Petition for Writ of Certiorari — Timothy H. Edgar, et al., Petitioners v. Avril D. Haines, Director of National Intelligence, et al.
Supreme Court briefNov 22, 2021
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No. 21-_____
IN THE
Supreme Court of the United States
TIMOTHY H. EDGAR, ET AL.,
Petitioners,
v.
AVRIL D. HAINES, IN HER OFFICIAL CAPACITY AS
DIRECTOR OF NATIONAL INTELLIGENCE, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
Brett Max Kaufman
Jameel Jaffer
Vera Eidelman
Counsel of Record
Shreya Tewari
Alex Abdo
Ben Wizner
Ramya Krishnan
American Civil Liberties William Hughes
Union Foundation
Knight First Amendment
125 Broad Street,
Institute at Columbia
18th Floor
University
New York, NY 10004
475 Riverside Drive, Ste. 302
New York, NY 10115
(646) 745-8500
jameel.jaffer@
knightcolumbia.org
(Counsel continued on inside cover)
David D. Cole
American Civil Liberties
Union Foundation
915 15th Street, NW
Washington, DC 20005
David R. Rocah
American Civil Liberties
Union Foundation of
Maryland
3600 Clipper Mill Road,
Suite 350
Baltimore, MD 21211
QUESTIONS PRESENTED
All eighteen U.S. intelligence agencies, including
the four that are party to this suit, impose lifetime
“prepublication review” obligations on former
employees, prohibiting them from writing or
speaking publicly without first obtaining the
government’s approval. The agencies’ prepublication
review regimes have expanded dramatically since
this Court decided Snepp v. United States, 444 U.S.
507 (1980) (per curiam), which held, in a cursory
footnote, that the First Amendment did not preclude
the Central Intelligence Agency from imposing a
prepublication review obligation on a former CIA
officer. The lower courts, including the Fourth
Circuit in this case, have understood Snepp to mean
that agencies’ prepublication review regimes are
exempt from meaningful scrutiny under the First
Amendment. As a result, Petitioners here, and
millions of former public servants like them, are
subject to an onerous and far-reaching system of
prior restraint that lacks the substantive and
procedural safeguards that the Court has insisted on
in all other contexts involving the licensing of
speech. In addition, the public is routinely and
unjustifiably denied access to speech that could
inform public debate about foreign policy, national
security, and war—issues as to which public opinion
plays an especially important role in checking
government power.
i
The questions presented are:
1. Whether Snepp should be overruled because it
applied mere “reasonableness” scrutiny to an
agency’s prepublication review regime, and failed to
require the substantive and procedural safeguards
the Court has demanded in all other contexts
involving the licensing of speech.
2. Alternatively, whether Snepp should be
clarified because lower courts, including the Fourth
Circuit in this case, have read it to preclude any
meaningful scrutiny of prepublication review
regimes under the First Amendment.
3. Whether Respondents’ prepublication review
regimes, which lack essential substantive and
procedural safeguards, are constitutional.
ii
PARTIES TO THE PROCEEDINGS
Petitioners in this Court (appellants in the court
of appeals) are Timothy H. Edgar, Richard H.
Immerman, Melvin A. Goodman, Anuradha
Bhagwati, and Mark Fallon.
Respondents in this Court (appellees in the court
of appeals) are Avril D. Haines, in her official
capacity as Director of National Intelligence;
William J. Burns, in his official capacity as Director
of the Central Intelligence Agency; Lloyd J. Austin,
III, in his official capacity as the Secretary of
Defense; and Paul M. Nakasone, in his official
capacity as Director of the National Security Agency.
RELATED PROCEEDINGS
There are no directly related proceedings.
iii
TABLE OF CONTENTS
TABLE OF CITED AUTHORITIES ...................... vii
OPINIONS BELOW ................................................. 1
STATEMENT OF JURISDICTION ......................... 1
CONSTITUTIONAL PROVISION
INVOLVED ............................................................... 1
STATEMENT OF THE CASE ................................. 1
I.
II.
Factual Background ................................. 3
A.
The Origins and Growth of
Prepublication Review ................... 3
B.
The Challenged
Prepublication Review
Regimes .......................................... 6
C.
The Petitioners............................... 8
Proceedings Below .................................. 11
REASONS FOR GRANTING THE
PETITION ............................................................... 12
I.
The permissible scope of
Respondents’ prepublication review
regimes is a matter of
extraordinary importance. ..................... 12
iv
II.
A.
Respondents’ prepublication
review regimes subject
Petitioners and millions of
others to an unnecessarily
onerous and far-reaching
system of official censorship. ....... 13
B.
The challenged systems
deprive the public of speech
by former public servants,
imposing an intolerable cost
on public debate. .......................... 16
The Court should overrule Snepp. ......... 18
A.
Snepp is inconsistent with
the Court’s prior restraint
cases.............................................. 21
1.
This Court has long
imposed rigorous
procedural and
substantive
requirements on
government licensing
schemes.............................. 21
2.
Respondents’
prepublication review
regimes lack the
substantive and
procedural protections
required of licensing
schemes.............................. 24
v
B.
Snepp is inconsistent with
the Court’s recent employeespeech jurisprudence. .................. 26
C.
Snepp’s procedural
irregularities are an
additional reason to revisit
the case. ........................................ 29
III.
In the alternative, the Court
should clarify that Snepp does not
preclude meaningful scrutiny of
Respondents’ prepublication review
regimes. ................................................... 31
IV.
This case provides an optimal
vehicle for revisiting Snepp and
clarifying the application of the
First Amendment to prepublication
review regimes. ....................................... 37
CONCLUSION........................................................ 38
APPENDIX A: Opinion of the United States
Court of Appeals for the Fourth Circuit
(June 23, 2021) .................................................. 1a
APPENDIX B: Memorandum Opinion of the
United States District Court for the
District of Maryland (April 16, 2020) ............. 39a
APPENDIX C: Order of the United States
District Court for the District of
Maryland (May 7, 2020) ................................ 113a
vi
TABLE OF CITED AUTHORITIES
Cases
Alexander v. United States, 509 U.S.
544 (1993) .................................................... 21, 22
Bantam Books, Inc. v. Sullivan, 372
U.S. 58 (1963) .................................................... 22
Barone v. City of Springfield, 902 F.3d
1091 (9th Cir. 2018)........................................... 32
Edelman v. Jordan, 415 U.S. 651
(1974) ................................................................. 30
Forsyth Cnty. v. Nat’list Movement,
505 U.S. 123 (1992) ........................................... 25
Freedman v. Maryland, 380 U.S. 51
(1965) ..................................................... 21, 23, 25
Harman v. City of N.Y., 140 F.3d 111
(2d Cir. 1998) ..................................................... 28
Hohn v. United States, 524 U.S. 236
(1998) ........................................................... 29, 30
Janus v. Am. Fed’n of State, Cnty., &
Mun. Emps., Council 31, 138 S. Ct.
2448 (2018) .................................................. 21, 28
Lane v. Franks, 573 U.S. 228 (2014) ................ 16, 17
vii
Mansoor v. Trank, 319 F.3d 133 (4th
Cir. 2003) ........................................................... 32
McCutcheon v. FEC, 572 U.S. 185
(2014) ................................................................. 30
McGehee v. Casey, 718 F.2d 1137 (D.C.
Cir. 1983) ........................................................... 32
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981) ........................................... 30
N.Y. Times Co. v. United States, 403
U.S. 713 (1971) ............................................ 16, 23
Pickering v. Bd. of Educ., 391 U.S. 563
(1968) ........................................................... 12, 28
Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Rel., 413 U.S.
376 (1973) .......................................................... 21
Sanjour v. EPA, 56 F.3d 85 (D.C. Cir.
1995) ................................................................... 28
Se. Promotions, Ltd. v. Conrad, 420
U.S. 546 (1975) ............................................ 22, 25
Shuttlesworth v. City of Birmingham,
394 U.S. 147 (1969) ............................... 20, 23, 24
Snepp v. United States, 444 U.S. 507
(1980) ......................................................... passim
viii
United States v. Bolton, No. 1:20-cv01580, 2020 WL 3401940 (D.D.C.
filed June 16, 2020). .......................................... 18
United States v. Nat’l Treasury Emps.
Union, 513 U.S. 454 (1995) ....................... passim
United States v. Snepp, 456 F. Supp.
