand, even as (mis)construed by the majority, the regulation significantly chills free speech by requiring the submission of all employee-written articles on subjects of “official concern” for prepublication review and critique, thus increasing the likelihood of subsequent sanctions for any non-redacted publication, and “inducing excessive caution in the speaker.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 , 93 S.Ct. 2553, 2561 , 37 L.Ed.2d 669 (1973). Under either the majority’s highly questionable interpretation of the regulation, or the ordinary reading anyone outside this litigation would give it, the regulation is unconstitutional.

A. Interpreting the FAM regulation

The first question in this case is whether the FAM regulation authorizes the government to prohibit the publication of offensive materials, i.e., to say that material may not be published and to punish an employee if such prohibition is defied, or whether it merely authorizes the VOA to review publications and make comments or suggestions to the author about any objectionable content. My colleagues concede that if the regulation allowed the government to punish employees for publishing over agency objections, it “would raise serious constitutional issues,” Majority opinion (“Maj. op.”) at 1435, a conclusion mandated by our prior declaration in McGehee v. Casey, 718 F.2d 1137, 1141 (D.C.Cir.1983): “The government has no legitimate interest in censoring unclassified materials.” The only possible way out of this precedential corner for the agency and my colleagues is to construe this regulation as authorizing the agency only to review publications and make non-binding suggestions, while allowing the employee to publish over agency objections (with the risk of post-publication sanctions based on the material’s content, but without the possibility of discipline merely for defying the censor’s recommendations).

Predictably, the majority reads the regulation precisely this way. Relying on the canon that “[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score,” my colleagues conclude that the regulation permits the government only to offer advice, not to threaten discipline for publication in the event the advice is rejected. See Maj. op. at 1436 (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401 , 36 S.Ct. 658, 659 , 60 L.Ed. 1061 (1916)).

I strongly disagree with my colleagues’ interpretation of the regulation. Like them, I have no desire to seek out constitutional infirmities in any governmental regulations. But there is a limit. The procrustean interpretation advanced by the majority runs *1445 completely counter to the text and plain meaning of the regulation as well as the interpretation of the regulation advanced by the agency (right up until this litigation), and the understanding of the regulation by VOA employees. Their revisionist interpretation of this regulation is a semantic wonder.

1. The plain meaning of the regulation

We are all familiar with the time-honored canon of construing statutes so as to avoid constitutional difficulties. But even under this canon, we must give the text a “reasonable construction.” Hooper v. California, 155 U.S. 648, 657 , 15 S.Ct. 207, 211 , 39 L.Ed. 297 (1895). Much as we might like to avoid constitutional issues, judges cannot stretch the words of a statute to the point of “disingenuous evasion.” Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 , 53 S.Ct. 620, 622 , 77 L.Ed. 1265 (1933). I repeat here the key provisions at issue to put in high relief the absurdity of the “review and advice” interpretation the majority advances.

Section 628.2, entitled “General Policy and Procedures,” provides:

a____ All speaking, writing, and teaching materials which may reasonably be interpreted as relating to the current responsibilities, programs, or operations of any employee’s agency or to current U.S. foreign policies, or which reasonably may be expected to affect the foreign relations of the Untied States are of official concern and shall be submitted, as provided in the following pertinent sections, for clearance by the employee’s agency, whether the employee is acting officially or privately, b. No employee shall publish any material of official concern under paragraph a until it has been cleared. The purpose of this clearance requirement is to substitute the agency’s institutional judgment for the employee’s judgment when the question involved concerns either the release or accuracy of information concerning the employee’s agency’s responsibilities or what conclusions should be drawn from such information....

c. Clearance will not be granted until all classified material and all material of official concern under paragraph a which is inaccurate, inconsistent with current foreign policy, or can reasonably be expected to affect adversely U.S. foreign relations, has been deleted from the proposed speaking, writing, or teaching material.

The regulation indisputably provides: (a) All materials relating to current agency programs or U.S. foreign policy “shall be submitted ... for clearance;” (b) No material may be published “until it has been cleared;” and (c) “Clearance will not be granted” until the employee has deleted the objectionable material. The only conclusion to be drawn from (a)-(c) is that if the employee publishes material of “official concern” without prior agency approval she has violated agency regulations and can expect to be punished.

The majority nonetheless says these provisions are “not entirely clear,” and goes on to construe them in a way that would require the agency to tell an employee her material “is inaccurate, inconsistent with current foreign policy, or can reasonably be expected to affect adversely U.S. foreign relations,” but that she may publish it anyway, although she may later be disciplined for it. This would be true, of course, only if the regulation is construed to mean: (1) The government may give clearance even if the objectionable material is not deleted; or (2) The employee may publish the material even if she does not receive clearance. Both of these interpretations are flatly contradicted by the text of the regulation. 1

*1446 In order to arrive at their unnatural interpretation of the regulation, my colleagues are forced to read the word “cleared” in § 628.2(b) to mean something entirely different from “clearance” in § 628.2(c). See Maj. op. at 1437. Thus they read “cleared” in subsection (b) to mean publication is prohibited until a manuscript has “been through the review process,” while “clearance” in subsection (e) means “agency approval” will be withheld until the offensive material is deleted. Id. (emphases added).