176 (E.D. Va. 1978) ............................... 19, 34, 36
United States v. Snepp, 595 F.2d 926
(4th Cir. 1979).................................................... 19
Weaver v. U.S. Info. Agency, 87 F.3d
1429 (D.C. Cir. 1996) ............................. 27, 33, 34
Other Authorities
115 Cong. Rec. H3300 (daily ed. May 3,
2017) ..................................................................... 6
115 Cong. Rec. S2750 (daily ed. May 4,
2017) ..................................................................... 6
Inspector General, Central
Intelligence Agency, Prepublication
Review Process 7–8, 11 (Jan. 2017),
https://perma.cc/G5YA-JJHP. ........................... 15
Jack Goldsmith & Oona A. Hathaway,
The Government’s Prepublication
Review Process is Broken, Wash.
Post (Dec. 25, 2015),
https://perma.cc/YBC3-KEZA. ............................ 5
ix
Kevin Casey, Note, Till Death Do Us
Part: Prepublication Review in the
Intelligence Community, 115
Colum. L. Rev. 416 (2015) ................................. 37
Michael S. Schmidt & Katie Benner,
Justice Dept. Ends Criminal
Inquiry and Lawsuit on John
Bolton’s Book, N.Y. Times (June
16, 2021), https://perma.cc/5UA4LBJN .................................................................. 18
x
OPINIONS BELOW
The opinion of the court of appeals (App. 1a) is
reported at Edgar v. Haines, 2 F.4th 298 (4th Cir.
2021). The opinion of the district court granting a
motion to dismiss (App. 39a) is reported at Edgar v.
Coats, 454 F. Supp.3d 502 (D. Md. 2020). The order
of the district court dismissing the case (App. 113a)
is not reported.
STATEMENT OF JURISDICTION
The court of appeals issued its decision on
June 23, 2021 (App. 2a). This Court has jurisdiction
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION
INVOLVED
The First Amendment to the U.S. Constitution
provides that “Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of
the people to peaceably assemble, and to petition the
Government for a redress of grievances.”
STATEMENT OF THE CASE
In Snepp v. United States, 444 U.S. 507 (1980)
(per curiam), this Court upheld the imposition of a
constructive trust on the profits earned by a former
Central Intelligence Agency (“CIA”) officer who had
published a memoir without first submitting it to the
agency for review. In a single, brief footnote, with
virtually no analysis, the Court rejected the officer’s
1
First Amendment objections. Since Snepp,
prepublication review regimes have expanded
dramatically in every respect—in large part because
the lower courts, like the Fourth Circuit in this case,
have understood Snepp to exempt these regimes
from meaningful scrutiny under the First
Amendment. Today, millions of former public
servants are subject to a sprawling system of prior
restraint that lacks any of the substantive and
procedural safeguards that the Court has otherwise
required when the government licenses speech. And
as a result, the public is deprived of the expertise
and insights of former agency employees on matters
of extraordinary public concern.
This case concerns four specific prepublication
review regimes. These regimes subject Petitioners
and other former employees to submission
requirements that are sweeping and vague; invest
agency reviewers with overbroad discretion to
suppress speech; and fail to require agencies to
complete the review of manuscripts within any
specific timeframes. Respondents undoubtedly have
a legitimate interest in preventing Petitioners and
other former employees from disclosing classified
information learned through their public service,
but this interest can, and therefore must, be
accommodated through a more tailored system that
is faithful to First Amendment principles.
The permissible scope of Respondents’
prepublication review regimes is a question of
extraordinary importance. The Court should grant
certiorari to overrule Snepp, which failed to
scrutinize prepublication review as a prior restraint,
2
did not adequately account for former employees’ or
the public’s interest in the speech suppressed by the
system, and is inconsistent with the Court’s more
recent First Amendment jurisprudence. In the
alternative, the Court should grant certiorari to
clarify that Snepp does not foreclose meaningful
judicial scrutiny of the adequacy of a prepublication
review scheme’s substantive and procedural
safeguards.
I.
Factual Background
A.
The Origins and Growth
Prepublication Review
of
The prepublication review system originated in a
set of contractual obligations imposed on a relatively
small number of public servants with access to the
nation’s most sensitive secrets. Compl. ¶ 17. The
CIA appears to have been the first agency to require
its employees to submit their writings for review
before publication. Through the 1950s and 1960s,
the CIA handled prepublication review informally,
as few former employees sought to publish
manuscripts. Id. ¶ 18. This changed in the 1970s, as
the abuses documented by the Church and Pike
Committees spurred many more former employees
to write, often critically, about the agency. Id. In
1976, the CIA established a Publications Review
Board to review manuscripts submitted by current
employees; the next year, its mandate expanded to
cover submissions from former employees as well.
Id.
3
What was once a narrow regime has grown into
a sprawling system of prior restraint that restricts
the speech of millions of people. In Snepp, the Court
affirmed the imposition of a constructive trust on
profits earned by a former CIA officer who had
published a book without submitting it for review.
The unsigned ruling was issued without the benefit
of briefing on the merits or oral argument, and it
drew widespread criticism, in part because it
relegated First Amendment considerations to a
single, cryptic footnote. Id. ¶ 19; 444 U.S. at 509 n.3.
Over the next four decades, agencies interpreted
Snepp as a blank check, establishing and extending
prepublication review regimes without regard to the
First Amendment limits that normally apply to
government schemes that license speech.
Indeed, since Snepp, prepublication review has
expanded on every axis. Each of the nation’s
eighteen intelligence agencies now imposes
prepublication review requirements on at least some
of its former employees. Compl. ¶ 24. Former
employees are subject to these obligations for the
rest of their lives. Id. Agencies also impose these
requirements on more categories of people, including
employees who never had access to classified
information. Id. ¶ 25. Agency regimes have also
become more complex, with most regimes
implemented through a tangle of contracts,
regulations, directives, and policies—a development
that has made it increasingly difficult for former
employees to understand and meet their obligations.
Id. ¶ 27. Today’s prepublication review regimes also
extend to more material, in part because so much
more information is classified. Id. ¶ 26. The CIA
4
received 43 submissions for review in 1977; in 2015,
it received 8,400. Id. ¶ 28. The increase in the
number of manuscripts submitted has led to
substantial delays, with manuscript review now
frequently taking many months or even years. Id.
¶ 29.
The expansion of the prepublication review
system has had far-reaching implications for the free
speech rights of former public employees, including
Petitioners. It has also profoundly limited the
public’s access to their knowledge and expertise,
impoverishing public debate about government
policy. As two prominent law professors aptly put it,
the contemporary prepublication review system is
“racked with pathologies.”1 But this Court’s
summary footnote in Snepp has insulated the
system
from
constitutional
scrutiny
and
disincentivized reform. In 2017, the House and
Senate Intelligence Committees instructed the
Office of the Director of National Intelligence
(“ODNI”) to prepare a new prepublication review
policy for all intelligence agencies within 180 days of
passage of an appropriations bill, directing that the
new policy should “yield timely, reasoned, and
impartial decisions that are subject to appeal,” and
setting out guideposts with respect to which
categories of individuals could be subjected to
prepublication review requirements, what material
they could be required to submit, and what
procedural safeguards should be in place to prevent
1 Jack Goldsmith & Oona A. Hathaway, The Government’s
Prepublication Review Process is Broken, Wash. Post (Dec. 25,
2015), https://perma.cc/YBC3-KEZA.
5
abuse. 115 Cong. Rec. H3300 (daily ed. May 3, 2017);
115 Cong. Rec. S2750 (daily ed. May 4, 2017). Almost
five years later, however, no such policy has been
promulgated. Compl. ¶ 30.
B.
The Challenged
Review Regimes
Prepublication
This suit challenges the prepublication review
regimes of four federal agencies—the ODNI, the
CIA, the Department of Defense (“DOD”), and the
National Security Agency (“NSA”). Although the
regimes differ in some particulars, they have
important characteristics in common.
First,
each
regime
imposes
lifetime
prepublication review obligations on Petitioners and
other former employees, compelling them to submit
their speech for prior government review even
decades after their service has ended. Id. ¶ 24.
Second, these obligations apply to broad
categories of former employees, including some who
never had access to classified information. All
former employees of the CIA, NSA, and ODNI are
subject to a prepublication review obligation. Id.
¶¶ 32, 44, 50. The same is true of all former DOD
employees, including all former active-duty and
reserve service members, regardless of whether they
had access to classified information. Id. ¶ 38.
Third, each regime requires Petitioners and
other former employees to submit for review a
vaguely defined and sweeping range of material,
including material that Respondents have no
6
legitimate interest in reviewing. For example, the
ODNI requires former employees to submit “all
official and non-official information intended for
publication that discusses the ODNI, the IC
[Intelligence Community], or national security.” Id.
¶ 50.
Fourth, each regime vests the agency with
censorship authority over Petitioners’ speech that
extends far beyond classified information. For
example, the DOD allows reviewers to censor not
just classified information but any information that
the DOD deems to “requir[e] protection in the
interest of national security or other legitimate
governmental interest.” App. 9a. The NSA and
ODNI impose no substantive limits at all on the
authority of agency reviewers, affording them
unbridled discretion. Compl. ¶¶ 45, 51.
Fifth, all of the regimes to which Petitioners are
subject lack procedural safeguards the Court has
insisted on in other contexts involving the licensing
of speech. For example, while some of the agencies
state aspirationally that they will try to review
manuscripts within specified time periods, none of
them is legally bound to do so, and in practice they
frequently do not. Id. ¶¶ 36, 42, 48, 54. The CIA’s
own records reveal that the agency expects the
review of books to take “over a year.” Id. ¶ 29. Delays
are often compounded when agencies “refer”
manuscripts to other agencies for review, because
Respondents’ regimes do not specify the terms on
which those inter-agency referrals will be made. Id.
¶¶ 33, 39, 45, 51. In addition, none of the regimes
7
requires the government to initiate judicial review
of’ decisions to restrict speech. Id. ¶¶ 37, 43, 49, 55.
C.
The Petitioners
Petitioners are five former employees of the
ODNI, CIA, and DOD. Melvin A. Goodman spent
forty-two years in government, beginning as a U.S.
Army cryptographer, rising within the CIA from an
analyst to a division chief, and eventually teaching
at the National War College. Id. ¶¶ 81–82. Mark
Fallon worked for more than three decades in the
DOD as an expert on counterintelligence and
counterterrorism. Id. ¶¶ 100–101. Anuradha
Bhagwati served in the U.S. Marine Corps for five
years, including as a platoon commander, and, after
leaving the military, founded the Service Women’s
Action Network. Id. ¶¶ 94–95. Timothy H. Edgar
worked for the ODNI from 2006 to 2013, serving in
several roles, including as the Director of Privacy
and Civil Liberties for the White House National
Security team. Id. ¶ 58. Richard H. Immerman
served from 2007 to 2009 as an Assistant Deputy
Director of National Intelligence and Analytic
Ombudsman for the ODNI. Id. ¶ 69.2
Each of Petitioners is subject to ongoing
prepublication review obligations. Four of them
have submitted materials for review in the past, and
all of them intend to write manuscripts that
The NSA was also named as a defendant because
Mr. Edgar expects that any manuscripts he submits to the
ODNI will be referred to the NSA, as they have been in the
past. Compl. ¶ 65.
2
8
Respondents’ regimes will require them to submit
for review in the future. Id. ¶¶ 61–62, 65, 72–73, 79,
85–87, 93, 97–99, 112–113, 115. Petitioners’
experiences navigating the review process highlight
the defects in Respondents’ regimes.
For example, because of the breadth and
vagueness
of
Respondents’
submission
requirements, Petitioners must submit for review
even manuscripts that are highly unlikely to contain
classified information. Thus, Professor Immerman
was required to submit to the ODNI a book
manuscript surveying the CIA’s history even though
he relied exclusively on declassified and other public
sources. Id. ¶ 73. He was also required to submit
numerous academic syllabi, which similarly relied
entirely on public sources. Id. ¶ 72.
Petitioners have also been compelled to redact
information they learned from public sources after
leaving government service. For example, when
Mr. Goodman submitted a manuscript that
discussed the government’s use of armed drones
overseas, the CIA required him to excise this
discussion from his book even though it was based
entirely on public reports and he had last worked for
the agency in the 1980s, long before the drones had
been developed, and could not possibly have had
access to government secrets on the topic. Id. ¶ 82,
90. And when Professor Immerman submitted his
manuscript about the history of the CIA, the agency
required him to excise citations to news articles as
well as assertions based on public sources
concerning events that occurred long after he left
government service. Id. ¶¶ 73–75.
9
Long delays in the review process have also
required Petitioners to postpone the publication of
manuscripts that were time-sensitive. As described
below, delays in the review of one of his manuscripts
prevented Mr. Fallon from contributing to public
debate about interrogation policy at a time when his
insights would have been especially valuable to the
public. Id. ¶ 111. Similar delays have made it more
difficult for Mr. Edgar and Professor Immerman—
both academics—to participate in scholarly debates.
Id. ¶¶ 66, 80. Delays have also created tensions
between Petitioners and their publishers. Both
Mr. Goodman’s and Mr. Fallon’s publishers
threatened to cancel their book contracts, and
Mr. Fallon’s publisher, frustrated with the long
delays in agency review, told him that working with
former officials was “not worth it.” Id. ¶¶ 89, 112.
In some cases, Petitioners have had to accept
redactions they believed to be illegitimate because
contesting the redactions would have resulted in
further delay and would have compromised
relationships with agency reviewers whom they
could not afford to provoke or offend. For example,
the ODNI demanded that Mr. Edgar redact a
manuscript that was based entirely on unclassified
documents. Id. ¶¶ 62–64. Although the agency had
no legitimate basis for its demand, Mr. Edgar made
the redactions because he feared that contesting
them would cause further delay and compromise his
relationships with the ODNI’s reviewers, making
future reviews even more difficult. Id.
The
uncertainties
prepublication review
associated
with
system have also
10
the
led
Petitioners to censor themselves. Id. ¶¶ 66, 80, 92–
93, 112, 118–119. For example, the possibility of
delays and illegitimate redactions has dissuaded
Professor Immerman and Mr. Fallon from writing
articles and manuscripts they would otherwise have
written. Id. ¶¶ 80, 112, 118. In addition, when
Mr. Edgar and Mr. Goodman have written
manuscripts, the fear of delay and illegitimate
censorship has led them to avoid topics they would
otherwise have addressed. Id. ¶¶ 66, 92.
II.
Proceedings Below
Petitioners filed this suit on April 2, 2019,
alleging that Respondents’ prepublication review
regimes violate their First and Fifth Amendment
rights and seeking declaratory and injunctive relief,
specifically identifying all of the above inadequacies
in the safeguards associated with the regimes to
which they are subject. On June 4, 2019,
Respondents filed a motion to dismiss, which the
district court granted on April 16, 2020. See App.
39a. The court held that Petitioners had standing
because they plausibly alleged that Respondents’
regimes chilled protected speech, but rejected their
claims that the regimes violated the First and Fifth
Amendments, relying on Snepp. Id. at 92a.
On June 23, 2021, the Fourth Circuit affirmed
this judgment. It agreed that Petitioners’ “selfcensorship” in response to “an objectively reasonable
chill” was sufficient to confer standing, id. at 20a,
and that the case was “ripe for adjudication,” id. at
23a. However, relying on Snepp, it held that, by
voluntarily
signing
prepublication
review
11
agreements, Petitioners had “waived their First
Amendment rights to challenge the requirement
that they submit materials for prepublication review
and the stated conditions for prepublication review.”
Id. at 25a. The court stated that, “[f]or the most part,
that could end the matter.” Id. at 25a.
The court went on to address Petitioners’
challenges to “the clarity of the stated conditions and
their interpretive scope, as well as the manner in
which defendant agencies have implemented
prepublication review.” Id. at 25a. The court found
that Snepp supplied “[t]he relevant constitutional
standard”—a “reasonableness test.” Id. at 27a–28a
(citing Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968)). The court acknowledged that United States
v. National Treasury Employees Union (NTEU), 513
U.S. 454 (1995), modified the standard of review
where, as here, a regulation imposes “a prior
restraint,” but it held that, under Snepp, “the
question in th[e] case reduce[d] to whether the
defendant agencies’ prepublication review regimes
are a reasonable and effective means of serving” the
government’s compelling interest in the secrecy of
information important to national security. App.
28a–29a. The court found that they were. Id. at 34a.
REASONS FOR GRANTING THE PETITION
I.
The permissible scope of Respondents’
prepublication review regimes is a
matter of extraordinary importance.