This reading is of course in derogation of the familiar judicial presumption that “identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 , 52 S.Ct. 607, 609 , 76 L.Ed. 1204 (1932); see also Sullivan v. Stroop, 496 U.S. 478, 484 , 110 S.Ct. 2499, 2504 , 110 L.Ed.2d 438 (1990) (quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 , 106 S.Ct. 1600, 1606 , 89 L.Ed.2d 855 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 , 55 S.Ct. 50, 51 , 79 L.Ed. 211 (1934) (quoting Atlantic Cleaners))). The majority, however, brushes off this line of cases, saying that “[ljike all rules of statutory construction ... this one is defeasible.” Maj. op. at 1437.

The Supreme Court in Atlantic Cleaners, however, identified only three situations in which the same-word same-meaning presumption would not apply: “[w]here the subjeet matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another....” 286 U.S. at 433 , 52 S.Ct. at 609 . None of those rationales applies here. 2 The subject matter of subsections (b) and (c) is identical — both deal with the prepublication clearance requirement. Similarly, there is no difference in the conditions under which the two subsections apply. And finally, unlike the situation in Atlantic Cleaners, the power exercised by the agency in promulgating subsection (b) is exactly the same as the power involved in promulgating subsection (c). 3 This is not a situation involving use of the same word in two different sections of a variegated regulatory statute such as the Sherman Act. Nor is it a situation where the word in question — “clearance”—has a technical, rather than ordinary meaning. Cf. Dewsnup v. Timm, 502 U.S. 410 , 112 S.Ct. 773 , 116 L.Ed.2d 903 (1992) (finding that the term “allowed secured claim” could have a different meaning in different subsections of the Bankruptcy Code). “Clearance” is a commonplace word which can reasonably be expected to retain its ordinary meaning within the confines of one section of one regulation dealing with one procedure, not to take on novel and different meanings from one adjacent subsection to another without any indication to the reader that the agency intended different meanings to prevail. 4

*1447 2. The VOA’s own interpretation

The VOA never suggested before this litigation that there was any ambiguity in its prepublication clearance regulation, nor does the majority provide any such evidence as a launching-pad for its own latter-day interpretation. To the contrary, in an internal directive issued in 1986, two years before this litigation originated, the VOA said:

An employee must obtain specific advance approval before engaging in speaking, writing, or teaching on subject matter of official concern; ... Approval will not be granted if the speech, written product, or course contains classified material or material of official concern which is inaccurate, incompatible with current U.S. foreign policy, or can reasonably be expected to affect U.S. foreign policy adversely.

VOA Directive D-1731A, reprinted in App. 74 (emphasis added). This directive could not be more unqualified on the point: getting clearance from the agency requires getting its approval before publication. Thus the regulation says “[n]o employee shall publish any material of official concern under paragraph a until it has been cleared,” while the complementing directive says “[a]n employee must obtain specific advance approval.” Similarly, the regulation says “Clearance will not be granted ..while the directive says “Approval will not be granted. ...” 5 The VOA’s pre-litigation interpretation, as expressed in the directive, is altogether consistent with the dictionary definition of “clearance” as “approval or certification as clear of objection ... permission to proceed without objection,” Webster’s Third New International Dictionary 420 (1968), and is a much more natural reading than the majority’s construction that “until it has been cleared” means “until it has been through the clearance process,” whatever the outcome. 6

My colleagues admit, “[i]t is true that the government’s procedural interpretation of the regulation was advanced only in this litigation, and that VOA had in fact adopted an alternative interpretation in an internal directive.” Maj. op. at 1438. This is an all-time understatement, for the directive offered not an alternative interpretation, but a completely opposite interpretation from the position now advanced by the VOA. Nor is there any question here that the VOA previously represented that its directive — signed by Director Richard Carlson — was the official policy of the agency. Indeed, when Weaver was admonished for failure to comply with agency regulations, the VOA cited not only her violation of the FAM regulation, but her violation of the directive.’ 7

Until today, I thought it clearly established in law that a person whose behavior is being regulated is entitled to rely on the representations made by the agency as to what the regulation means. See Cox v. Louisiana, 379 U.S. 559, 568-69 , 85 S.Ct. 476, 483 , 13 L.Ed.2d 487 (1965) (individuals would “justifiably tend to rely on ... [an] administrative *1448 interpretation of how ‘near’ the courthouse a particular demonstration might take place”); Omnipoint Corp. v. FCC, 78 F.3d 620, 636 (D.C.Cir.1996) (elimination of provision “would have harmed many of the minority-owned businesses that had been relying upon the rule”); International Union, United Automobile, Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 248 (D.C.Cir.1986) (“employers will justifiably rely on the Department’s interpretation”). Apparently, the new law of this circuit is that employees are expected to disregard the plain language of regulations as well as the agency’s own directives, and instead anticipate that the agency may take a 180-degree different position when called to task in court. That is just plain wrong, and cannot be the law.

Once an agency has told its employees that they cannot publish their material until it has been approved, and has in effect coerced them into changing their publications over the years to satisfy “official” concerns, it is fundamentally unfair to let the agency invoke a canon of statutory construction designed to avoid constitutional issues in order to sanitize the unconstitutional practice they have been engaged in. Here the past practice of the VOA and the text of the regulation reveal the burden on employees “too distinctly to permit us to ignore it.” Moore Ice Cream, 289 U.S. at 379 , 53 S.Ct. at 622 .

Justice O’Connor has pointed out, “even such an important canon of statutory construction as that favoring the avoidance of serious constitutional questions does not always carry the day.” Chitieirez de Martinez v. Lamagno , — U.S. -, -, 115 S.Ct. 2227, 2238 , 132 L.Ed.2d 375 (1995) (O’Con-nor, J., concurring). In this case, using the canon to validate a deathbed conversion when the agency is finally called to account by an employee would completely pervert the function of judicial review. Our government must be accountable to its citizens, and it is antithetical to that principle to allow an agency which has maintained an unconstitutional regulation on the books for years and has repeatedly enforced it against its employees, to escape all responsibility by saying, “we’re sorry; we won’t do that any more.” 8

As my colleagues would have it, however, so long as the regulation is ultimately given a judicial construction that is arguably constitutional, no harm has been done. Not so. The harm consists in the chill to free speech from employees who have in the past and may in the future reasonably believe the regulation requires them to make changes in their manuscripts to gain “clearance.” As the VOA candidly admits, “[t]o the best of our recollection, no VOA employee has refused to make changes.... ” Coonrod Affidavit at 2, reprinted in App. 67. What better evidence could there be that employees for years have believed they were required to make the “suggested” changes than the fact that every single one complied? Indeed, if there had really been any ambiguity in the regulation as to an employee’s freedom to publish manuscripts over the agency’s disapproval, that ambiguity would have rendered it just as dangerous to First Amendment freedoms as a regulation which banned publication outright. The ambiguity — as this case sadly illustrates — would allow the agency to roar like a lion before its employees, and effectively censor the publication of materials it disfavors, yet retreat like a lamb when challenged in court. Ambiguous regulations which affect basic freedoms need to be rewritten, not reinterpreted.

The majority’s approach, which in essence rewards the agency for the alleged ambiguity in its regulation, is directly contrary to the Supreme Court’s holding in Keyishian v. Board of Regents, 385 U.S. 589 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967), where the Court *1449 struck down New York’s teacher loyalty laws and regulations. In that case, the words “treasonable” and “seditious” were undefined, but the Supreme Court rejected the approach of giving those words the most benign possible reading, noting instead the pervasive in terrorem effects on the teachers occasioned by the laws. The Court said:

When one must guess what conduct or utterance may lose him his position, one necessarily will “steer far wider of the unlawful zone.... ” For “[t]he threat of sanctions may deter ... almost as potently as the actual application of sanctions.” The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.

385 U.S. at 589 , 87 S.Ct. at 675 (quoting Speiser v. Randall, 357 U.S. 513, 526 , 78 S.Ct. 1332, 1342 , 2 L.Ed.2d 1460 (1958); NAACP v. Button, 371 U.S. 415, 433 , 83 S.Ct. 328, 338 , 9 L.Ed.2d 405 (1963)). Just so here.

At the end of the day, the majority’s reading so breathtakingly departs from the text of the regulation that no canon of construction can justify it. It would of course be a bit easier to defend the regulation if it only authorized review and advice. But as a court we must take regulations as we find them, and as they are plausibly read by those subject to them. It is not our proper function to “torture one poor word ten thousand ways” to save the agency’s skin. John Dryden, Mac Flecknoe, Line 210, reprinted in Bartlett’s Familiar Quotations 369 (14th ed.1973).

B. The Constitutionality of the FAM Regulation

Even if the majority’s reading of the regulation were legitimate, its interpretation would not resolve the serious constitutional issues raised by so broad a prepublication clearance requirement. Assuming that the VO A forever after adhered to the “review and advice” interpretation it has advanced in this litigation, I still do not think that the regulation would pass constitutional scrutiny.

1. The Pickering/NTEU balancing test

This court, sitting en banc, recently had the opportunity to discuss at length the test to be applied to regulations governing the non-official speech of government employees. Sanjour v. EPA, 56 F.3d at 85 . Provided that the speech at issue is on “matters of public concern,” Connick v. Myers, 461 U.S. 138, 145 , 103 S.Ct. 1684, 1689 , 75 L.Ed.2d 708 (1983), we apply the “Pickering/NTEU” test to any significant restraint the government places on it:

The government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the government.

NTEU, — U.S. at -, 115 S.Ct. at 1014 (quoting Pickering v. Board of Education, 391 U.S. 563, 571 , 88 S.Ct. 1731, 1736 , 20 L.Ed.2d 811 (1968)).