Respondents’ prepublication review regimes
subject Petitioners, as well as millions of other
12
former government employees, to an onerous and
far-reaching system of prior restraint lacking the
substantive and procedural safeguards that the
Court has required in other speech-licensing
contexts. These regimes curtail the public’s access to
speech that could inform public debate about
government policy—and do so through vague and
overbroad terms that are not necessary to protect
the government’s legitimate interests, and that
invite abuse. Absent this Court’s intervention, the
regimes will continue to impose these heavy costs on
free speech and public discourse, without ever being
subjected to meaningful scrutiny.
A.
Respondents’
prepublication
review regimes subject Petitioners
and millions of others to an
unnecessarily onerous and farreaching
system
of
official
censorship.
Respondents’ prepublication review regimes
severely restrict the speech rights of Petitioners and
millions of other former public servants. Compl.
¶¶ 1, 24. They impose prepublication review
obligations on these individuals for their entire lives.
Id. ¶ 24. They require the submission of material
that could not reasonably contain classified
information. Id. ¶¶ 32, 38, 50. They authorize
agencies, under vague standards, to redact far more
than just classified information learned in the
course of employment. Id. ¶¶ 39, 51. And they lack
reasonable procedural safeguards, including, most
notably, any legally binding deadlines for review. Id.
¶¶ 36, 42, 48, 54.
13
As an initial matter, these regimes vest
Respondents with overly broad discretion to review
and censor speech. Former employees must submit
for review material that the government has no
legitimate interest in reviewing; and the review
standards permit the government to censor speech it
has no legitimate interest in suppressing. For
example, the ODNI’s policy requires Mr. Edgar and
Professor Immerman to submit all manuscripts
discussing “national security,” id. ¶ 50, even if the
manuscripts are entirely unrelated to their past
employment. And the DOD’s policy that governs
Mr. Fallon’s and Ms. Bhagwati’s writings allows
reviewers to redact not just classified information,
but any information that implicates any “legitimate
governmental interest,” a phrase the DOD does not
define. App. 109a.
The regimes also effectively vest Respondents
with total discretion to delay the publication of
constitutionally protected speech through inaction.
The challenged policies provide only aspirational
deadlines, and the review process frequently
stretches out for many months or even years. Compl.
¶¶ 36, 42, 48, 54. The result is that Petitioners and
other former officials are often sidelined in debates
over current events, because their materials are
cleared for publication only after public attention
has shifted. Id. ¶¶ 66, 80, 112. The system also
deters publishers from working with former officials,
because it is difficult to know in advance when, or
even whether, an agency will complete its review. Id.
¶¶ 89, 112. And all of this chills former employees
from trying to contribute to public debates in the
first place. Id. ¶¶ 80, 112, 118.
14
The system is characterized by arbitrary and
even viewpoint-discriminatory decisions, and
unpredictable and lengthy delays. Id. ¶¶ 63–66, 74–
78, 89–90, 108–111. Former public servants who
express views critical of their former agencies must
be prepared to face especially hostile reviews. Id.
¶ 34. And former high-level officials routinely
receive preferential treatment, with reviews of their
manuscripts conducted more expeditiously and more
sympathetically. Id. ¶ 2.
The CIA has acknowledged concerns about the
integrity of its reviews. In 2012, the agency launched
an investigation to determine whether reviewers
were using the prepublication review system to
suppress criticism of the agency and its leadership.
Id. ¶ 34. The agency has not released the result of
that investigation, but a 2017 CIA Inspector General
report found that CIA reviewers “lack[] a formal
mechanism to objectively evaluate . . . classification
determinations,” increasing the risk of “arbitrary or
poorly informed” decisions, and that the agency
“does not always follow the prepublication review
process outlined in [its regulation] during reviews of
manuscripts authored by former CIA director-level
officers.”3
The chilling effect of these prior restraints is
impossible to measure, but the experiences of
See Inspector General, Central Intelligence Agency,
Prepublication Review Process 7–8, 11 (Jan. 2017),
https://perma.cc/G5YA-JJHP.
3
15
Petitioners and others highlight the heavy burdens
Respondents’ regimes impose on protected speech.
B.
The challenged systems deprive
the public of speech by former
public servants, imposing an
intolerable cost on public debate.
Respondents’ prepublication review regimes also
have far-reaching implications for public debate. Id.
¶¶ 66, 80, 92–93, 118. As this Court has recognized,
“speech by public employees on subject matter
related to their employment holds special value
precisely because those employees gain knowledge of
matters of public concern through their
employment.” Lane v. Franks, 573 U.S. 228, 240
(2014). Respondents’ prepublication review regimes
deprive the public of this speech of “special value.”
Id.
This is of particular concern here for two reasons.
First, the speech suppressed by the prepublication
review system concerns, among other things, foreign
affairs, national security, and war. As Justice
Stewart observed in the Pentagon Papers case,
government action in these areas is not subject to
the checks that apply in other contexts. As a result,
“the only effective restraint” on government action
in these spheres is “an informed and critical public
opinion.” N.Y. Times Co. v. United States (Pentagon
Papers), 403 U.S. 713, 728 (1971) (Stewart, J.,
concurring).
Second, as noted above, the breadth and
vagueness of Respondents’ regimes invite viewpoint
16
and other illegitimate discrimination by agency
reviewers. As the Court has noted, public employees
“are often in the best position to know what ails the
agencies for which they work,” and accordingly, their
criticisms are all the more vital for the public to
hear. Lane, 573 U.S. at 236 (quoting Waters v.
Churchill, 511 U.S. 661, 674 (1994) (plurality
opinion)). But it is precisely these criticisms that are
most likely to be chilled or suppressed by
Respondents’ regimes.
The record in this case highlights the costs that
Respondents’ regimes can impose on public debate.
To take one of many examples: In 2016, Mr. Fallon
completed a book criticizing the U.S. government’s
use of torture in the aftermath of the September 11
attacks. Compl. ¶ 104. The book relied on
declassified records in an effort to inform public
debate at a time when torture had once again
become a salient political issue. Id. ¶¶ 104, 107.
Delays in the DOD’s review, however, pushed back
his publication date by seven months, forcing him to
cancel speaking events. When he ultimately received
the results of the DOD’s review, some of the DOD’s
proposed redactions were intended to protect the
DOD from embarrassment, not to protect legitimate
secrets. The review had already taken so long,
however, that he felt obliged to accept the redactions
to avoid further delay. Id. ¶¶ 108–112. Former
government employees who wrote manuscripts
supportive of the torture policies, and addressing the
same historical events, had not encountered the
same difficulties. Id. ¶ 34.
17
More recently, media reports confirmed that the
last administration abused the prepublication
review process to delay the publication of a book
critical of the president. See Complaint ¶¶ 46, 51,
United States v. Bolton, No. 1:20-cv-01580, 2020 WL
3258058 (D.D.C. filed June 16, 2020). In 2020, the
Justice Department filed suit in an effort to enjoin
the book’s publication, but a year later, the
Department—operating under a new president—
simply dropped the lawsuit. See Michael S. Schmidt
& Katie Benner, Justice Dept. Ends Criminal
Inquiry and Lawsuit on John Bolton’s Book, N.Y.
Times (June 16, 2021), https://perma.cc/5UA4LBJN. This kind of politically motivated misuse is a
predictable outcome of a regime that gives executive
officers sweeping discretion without clear
procedural or substantive safeguards.
II.
The Court should overrule Snepp.
The court of appeals rejected Petitioners’
challenge to Respondents’ prepublication review
regimes largely—if not entirely—on the basis of this
Court’s decision in Snepp. This Court should grant
review to overrule Snepp, which failed adequately to
account for the First Amendment interests
implicated by agency prepublication review regimes,
and failed even to address whether prepublication
regimes should contain the substantive and
procedural safeguards that this Court has insisted
on in all other contexts involving the licensing of
speech.
Snepp involved a former CIA officer, Frank
Snepp, who had signed “an agreement promising
18
that he would ‘not . . . publish . . . any information or
material relating to the Agency, its activities or
intelligence activities generally, either during or
after the term of [his] employment . . . without
specific prior approval by the Agency.’” 444 U.S. at
508. Shortly after resigning from the agency, he
published a book without first submitting it for
review. Id. at 507. When the government sued him
for violating his contract, the district court found
that Snepp had “willfully, deliberately and
surreptitiously breached his position of trust with
the CIA and [his] secrecy agreement,” that he had
deliberately misled CIA officials into believing that
he would submit his book for review, and that
publication of the book had “caused the United
States irreparable harm and loss.” United States v.