The duty of the courts, therefore, is to ensure that there is a proper balance between “the full protection of speech upon issues of public concern” and the “practical realities involved in the administration of a government office.” Connick v. Myers, 461 U.S. at 154 , 103 S.Ct. at 1694 . Although courts consistently have held that the government may regulate the speech of its employees more stringently than that of the general public, they have not always made explicit the reasons for this difference. Thus the Supreme Court asked rhetorically in Waters v. Churchill, — U.S. -, -, 114 S.Ct. 1878, 1886 , 128 L.Ed.2d 686 (1994): “What is it about the government’s role as employer that gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large?” This is the answer the Court gave:

[T]he extra power the government has in this area comes from the nature of the government’s mission as an employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively as possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to *1450 do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.... The key to First Amendment analysis of government employment decisions, then, is this: the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.

— U.S. at - - -, 114 S.Ct. at 1887-88 (emphasis added).

This observation, in my opinion, is the key element ignored by the majority in its constitutional analysis. The government’s enhanced power to regulate the speech of its employees arises not from the governmént’s interests in avoiding embarrassment to foreign governments, or generalized harm to the United States’ foreign policy interests, but only from its interests as an employer in “doing particular tasks ... as effectively as possible.” Id.

In the case of a government agency charged with conducting our foreign affairs, the agency’s interests in carrying out its mission may well overlap with the foreign policy interests of the United States. No one would quarrel with the dismissal of an Undersecretary of State who wrote an article critical of the Secretary and the government’s foreign policy. But the dismissal would be warranted not because of harm to the United States’ foreign policy interests per se, but because in this case, it would interfere with the effective operation of the State Department. As the Court said in Waters , “The reason the governor may ... fire the deputy is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor’s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively.” — U.S. at -, 114 S.Ct. at 1888.

Thus the mere invocation of “foreign relations” has no talismanic significance in First Amendment jurisprudence. When an agency engaged in foreign relations wishes to justify limiting its employees’ speech it must do so in light of the effective performance of its particular mission, just as an agency charged with protecting the environment can regulate the speech of its employees only if it interferes with that agency’s conservationist mission. It is not sufficient for the government simply to say that every criticism of its foreign policy leadership by an employee will undermine its “important mission” or its goals of “efficiency.” 9 Rather, the government must specifically show why speech-restricting regulations are necessary for the efficient conduct of its mission. 10

Thus in Snepp v. United States, 444 U.S. 507 , 100 S.Ct. 763 , 62 L.Ed.2d 704 (1980) (per curiam), the Supreme Court upheld the validity of a written agreement by a former CIA agent requiring him to submit all CIA-related writings for prepublication clearance by the agency, a requirement designed to ensure the protection of classified information. In its ruling, the Court took pains to point out: “Undisputed evidence in this ease shows *1451 that a CIA agent’s violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA’s ability to perform its stahitory duties.” 444 U.S. at 512 , 100 S.Ct. at 767 (emphasis added). The basis for that finding included evidence that “sources” had discontinued working with the CIA after Snepp had published his book, citing fear that the CIA could not effectively keep their identities secret. Id. at 512-13 , 100 S.Ct. at 766-67 . Relying on Snepp , our court later approved a CIA “secrecy agreement” requiring clearance of all employee publications containing classified information. McGehee v. Casey, 718 F.2d at 1147 . See also United States v. Marchetti 466 F.2d 1309, 1316 (4th Cir.) (CIA secrecy agreements “are entirely appropriate to a program in implementation of the congressional direction of secrecy”), cert. denied, 409 U.S. 1063 , 93 S.Ct. 553 , 34 L.Ed.2d 516 (1972). These cases all held that the CIA’s interests in operating a secret intelligence-gathering agency, relying on an extensive network of informants, justified the broad prepublication clearance regulation to protect against disclosure of classified national security information and sources. Similarly, in Brown v. Glines, 444 U.S. 348 , 100 S.Ct. 594 , 62 L.Ed.2d 540 (1980), the Court upheld an Air Force regulation prohibiting servicemembers from soliciting signatures on petitions without their commander’s approval, on the basis of the “ ‘different character of the military community and of the military mission ... [with its] overriding demands of discipline and duty.’ ” Id. at 354 , 100 S.Ct. at 599 (quoting Parker v. Levy, 417 U.S. 733, 744, 758 , 94 S.Ct. 2547, 2556, 2563 , 41 L.Ed.2d 439 (1974)).

In Snepp and its progeny as well as in Brown , the governmental interests implicated by the prepublication clearance requirements were clearly articulated and strong. The Director of Central Intelligence, for example, had a specific statutory mandate to “protect[] intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403 (d)(3). Obviously, any disclosure of classified information “including information regarding intelligence sources and methods,” Snepp, 444 U.S. at 511 , 100 S.Ct. at 766 , inadvertent or not, would directly and materially affect this mission. As the Court said, “[w]hen a former agent relies on his own judgment about what information is detrimental, he may reveal information that the CIA — with its broader understanding of what may expose classified information and confidential sources — could have identified as harmful.” Id. at 512 , 100 S.Ct. at 766.

Thus as a general principle, government review for classified information by agencies like the CIA does not violate the First Amendment. The VOA, however, has not convincingly demonstrated that it needs to conduct such review in the case of all its employees. The VOA is not an intelligence-gathering agency. Its mission is to distribute public information to the rest of the world, and it is required by its charter to adhere to journalistic principles, not those of spycraft. 11 Weaver, for her part, has only a “non-critical confidential” clearance, and her work consists of digesting public news information for re-broadcast. She says she has never encountered any classified information in her time at VOA, and according to her affidavit, at the time this litigation commenced the VOA operated out of a building shared with the Department of Health and Human Services at which employees did not even regularly have to present identification *1452 cards. Although the record is not at all clear on the point, I seriously question whether the government has demonstrated its need to review for classified information for all VOA employees.

But even if it had, that justification would not give it the right “to substitute the agency’s institutional judgment for the employee’s judgment when the question involved concerns either the release or accuracy of information concerning the employee’s agency’s responsibilities or what conclusions should be drawn from such information.” 3 FAM § 628.2(b). This sweeping prepublication review based on the manuscript’s content (and the author’s viewpoint and “conclusions”) goes far beyond review for classified information, and is not justified by anything in Snepp or any other case.

2. The Harms Here

The Supreme Court has said:

When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.

NTEU, — U.S. at - -, 115 S.Ct. at 1017 (quoting Turner Broadcasting System, Inc., v. FCC , — U.S. at -, 114 S.Ct. at 2470). And we must “limit our inquiry to the ‘interests the state itself asserts.’ ” Sanjour, 56 F.3d at 96 (quoting Edenfield v. Fane, 507 U.S. 761, 768 , 113 S.Ct. 1792, 1798 , 123 L.Ed.2d 543 (1993)). In its brief, the government offered the following justification for the prepublication clearance regime:

The regulations serve a significant governmental interest unrelated to the suppression of speech. Substantial foreign policy and national security interests support the prepublication regulations. One of the paramount purposes of the regulation is to prevent the unknowing disclosure or dissemination of classified information which could harm the vital security interests of the United States____ It is also important that the Voice of America, as is succinctly expressed in its charter, is apolitical. A fundamental feature of the important foreign policy objectives it serves for the United States is to report to the people of other nations in a manner that is truthful, objective, reliable, and nonpolitical. The insertion of VOA or its employees into the press or public debate on a freelance -basis on sensitive matters of security or foreign relations could threaten the basic purposes of VOA. Such activity could jeopardize security, disrupt foreign relations, and impair the important mission of the Agency.

Brief for Appellee at 18-19. 12

Aside from preventing the disclosure of classified information — which might, if the VOA were to adduce convincing evidence of its need, justify a narrow review — the principal harm the agency posits is that any VOA employee, from the secretary pool on up to director, proffering any facts, classified or not, or drawing any conclusions from such facts that do not represent the agency’s official version on any matter affecting foreign relations, presents a potential danger to the agency’s mission. The agency is saying in effect that to perform its mission efficiently it must exercise total control over all public speech of its employees in the foreign policy arena. This is a broad definition of “efficiency” indeed, which transcends all limits derived from prior Supreme Court doctrine on government employee speech.

The Supreme Court has recognized that “[g]overnment employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.” Waters , — U.S. at -, 114 S.Ct. at 1887. Yet the VOA fears “the insertion of VOA or its employees into the press or public debate on *1453 a freelance basis____” Brief for Appellee at 19. The notion that an article by a part-time employee in the Columbia Journalism Review containing not a shred of classified information could somehow “jeopardize security” or “disrupt foreign relations” simply has no support in this record.

Obviously it is in the nature of all prior restraints such as licensing and prepublieation review that it will be harder for the government to prove the existence of specific harms from all — or even any sizeable number of publications encompassed by the regulation. The breadth of a regulation like this will inevitably restrict much, much more speech than could possibly present a risk of harm to the government’s legitimate interests. That is precisely why any such prepublication review must have a narrow and well-justified objective. That is also why punishment after the fact — when the precise harm can be identified — is far preferable, with the exception of those rare circumstances (such as the disclosure of classified information or the exposure of government sources) where the harm is grave and irreparable.

The harms posited by the VOA do not even come close to those identified by the CIA in Snepp and McGehee . How, for example, will improper “conclusions” drawn by a lower-echelon VOA employee be likely to jeopardize national security? The VOA never tells us. How would foreign relations be disrupted by an employee’s critical evaluation of the VOA’s operations or programs? The VOA cites only to the affidavit of George High, Senior Deputy Assistant of State, who speculates that the FAM regulation offers the agency the chance to take “corrective action” before publication of statements “which would insult or embarrass foreign governments or foreign leaders, adversely affecting the United States’ relations with such government or leader.”