Snepp, 456 F. Supp. 176, 179–80 (E.D. Va. 1978).
Relying on these findings, the district court enjoined
Snepp from violating his agreement in the future
and imposed a constructive trust on the book’s
proceeds. Id. at 182. The Fourth Circuit affirmed the
injunction but reversed the order imposing a
constructive trust. United States v. Snepp, 595 F.2d
926, 929 (4th Cir. 1979).
Snepp and the government cross-petitioned for
certiorari. The Court granted the cross-petitions but
did not invite merits briefing or hold oral argument.
Instead, in a per curiam opinion (over a lengthy
dissent), the Court focused almost exclusively on the
questions of fiduciary duty and remedy. It
mentioned the First Amendment only twice,
including once in its recitation of the decisions
below. Snepp, 444 U.S. at 509 n.3, 510.
19
The Court held that when Snepp “deliberately
and surreptitiously” refused to submit a manuscript
“about CIA activities,” derived from his “experiences
as a CIA agent” and based on his “frequent access to
classified information,” he “breached a fiduciary
obligation,” and therefore the imposition of a
constructive trust on “the proceeds of his breach”
was proper. Snepp, 444 U.S. at 510–11.
In a footnote buried in the opinion’s recitation of
the case’s procedural history, the Court cursorily
disposed of Snepp’s contention that the contract was
unenforceable as a prior restraint. The Court wrote:
“The Government has a compelling interest in
protecting both the secrecy of information important
to our national security and the appearance of
confidentiality so essential to the effective operation
of our foreign intelligence service. . . . The
agreement that Snepp signed is a reasonable means
for protecting this vital interest.” Id. at 509 n.3.
Evaluating an agency’s prepublication review
regime under a “reasonableness” standard, without
any assessment of whether the scheme incorporated
adequate substantive or procedural safeguards, was
wrong when Snepp was decided and is even more
clearly wrong today. Prepublication review regimes
are
licensing
schemes—quintessential
prior
restraints. The Court has long recognized that
licensing schemes violate the First Amendment
unless they include narrow and precise substantive
standards to cabin official discretion, and robust
procedural safeguards designed to limit the
opportunity for abuse. See, e.g., Shuttlesworth v. City
of Birmingham, 394 U.S. 147 (1969); Freedman v.
20
Maryland, 380 U.S. 51 (1965). To be sure, the
regimes challenged here apply to former government
employees, not the citizenry at large. But after
Snepp, this Court has made clear that a prospective
restriction on the speech of even current government
employees must satisfy a test that “closely resembles
exacting scrutiny”—a test far more demanding than
the one the Court applied in Snepp. Janus v. Am.
Fed’n of State, Cnty., & Mun. Emps., Council 31, 138
S. Ct. 2448, 2472 (2018); see also NTEU, 513 U.S.
454, 468 (1995).
This Court should overrule Snepp because it is
inconsistent with the Court’s prior restraint cases
and more recent cases concerning the speech of
public employees.
A.
Snepp is inconsistent with the
Court’s prior restraint cases.
1.
This Court has long imposed
rigorous procedural and
substantive requirements on
government
licensing
schemes.
Because they forbid would-be speakers from
speaking without the prior approval of government
officials, thereby prohibiting speech “before an
adequate determination that it is unprotected,”
agency prepublication review regimes are classic
prior restraints. Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Rel., 413 U.S. 376, 390 (1973);
see also Alexander v. United States, 509 U.S. 544,
550 (1993). Agency officials are “empowered to
21
determine whether the applicant should be granted
permission—in effect, a license or permit—on the
basis of [their] review of the content of the proposed
[speech].” Se. Promotions, Ltd. v. Conrad, 420 U.S.
546, 554 (1975). And the reviewers impose
restrictions on speech “without a prior judicial
determination” that their judgment is correct.
Alexander, 509 U.S. at 551.
Yet, rather than apply the heavy presumption of
unconstitutionality that attends every system of
prior restraint, and without assessing whether the
system contained the safeguards the Court requires
where prior restraints are permissible, see Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), the
Snepp Court concluded that it was “reasonable” for
the CIA to require a former public servant to submit
his manuscript for approval prior to publication. 444
U.S. at 509 n.3. The Court did not engage in, or
attempt to justify its departure from, prior restraint
analysis. Writing in dissent, Justive Stevens
remarked that the majority “seem[ed] unaware” that
its cursory First Amendment analysis had
potentially “fashioned” a “drastic new remedy” to
“enforce a species of prior restraint on a citizen’s
right to criticize his government.” 444 U.S. at 526
(Stevens, J., dissenting). Justice Stevens warned
that “[i]nherent in this prior restraint is the risk that
the reviewing agency will misuse its authority to
delay the publication of a critical work or to
persuade an author to modify the contents of his
work beyond the demands of secrecy.” Id. He
continued: “The character of the covenant as a prior
restraint on free speech surely imposes an especially
22
heavy burden on the censor to justify the remedy it
seeks.” Id.
Justice Stevens was right that the Court should
have evaluated Snepp’s prepublication review
obligation as a prior restraint, and asked whether it
contained adequate substantive and procedural
safeguards. To be sure, recognizing that the CIA’s
requirement was a prior restraint would not
necessarily have led to its invalidation. This Court’s
jurisprudence makes clear that prior restraints can
be permissible in some circumstances. But
evaluating the review obligation as a prior restraint
would have required the Court to assess it against a
different, and more stringent, body of law.
In particular, any system of prior restraint must
include, at a minimum, “narrow, objective, and
definite standards to guide the licensing authority,”
Shuttlesworth, 394 U.S. at 150–51, and “procedural
safeguards designed to obviate the dangers of a
censorship system,” Freedman, 380 U.S. at 58. Even
when a national security interest is invoked, the
government must show that the system of prior
restraint is no broader than necessary to
accommodate its interest. Pentagon Papers, 403 U.S.
at 730. Yet the Court in Snepp never even assessed
the adequacy of the safeguards contained in the
CIA’s prepublication review scheme.
23
2.
Respondents’ prepublication
review regimes lack the
substantive and procedural
protections
required
of
licensing schemes.
Snepp’s fundamental error has had the effect of
insulating prepublication review regimes from
meaningful First Amendment scrutiny. Regimes
like the ones challenged in this case are the
predictable result. It is plain that they would not
survive scrutiny under the standards the Court has
applied in other contexts involving the licensing of
speech.
Respondents’ regimes lack narrow, objective, and
definite substantive standards to guide government
officials and cabin their discretion when reviewing
materials. See Shuttlesworth, 394 U.S. at 150–51.
They permit officials to censor information that is
not classified, and not learned in the course of an
author’s government employment, as Petitioners’
experiences attest. Compl. ¶¶ 73–75, 90. As noted
above, one of the regimes empowers reviewers to
redact information whenever they determine that
doing so would serve a “legitimate governmental
interest,” App. 9a, a phrase that is nowhere defined,
and two of the regimes lack any substantive
standards for redaction whatsoever, Compl. ¶¶ 45,
51.
The regimes also lack narrow, objective, and
definite standards for what former employees must
submit for review. The regimes impose an obligation
to submit on all former employees, without regard to
24
whether they had access to classified information.
Id. ¶¶ 32, 38, 44, 50, 90. They also require the
submission of virtually anything Petitioners write
about the government or national security,
regardless of whether they rely on classified
information they learned in the course of their
employment. Id. ¶¶ 32, 38, 44, 50. For example, the
ODNI requires Professor Immerman and Mr. Edgar
to submit any information “that discusses the ODNI,
the IC [Intelligence Community], or national
security.” Id. ¶ 50. The DOD requires Ms. Bhagwati
to submit anything that “relates to information in
the custody and control of the [DOD]” if it “pertains
to . . . subjects of significant concern to [the agency].”
Id. ¶ 38.
The challenged regimes also lack the procedural
safeguards required to mitigate the risk of
illegitimate censorship. See Freedman, 380 U.S. at
58–59; Forsyth Cnty. v. Nat’list Movement, 505 U.S.
123, 130–31 (1992); Se. Promotions, 420 U.S. at 560.