We have previously noted that the concept of matters “affecting foreign relations” is an inherently vague and open-ended one, subject to abuse when it is invoked to restrict freedoms of our citizens or the press. Zweibon v. Mitchell, 516 F.2d 594, 653-54 (D.C.Cir.1975) (en banc) (holding that warrant is required before wiretap is installed on a domestic organization, even if the wiretap is justified in the name of foreign intelligence gathering or national security), cert. denied, 425 U.S. 944 , 96 S.Ct. 1684 , 48 L.Ed.2d 187 (1976). Moreover, “security” is a “broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” New York Times Co. v. United States, 403 U.S. 713, 719 , 91 S.Ct. 2140, 2144 , 29 L.Ed.2d 822 (1971) (Black, J., concurring). 13 In this case, just as in NTEU, “[deferring to the Government’s speculation about the pernicious effects of thousands of articles and speeches yet to be written or delivered would encroach unacceptably on the First Amendment’s protections.” — U.S. at - n.21, 115 S.Ct. at 1018 n.21.

On the other hand, the VOA does have a legitimate interest in remaining “apolitical,” and, as its charter requires, avoiding a perception that it represents “any single segment of society.” Arguably, this interest could be jeopardized if an employee, purporting to speak for the VOA, interjected herself “into the press ... on a freelance basis.” If so, there is an effective, narrow way to deal with that problem — require employees to include a disclaimer statement with any publication of official concern. The FAM regulations do just that, mandating that employees include “a specific statement to the effect that the opinions and views expressed are the employee’s own and not necessarily those of the agency.” 3 FAM § 628.5-3. 14 This requirement is sufficiently narrow and is targeted toward a real harm, thus obviating in *1454 large part the need for a total content-based prepublication critique of every employee’s writings. 15 The agency has not explained why this disclaimer, when combined with its unchallenged authority to impose post-publication discipline (consistent with Pickering) in those cases where an employee’s writing demonstrably disrupts the agency’s operations, would fail to protect its “efficiency” interests.

3. The burdens on speech

Because the government has shown no legitimate interests, “efficiency” or otherwise, to justify this review, even a mild intrusion would tip the balance under Pickering/NTEU toward a finding of unconstitutionality. But this regulation, however construed, represents far more than the “mild[ ] deterrent” the majority says it is. Maj. op. at 1441.

In the first place, as a widespread and general restriction on speech, the regulation gives rise to “serious concerns,” NTEU, — U.S. at -, 115 S.Ct. at 1014, and “the Government’s burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action.” Id. In addition, this regulation is highly suspect because, “unlike an adverse action taken in response to actual speech, this ban chills potential speech before it happens.” Id. (emphasis added). As the Supreme Court said in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 , 95 S.Ct. 1239 , 43 L.Ed.2d 448 (1975), where it struck down a city’s attempt to ban the musical “Hair,”

The presumption of prior restraint is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.

Id. at 558-59 , 95 S.Ct. at 1246 .

My colleagues, however, see no harm in the fact that the government can “informally pressure employees to make the desired changes.” Maj. op. at 1441. They explain:

But if publication without the change could be punished after the fact under Pickering , then presumably the employee is not made worse off by having advance notice of the government’s view. If, on the other hand, publication of the unaltered material cannot constitutionally be punished, then the employee has nothing to fear by going-ahead.

Id.

The majority “presum[es]” that the government is equally likely to punish materials it disapproves of with or without a prepublication review process — an assumption I believe is not warranted by experience or common sense. Let us unbundle the majority’s interpretation and look at its practical effects. The employee author must submit all manuscripts to a review process, after which she will be merely “informed” if there is anything in her work which is antithetical to agency policy. The reviewer will basically tell her: “We don’t like part of your article, but go ahead and publish it anyway, and see what happens.” Too much is left unsaid under that scenario for it to be a credible way to run an agency. The author will clearly surmise that if she publishes despite the criticism, the chances are good she will be officially sanctioned post-publication. For by submitting her work to the review, she has alerted the authorities to her offensive publication. The reviewer in turn, by dint of his prepublication determination that her article is offensive, has upped the ante, and increased the chances that he will follow through with a recommendation for sanctions if she publishes without making the changes.

As a practical matter, then, the chances of subsequent punishment are much higher once the agency has identified the material *1455 as objectionable. 16 Just as a child is more likely to be punished after doing something she was specifically told not to, than if she had done it without such warning, it stands to reason that an employee is much more likely to be punished after ignoring the agency’s exhortations. This chill is significant, for “[t]he special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker....” Pittsburgh Press Co., 413 U.S. at 390 , 93 S.Ct. at 2561 .

I would submit that the very purpose of the regulation is to induce “caution in the speaker.” “Slow down,” the employee is being told in so many words. “Think about our important mission here ... and how much you like your job.” The effects are not hard to predict: “It would be a bold ... [employee] who would not stay as far away as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery.” Keyishian, 385 U.S. at 601 , 87 S.Ct. at 683 ; see also NAACP v. Button, 371 U.S. at 433 , 83 S.Ct. at 338 (“The threat of sanctions may deter ... almost as potently as the actual application of sanctions.”). What is the purpose of the official critique unless the “informal pressure” my colleagues acknowledge is supposed to have a chilling effect, forcing the employee to make her decision to publish and/or perish accordingly?