Most critically, they lack any binding or enforceable
deadlines that would make review predictable and
fair. Compl. ¶¶ 36–37, 42–43, 48–49, 54–55.
To be clear, Petitioners do not contend that
prepublication review regimes are per se
unconstitutional. The government plainly has a
legitimate interest in preventing inadvertent
disclosures of classified information. App. 29a.4 But
4 This interest is served principally through laws that
criminalize the mishandling and disclosure of classified
information. Prepublication review serves the government’s
25
it does not follow that any review regime is
permissible, no matter how broad or vague its
standards, no matter how much discretion it affords
to government censors, and no matter its lack of
procedural safeguards. Rather, because prior
restraints strike at the core of the First Amendment,
the government should have to demonstrate that it
could not protect its legitimate interests under a
more narrowly tailored regime.
This Court in Snepp, and the Fourth Circuit here,
never put the government to that test. As a result,
Respondents have never had to explain why they
cannot commit, even presumptively, to completing
review in a specific period of time, why reviewers
must have the authority to censor information that
is not classified, and why censors’ decisions should
be guided by nothing other than an undefined
“legitimate governmental interest.” App. 9a. But
absent such a showing, the regimes challenged here
cannot satisfy the exacting scrutiny the First
Amendment demands.
B.
Snepp is inconsistent with the
Court’s recent employee-speech
jurisprudence.
Snepp is also inconsistent with this Court’s
decision in NTEU, 513 U.S. 454, which held that
across-the-board prospective restrictions on the
speech of even current employees are subject to more
narrow and residual interest in preventing inadvertent
disclosures that are not prevented by the threat of criminal
penalties.
26
stringent scrutiny than the reasonableness standard
Snepp applied, and which some courts have equated
with traditional Pickering analysis. See Weaver v.
U.S. Info. Agency, 87 F.3d 1429, 1439 (D.C. Cir.
1996) (noting that the Snepp Court “essentially
applied Pickering”); see also App. 28a (same).
NTEU involved a statute that banned federal
employees from accepting compensation for making
speeches or writing articles. 513 U.S. at 457.
Rejecting the government’s invitation to apply the
Pickering balancing test, the Court distinguished
between cases that involve a “post hoc” challenge to
“an isolated disciplinary action” and those that
involve a challenge to a “wholesale deterrent to a
broad category of expression by a massive number of
potential speakers.” Id. at 467–68. The latter, it
observed, “give[] rise to far more serious concerns”
because the regulation has a “widespread impact”
and “chills potential speech before it happens.” Id. at
468. For these reasons, the Court held that “the
Government’s burden [of justification for such a
restraint] is greater” than it is under Pickering. Id.
Whereas the test under Pickering balances the
interests of the government in punishing a
particular speaker against the interests of the
employee in engaging in that speech, the test under
NTEU accounts for the interests of all employees
whose speech is or will be restricted and of their
audiences in hearing what they have to say. As the
NTEU Court explained, 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
27
outweighed by that expression’s ‘necessary impact
on the actual operation’ of the Government.” Id. at
468 (quoting Pickering, 391 U.S. at 571). Moreover,
the government “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.” Id. at 475 (cleaned up) (quoting Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)). As this
Court recently recognized, “the end product of those
adjustments is a test that more closely resembles
exacting scrutiny than the traditional Pickering
analysis.” Janus, 138 S. Ct. at 2472.
The prepublication review regimes at issue here
are far more onerous than that at issue in NTEU, as
they wholly forbid speech absent prior government
approval. Where, as here, the government imposes a
lifelong prior restraint on citizens, NTEU demands
that at a minimum the scheme include adequate
substantive and procedural safeguards. As NTEU
itself recognized, traditional prior restraint
principles are relevant to evaluating prior restraints
on employee speech. NTEU, 513 U.S. at 468 (citing
Near v. Minnesota ex rel Olson, 283 U.S. 697 (1931));
see also, e.g., Sanjour v. EPA, 56 F.3d 85 (D.C. Cir.
1995) (“[I]n the context of [NTEU] balancing, [the
potential for censorship] justifies an additional
thumb on the employees’ side of [the] scales.”);
Harman v. City of N.Y., 140 F.3d 111, 120 (2d Cir.
1998) (relying on Freedman, Shuttlesworth, and
related cases to find a regulation of employee speech
invalid under NTEU).
28
NTEU thus casts even further doubt on the
continuing validity of Snepp. This Court should
grant the Petition to make clear that licensing
schemes like Respondents’ should be subject to a far
more
exacting
level
of
scrutiny
than
“reasonable[ness],” Snepp, 444 U.S. at 509 n.3, and
properly apply that scrutiny to Respondents’
regimes.
C.
Snepp’s procedural irregularities
are an additional reason to revisit
the case.
Snepp’s irregular procedural history supplies an
additional reason to revisit the case.
In his petition for certiorari, Snepp argued that
his secrecy agreement was unenforceable as a prior
restraint. Id. The Court granted Snepp’s petition, as
well as a conditional cross-petition by the
government that focused on the question of remedy.
Very unusually, however, the Court decided the case
summarily on the basis of the petitions, without
inviting briefing on the merits or hearing oral
argument. Id. at 526 n.17 (Stevens, J., dissenting).
And it decided a major constitutional question in
summary fashion, in a per curiam opinion, in a lone
footnote, outside the substantive portion of its
opinion. Id. at 509 n.3 (majority op.).
This Court has recognized that deference to
precedent is less appropriate where there were
procedural irregularaties in the generation of the
decision in question. For example, in Hohn v. United
States, 524 U.S. 236 (1998), the Court explained that
29
because “stare decisis is a principle of policy rather
than an inexorable command, . . . we have felt less
constrained to follow precedent where . . . the
opinion was rendered without full briefing or
argument.” Id. at 251 (quotation marks and citation
omitted) (citing Gray v. Mississippi, 481 U.S. 648,
651 n.1 (1987)); cf. Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 500 (1981) (plurality op.)
(explaining that summary decisions “do not present
the same justification for declining to reconsider a
prior decision as do decisions rendered after
argument and with full opinion”).
This observation in Hohn built upon what the
Court, almost a half century ago, called “obvious[]”:
that the Court’s prior summary treatment of
(especially, constitutional) questions does not yield
opinions “of the same precedential value” as do
“opinion[s] of this Court treating the question on the
merits.” Edelman v. Jordan, 415 U.S. 651, 671
(1974); see also McCutcheon v. FEC, 572 U.S. 185,
200 (2014) (determining that prior precedent did not
control where the Court had “spent a total of three
sentences analyzing” the First Amendment question
at stake, and the parties had not “addressed [that
question] at length” (quotation marks omitted)).
Snepp itself makes clear why these principles are
important: its underanalyzed and underexplained
result are a weak foundation for what has become a
uniquely far-reaching system of prior restraint. This
Court should grant certiorari to revisit and more
fully address the important questions that lower
courts have understood Snepp to have decided.
30
III.
In the alternative, the Court should
clarify that Snepp does not preclude
meaningful scrutiny of Respondents’
prepublication review regimes.
If the Court does not overrule Snepp, it should at
least clarify that the case does not preclude
meaningful judicial scrutiny of the adequacy of
substantive and procedural safeguards associated
with prepublication review regimes.
In the years following Snepp, lower courts,
including the Fourth Circuit below, have effectively
interpreted Snepp to hold that intelligence agencies’
prepublication review regimes are per se
constitutional. But Snepp did not so hold. Because of
the posture in which Snepp came to the Court, the
Court’s opinion focused narrowly on a question of
remedy and did not consider the questions presented
here, including: the substantive scope of materials
an agency may constitutionally require Petitioners
to submit for review, on what bases an agency may
constitutionally withhold permission to publish, and
whether there must be strict presumptive time
limits on agency review. Snepp cannot fairly be read
to have silently endorsed every feature of the
prepublication review system that existed in 1980,
and it certainly cannot be read to have endorsed
Respondents’ much broader and much more speechsuppressive regimes. This Court should grant
review to correct the contrary interpretation reached
by the lower court here, and to consider the
constitutional bounds of Respondents’ authority to
subject Petitioners and other former employees to
prepublication review obligations.
31
Only two circuit courts, including the court
below, have considered challenges to the
constitutionality of agency prepublication review
regimes since Snepp.
The Fourth Circuit in this case concluded that
Snepp
controlled
the
constitutionality
of
Respondents’ prepublication review regimes, even
though Snepp says nothing about the requisite
procedural
or
substantive
safeguards
for
prepublication review. The court reasoned that
Petitioners had voluntarily signed nondisclosure
agreements that required them to submit for
prepublication review, and that Snepp had already
held “such agreements are not ‘unenforceable as
prior restraint[s].’” App. 24a (quoting Snepp, 444
U.S. at 509 n.3). In effect, the court read Snepp as
having announced a categorical rule barring
government employees who sign such agreements
from challenging “the requirement that they submit
materials for prepublication review and the stated
conditions for prepublication review.” Id. at 25a. In
the court’s view, Snepp largely “end[ed] the matter.”
Id.5
While the court purported to consider
Petitioners’ challenges to “the clarity of the stated
The Fourth Circuit’s conclusion, based on Snepp, that
Petitioners had “knowingly waived their First Amendment
rights” is simply wrong. App. 25a. As both Pickering and NTEU
make clear, contractual waivers of employee speech rights are
subject to First Amendment scrutiny. See McGehee v. Casey,
718 F.2d 1137, 1147–48 (D.C. Cir. 1983); Mansoor v. Trank,
319 F.3d 133, 139 n.4 (4th Cir. 2003); Barone v. City of
Springfield, 902 F.3d 1091, 1101 (9th Cir. 2018).
5
32
conditions and their interpretive scope, as well as
the manner in which the defendant agencies h[ad]
implemented prepublication review,” its analysis of
those challenges was cursory. Id. And despite
claiming to evaluate Respondents’ regimes against
the test from NTEU, id. at 28a, the Fourth Circuit
failed to consider any of the key elements of that
test. It did not consider the interests of employees
whose speech is or will be restricted, the interests of
their potential audiences in hearing what they have
to say, or whether the absence of meaningful
substantive or procedural safeguards was
“reasonably necessary” to address harms to the
actual operation of government. Instead, in light of
its interpretation of Snepp, the court asked merely
whether the agencies’ regimes were “a reasonable
and effective means of serving that interest.” Id. at
29a. The court did not engage in any balancing until
the very the end of its opinion, where it stated
summarily that the strength of the government’s
interest “require[d] some give in the plaintiffs’
speech interests,” and declared that Petitioners
“freely gave their assent to this” state of affairs. Id.
at 37a.
Years earlier, the D.C. Circuit committed a
similar error in Weaver v. U.S. Information Agency,
87 F.3d 1429 (D.C. Cir. 1996). There, it concluded
that the State Department’s prepublication review
regime, as it existed in 1996, did not violate the First
Amendment, purportedly “[a]pplying . . . Pickering
and NTEU.” Id. at 1440. The government’s
insistence that the regime did not “authorize any
form of punishment for publication of material
disapproved by the agency,” id. at 1435,
33
considerably narrowed the court’s inquiry but did
not end it. Permeating the court’s analysis was its
assumption that Snepp considered the CIA regime
then in force to be “obviously constitutional.” Id. at
1439.
For example, in considering the scope of the State
Department’s submission requirement, and its
failure to provide a definite time limit for review, the
court treated Snepp as effectively dispositive, paying
only lip service to the balancing called for by NTEU.
See id. at 1431–32 (approving requirement to submit
any material related to the “employee’s agency or
U.S. foreign policy,” and “any material that
reasonably may be expected to affect the foreign
relations of the United States,” citing Snepp
(internal quotations omitted)); id. at 1441
(approving application of requirement to “personnel
without direct access to classified information,”
again citing Snepp); id. at 1443 (approving lack of
definite time limit, reasoning that Snepp and other
cases have “uniformly assessed prior restraints in
the setting of government employment by standards
less demanding than those used for traditional prior
restraints”).
Both the decision below and Weaver drastically
overread Snepp. Snepp was a narrow opinion about
the remedies available to the CIA against an author
who “willfully, deliberately[,] and surreptitiously”
flouted his obligations under a now-displaced review
scheme. United States v. Snepp, 456 F. Supp. 176,
179–80 (E.D. Va. 1978). Virtually all of the analysis
in Snepp focused on whether the agency was entitled
to the proceeds of Snepp’s book in light of his willful
34
violation of his agreement. The Court did not
consider the constitutionality of the specific features
of the CIA’s prepublication review regime, let alone
the features of any other regime.
Snepp did not, for example, consider the
categories of speakers to whom a prepublication
review requirement may constitutionally extend.
Snepp himself was a former CIA officer who had
been granted access to some of the government’s
most closely held secrets, and the Court emphasized
that status in concluding that his prepublication
review requirement was constitutional: “Few types
of governmental employment involve a higher
degree of trust than that reposed in a CIA employee
with Snepp’s duties.” Snepp, 444 U.S. at 511 n.6.
Moreover, Snepp had left the CIA relatively
recently. (He resigned in 1976 and published his
book the following year. Id. at 508 n.1.) The Court
did not consider (or have any reason to consider)
whether the prepublication review obligation the
CIA had imposed on Snepp could be imposed on
other CIA employees, or on employees of other
agencies, and it did not consider whether the First
Amendment would bar the agency from enforcing a
prepublication review requirement on someone who
had left the agency’s employ many years earlier.
Nor did Snepp consider what materials an
agency can constitutionally require its former
employees to submit for review, the grounds on
which a government reviewer can constitutionally
censor a manuscript, the length of time an agency
may constitutionally spend reviewing a manuscript,
or the other procedural protections that must be
35
afforded to former government employees in this
context. The Court had no reason to reach these
issues, because Snepp did not submit his manuscript
for review, and because it was undisputed that the
manuscript described CIA intelligence activities to
which Snepp was privy during his official service.
Snepp, 456 F. Supp. at 178.
To the extent that Snepp considered the specific
features of the CIA’s prepublication review regime
at all, it considered those features as modified by the
district court injunction Snepp challenged. That
injunction included a number of safeguards that
Snepp’s secrecy agreement did not: it required
Snepp to submit writings only if they contained
information he “gained during the course of or as a
result of his employment,” it required the CIA to
complete its review within thirty days, and it
permitted the CIA to censor only information that
was classified. Id. at 182. In approving this
injunction, the Supreme Court retained these
safeguards.
Even if Snepp’s footnote could tenably be read as
a silent endorsement of every feature of the CIA’s
regime in 1980, it cannot reasonably be read as a
categorical endorsement of the sprawling,
byzantine,
and
multifariously
dysfunctional
prepublication review regimes that Petitioners have
challenged here. As noted above, in 1977, the year
Snepp published his book, the CIA received only
forty-three submissions for prepublication review.
Compl. ¶ 28. The processes and practices
surrounding prepublication review were relatively
new, and lifetime prepublication review was
36
confined to the CIA and NSA, the two agencies with
the most direct role in intelligence gathering. Id.
¶ 24. As a result, prepublication review applied, in
practice, to relatively few people and publications.
Id. ¶¶ 27–28. Since then, however, the system has
expanded on every axis, as described at length
above. See supra Statement of the Case, Part I.A.
The Court should grant review to make clear that
Snepp does not control the constitutionality of all
systems of prepublication review, regardless of their
substantive and procedural safeguards, and to
evaluate the constitutionality of the specific regimes
challenged here.
IV.
This case provides an optimal vehicle for
revisiting Snepp and clarifying the
application of the First Amendment to
prepublication review regimes.
This case affords the Court an optimal vehicle for
overruling or clarifying Snepp, for two reasons.
First, litigation over prepublication review is
extremely uncommon and rarely produces
substantive decisions.6 Authors rarely bring suits
because they are expensive, cf. Compl. ¶ 112;
because they prefer to publish manuscripts with
redactions rather than wait for courts to resolve
disputes, id. ¶ 78; because contesting agencies’
See Kevin Casey, Note, Till Death Do Us Part:
Prepublication Review in the Intelligence Community, 115
Colum. L. Rev. 416, 450 (2015) (collecting cases mooted by
agencies).
6
37
censorship decisions is made difficult by the fact that
agencies seldom provide reasons for them, id. ¶ 88;
and because they fear aggravating agency reviewers
who may have authority over other manuscripts
they have to submit in the future, id. ¶ 64. And
authors rarely foreground constitutional challenges
in as-applied litigation because the courts have
treated Snepp as having effectively exempted such
regimes from ordinary constitutional scrutiny. It is
unlikely that this Court will have another
opportunity to revisit Snepp anytime soon.