Nor does the fact that the agency might not be able to punish the employee after publication somehow blunt the harmful effect of a mandatory prepublication review. As the majority would have it, even a stern message of disapproval should not deter any employee, if she is secure that she can ultimately survive the Pickering test should the agency sanction her after publication. But what employee could feel safe in predicting ahead of time the outcome of that complex calculus? Apparently, for as long as anyone at VOA remembers, no employee has reached that level of security. “It is no answer to a claim of chilling effect that a court eventually will strike down the government’s abuse of power.” Rafeedie v. INS, 880 F.2d 506 , 530 n. 8 (D.C.Cir.1989) (Ruth B. Ginsburg, J., concurring). For in the words of Justice Marshall:

That this Court will ultimately vindicate an employee if his speech is constitutionally protected is of little consequence — for the value of a sword of Damocles is that it hangs — not that it drops. For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.

Arnett v. Kennedy, 416 U.S. 134, 231 , 94 S.Ct. 1633, 1682 , 40 L.Ed.2d 15 (1974) (Marshall, J., dissenting).

* * *

The net result of this case is that the VOA — for no good reason — has in the past, and will in the future, be allowed to subject its employees to an exceedingly broad prepublication clearance requirement. The essence of the government’s and majority’s position is that this regime is justified because of the risk that a lower echelon, part-time employee who works for an essentially journalistic organization and who has never come into contact with classified information could somehow damage the foreign relations of the United States. I had thought that era well behind us where what is essentially hyperbole about vague and speculative damage to our foreign interests could be used to justify abridgment of our citizens’ freedoms.

The VOA has produced no evidence of any serious evil that would justify a wide-sweeping requirement of prepublication review of all publications by any employee that touch *1456 in any way on foreign affairs or other agency-related matters. Whether rewritten, as I conclude the majority has done, to provide for official reviewers to identity all facts and conclusions the agency finds unacceptable and to “suggest” their deletion but to take no further disciplinary steps until after publication — or as presented in them original form to permit sanctions for failure to delete such material — the regulation violates employees’ free speech guarantees under the First Amendment. The regulation places significant burdens on employees’ expressive freedoms, without any showing that the agency has a need to see and criticize articles in advance of publication in order to conduct its operations efficiently.

The affirmation of such a prepublication clearance procedure based on viewpoint and content goes far beyond any employee restriction previously upheld by this court or the Supreme Court. Only last year, the Supreme Court cautioned:

As Justice Brandéis reminded us, a “reasonable” burden on expression requires a justification far stronger than mere speculation about serious harms. “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women____ To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.”

NTEU, — U.S. at -, 115 S.Ct. at 1017 (quoting Whitney v. California, 274 U.S. 357, 376 , 47 S.Ct. 641, 648 , 71 L.Ed. 1095 (1927) (Brandéis, J., concurring)). This case requires us to rethink that caution now, more than ever.

I respectfully but emphatically dissent.

. The majority acknowledges that § 628.2(a) unambiguously requires employees to submit material to a review process because that subsection says that material "shall be submitted.” Maj. op. at 1436. That much makes sense. But my colleagues insist that § 628.2(b) is ambiguous because "it lacks such requirements concerning the publication of unapproved material.” Id. That is simply not the case. Subsection (b) says, "No employee shall publish any material of official concern under paragraph a until it has been cleared.... ” I see no ambiguity.

The majority also gives short shrift to the second sentence of subsection (b): "The purpose of this clearance requirement is to substitute the agency's institutional judgment for the employee’s judgment ....” (emphasis added). Maj. op. at 1437. In my view, this sentence strongly suggests that these are not suggested changes, but rather that they are mandated.

.The majority offers the following explanation for disregarding the presumption:

In the case of § 628.2, the uncertainty over the government's constitutional power to authorize punishment for publication of material disapproved by the agency, together with the obscurities produced by interpreting the regulation to authorize such punishment, provide a basis for adopting differing interpretations of "cleared” and "clearance" in §§ 628.2b and 628.2c.

Maj. op. at 1437-1438. Neither of those rationales falls within the letter or the spirit of the exceptions articulated in Atlantic Cleaners. Although "uncertainty over the government's constitutional power” may tip the scales in favor of a constitutional reading where ambiguity already exists on the face of a statute, it cannot be used in a boot-strap attempt to create an ambiguity. See Moore Ice Cream, 289 U.S. at 379 , 53 S.Ct. at 622 . Moreover, the majority has identified no real "obscurities” that arise out of giving the words "clearance” and "cleared” the same meaning in both sections.

. In Atlantic Cleaners, the Court held that "trade or commerce” had a different meaning in section 1 of the Sherman Act, which was based on Congress' plenary power to regulate commerce, compared with section 3, which was based on Congress’ authority to enact legislation governing the District of Columbia.

. The majority wants subsection (b), which currently reads, "No employee shall publish any material of official concern under paragraph a until it has been cleared " to actually mean "No employee shall publish any material ... until it has been through the review process." If the agency had really intended this meaning it could be expected to use the more natural word "submitted.”

In fact, subsection (a) does say that all materials "shall be submitted ... for clearance....” If *1447 going through the process is all that is required, this word could simply have been repeated in subsection (b), thus rendering it "No employee shall publish any material ... until it has been submitted.” Thus subsection (a), which uses both “submitted” and "clearance" in the same sentence, is further proof that clearance was not intended to mean merely the status of having "been through the review process.”

. The government, perhaps unwittingly, argued in its briefs that the "power that 3 FAM § 628 confides in the agency is that of approval or disapproval of the submitted piece.” Brief for Appellees at 14 (emphasis added).

. The VOA apparently provides an appeals process for denials of clearance:

If final Agency review results in disapproval, the author shall have the opportunity to review this determination with the Director of the Office of Public Liaison and the other reviewing officers, within 5 calendar days of notification of disapproval.

USIA Announcement No. 38 (Feb. 5, 1988), reprinted in App. 82. One might ask why there is any need for such a detailed review process if the agency intends to make only a take-it-or-leave-it suggestion.

.There is a curious aspect to this case involving what constitutes evidence of the current official agency position. Other than the statements of counsel in briefs and arguments, the only suggestion that the agency will not punish employees for publishing unapproved materials is the eight-year old affidavit of Robert T. Coonrod, the Executive Assistant to the Director of VOA and Acting Director of VOA’s Office of External Affairs, prepared in the early stages of this protracted litigation. We do not know whether Coonrod is still at VOA or whether the policy he discusses is still in place.

. If the majority's position holds, the employees of VOA will not even have received a clear statement that the agency's past practice was unconstitutional. Moreover, the problem of the validity of this regulation may well re-occur. The FAM regulations apply not just to the VOA, but also the USAID and State Department. The majority cites no case holding that "the interpretation proposed by counsel” during litigation can bind an agency. Maj. op. at 1438. Indeed, our precedents appear to point in a contrary direction. See Florida Power & Light Company v. FERC, 85 F.3d 684, 688 (D.C.Cir., 1996) ("the agency runs this regulatory program, not its lawyers; parties are entitled to the agency's analysis of its proposal, not post hoc salvage operations of counsel.”) (Williams, J.).

. In past eras, of course, government was permitted to restrict speech on this basis. It used to be the law that:

[wjords spoken in derogation of a ... great officer of the realm, which are called scandalum magnatum, are held to be ... heinous; and, ... when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed ... on behalf of the crown, to inflict the punishment of imprisonment on the slanderer.

3 William Blackstone, Commentaries on the Law of England 123-24 (1768). As the Eighth Circuit succinctly noted, however, since that time, "[a] revolution intervened.” Casey v. City of Cabool, 12 F.3d 799, 802 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 325 , 130 L.Ed.2d 285 (1994).

. The same principles apply to punishment for speech. Thus, for example, it is highly doubtful that a career employee of the Department of Labor could be fired for criticizing the President of the United States on grounds unrelated to labor policy. In such a case, the employee/employer relationship would simply be too attenuated, and the employee's rights as a citizen would dominate. The same could not be said for the White House Chief of Staff, however. On the other hand, if the same Department of Labor employee publicly criticized her direct supervisor, she might well be subject to discipline under the Pickering test, for such comments would directly affect the government’s interests as employer.

. The VOA’s charter provides:

The long-range interests of the United States are served by communicating directly with the people of the world by radio. To be effective, the Voice of America (the Broadcasting Service of the United States Information Agency) must win the attention and respect of listeners. These principles will therefore govern Voice of America (VOA) broadcasts:

VOA will serve as a consistently reliable and authoritative source of news. VOA news will be accurate, objective and comprehensive.

VOA will represent America, not any single segment of American society, and will therefore present a balanced and comprehensive projection of American thought and institutions.

VOA will present the policies of the United States clearly and effectively, and will also present responsible discussion and opinion on those policies.

Pub.L. No. 94-350 (1976).

. The government’s justifications here are offered for the first lime in this litigation. In NTEU, by contrast, Congress had enacted an honoraria ban in response to specific harms identified by the Quadrennial Commission on Executive, Legislative, and Judicial Salaries, and the President's Commission on Federal Ethics Law Reform. — U.S. at -, 115 S.Ct. at 1008-09.

. The only case cited by the government for the proposition that foreign affairs (as opposed to national security) issues are entitled to any sort of special consideration is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952), a case having nothing to do with the First Amendment.

. Weaver did not comply with this requirement and does not dispute here the government’s authority to discipline her for this failure.

. In Sanjour we said: "It is perhaps the most fundamental principle of First Amendment jurisprudence that the government may not regulate speech on the ground that it expresses a dissenting viewpoint.” 56 F.3d at 85 . Why then should the government be allowed to examine all employees’ manuscripts before publication on the *1455 grounds that they might express a dissenting viewpoint?

. Weaver, for example, accused the VOA of sending coded messages to Solidarity activists in Poland via Rod Stewart songs, and criticized the VOA director Charles Wick for using VOA resources for self-glorification, pointing out that the agency had filed nine reports on his activities in the previous year including extensive coverage of a banquet at which he was honored, which provoked the comment from one of her sources: "Is this international news?”

If Weaver had been warned that these statements were “inaccurate” or drew "improper conclusions" is it reasonable that the VOA could have declined to sanction their publication later without losing face?