Second, this case presents the issues for review
squarely and cleanly. Both the district court and
Fourth Circuit recognized that Petitioners have
standing to challenge Respondents’ regimes, and
that Petitioners’ claims are ripe for review. Because
Petitioners are concerned in part about the
application of Respondents’ regimes to manuscripts
they will submit in the future, there is no risk that
the case will become moot while the Court considers
it. And, as the Fourth Circuit’s opinion makes clear,
the case squarely presents the question of how
Snepp should be reconciled with this Court’s more
recent caselaw concerning the free speech rights of
public employees.
CONCLUSION
For reasons discussed above, Petitioners
respectfully ask this Court to grant their petition.
38
Respectfully submitted,
Brett Max Kaufman
Vera Eidelman
Shreya Tewari
Ben Wizner
American Civil Liberties
Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
David D. Cole
American Civil Liberties
Union Foundation
915 15th Street, NW
Washington, DC 20005
David R. Rocah
American Civil Liberties
Union Foundation of
Maryland
3600 Clipper Mill Road,
Suite 350
Baltimore, MD 21211
November 22, 2021
39
Jameel Jaffer
Counsel of Record
Alex Abdo
Ramya Krishnan
William Hughes
Knight First Amendment
Institute at Columbia
University
475 Riverside Drive, Suite 302
New York, NY 10115
(646) 745-8500
jameel.jaffer@knightcolumbia.org
APPENDIX
APPENDIX A
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
Docket No. 20-1568
TIMOTHY H. EDGAR; RICHARD H.
IMMERMAN; MELVIN A. GOODMAN;
ANURADHA BHAGWATI; MARK FALLON,
Plaintiffs – Appellants,
v.
AVRIL D. HAINES, in her official capacity as
Director of National Intelligence; DAVID COHEN,
in his official capacity as Director of the Central
Intelligence Agency; LLOYD J. AUSTIN, III, in his
official capacity as Secretary of Defense; PAUL M.
NAKASONE, in his official capacity as Director of
the National Security Agency,
Defendants – Appellees.
PROFESSOR JACK GOLDSMITH; PROFESSOR
OONA A. HATHAWAY; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS,
Amici Supporting Appellant.
Appeal from the United States District Court for
the District of Maryland at Greenbelt.
George Jarrod Hazel, District Judge.
(8:19-cv-00985-GJH)
.
1a
Argued: May 4, 2021
Decided: June 23, 2021
Before NIEMEYER and KEENAN, Circuit Judges,
and TRAXLER, Senior Circuit Judge.
.
Affirmed by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Keenan and
Judge Traxler joined.
ARGUED: Brett Max Kaufman, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New
York, New York, for Appellants. Daniel Lee Winik,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
ON BRIEF: Alexia Ramirez, Vera Eidelman, Ben
Wizner, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, New York, New York; David R.
Rocah, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND, Baltimore,
Maryland; Jameel Jaffer, Alex Abdo, Ramya
Krishnan, Meenakshi Krishnan, KNIGHT FIRST
AMENDMENT INSTITUTE AT COLUMBIA
UNIVERSITY, New York, New York, for
Appellants. Jeffrey Bossert Clark, Acting Assistant
Attorney General, H. Thomas Byron III, Civil
Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Robert K. Hur,
United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellees. Paul N. Harold,
Washington, D.C., Brian M. Willen, Lauren Gallo
White, Brian Levy, WILSON SONSINI
2a
GOODRICH & ROSATI PROFESSIONAL
CORPORATION, New York, New York, for Amici
Professors Jack Goldsmith and Oona Hathaway.
Bruce D. Brown, Katie Townsend, Gabe Rottman,
REPORTERS COMMITTEE FOR FREEDOM OF
THE PRESS, Washington, D.C., for Amicus
Reporters Committee for Freedom of the Press.
NIEMEYER, Circuit Judge:
Five former employees of our Nation's security
agencies who, during their employment, had
clearances for access to classified and sensitive
information, commenced this action against the
Central Intelligence Agency (CIA), the Department
of Defense (DoD), the National Security Agency
(NSA), and the Office of the Director of National
Intelligence (ODNI), facially challenging the
agencies’ requirements that current and former
employees give the agencies prepublication review of
certain materials that they intend to publish. These
prepublication review requirements allow the
agencies to redact information that is classified or
otherwise sensitive to the national security. The
employees alleged in their complaint that this
prepublication review — which is implemented
through “regimes” of policies, regulations, and
individual employee agreements — violates their
free speech rights guaranteed by the First
Amendment and their rights under the Due Process
Clause of the Fifth Amendment. Specifically, they
alleged that the agencies’ regimes “fail to provide
former government employees with fair notice of
what they must submit,” “invest executive officers
3a
with sweeping discretion to suppress speech[,] and
fail to include procedural safeguards designed to
avoid the dangers of a censorship system.”
The district court, in a thorough and wellreasoned opinion, granted the defendant agencies’
motion to dismiss, holding that their prepublication
review regimes were “reasonable” measures to
protect sensitive information and thereby did not
violate the plaintiffs’ First Amendment rights. The
court held further that the regimes were not unduly
vague under the Fifth Amendment because they
adequately informed authors of the types of
materials they must submit and established for
agency reviewers the kinds of information that can
be redacted.
We agree with the district court and affirm.
I.
Information related to national security has,
since World War I, been graded according to
sensitivity under a classification system. See Dep't
of Navy v. Egan, 484 U.S. 518, 527 (1988); see also
Daniel Patrick Moynihan et al., Report of the
Commission
on
Protecting
and
Reducing
Government Secrecy, S. Doc. No. 105-2, app. A
(“Secrecy: A Brief Account of the American
Experience”) (1997). And security agencies have,
over the years, adopted policies and regulations to
protect classified information from public disclosure.
They have also required various employees to sign
agreements, as a condition of employment or as a
condition for receiving access to classified
4a
information, requiring the employees to follow the
agencies’ policies and regulations. Currently,
information that is subject to classification includes
“military plans, weapons systems, or operations”;
“foreign government information”; “intelligence
activities”; “foreign activities of the United States”;
and “vulnerabilities or capabilities of ...
infrastructures ... relating to the national security”;
as well as a few other categories of a similarly
sensitive nature. Exec. Order No. 13,526, Classified
National Security Information, 75 Fed. Reg. 707, 709
(Dec. 29, 2009).
Under current classifications, information that,
if disclosed, “reasonably could be expected to cause
damage to the national security” is classified as
“Confidential”; information the disclosure of which
“reasonably could be expected to cause serious
damage to the national security” is classified as
“Secret”; and information that, if disclosed,
“reasonably could be expected to cause exceptionally
grave damage to the national security” is classified
as “Top Secret.” Exec. Order No. 13,526, 75 Fed. Reg.
at 707–08 (emphasis added). In addition, when
information “concern[s] or [is] derived from
intelligence sources, methods[,] or analytical
processes” that require protection “within formal
access control systems,” it may be further designated
as “Sensitive Compartmented Information,” or
“SCI.” Intelligence Community Directive 703,
Protection of Classified National Intelligence,
Including Sensitive Compartmented Information § 2
(June 21, 2013).
5a
Disclosing information involving national
security can be detrimental to the vital national
interest, and courts have recognized that the
government has “a compelling interest in protecting
... the secrecy of [such] important” information.
Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)
(per curiam). As a consequence, agencies involved in
intelligence and national security currently have in
place, through policies and regulations, a range of
practices and procedures designed to protect against
the inappropriate disclosure of information related
to national security. One such practice and
procedure is “prepublication review,” which requires
current and former employees to submit materials
intended for publication to their agencies to enable
the agencies to redact, in advance of publication,
classified or otherwise sensitive information. This
prepublication review process — which is the subject
of the plaintiffs’ challenge here — relies on the
agency's judgment about what is sensitive and
detrimental to the national security and therefore
must be redacted, rather than on the employee's
independent judgment. This is because the agency
has a “broader understanding of what may expose
classified information and confidential sources.” Id.
at 512.
Under the prepublication review process adopted
by each of the defendant agencies, current and
former employees are required to submit to their
agencies a broad scope of materials that relate to
their employment and experience with the agency
and that they intend to publish. The agency reviews
the materials for classified and sensitive
information and, to protect against disclosure of that
6a
information, directs that it be redacted, thereby
ensuring that the information will not be
inadvertently disclosed by the author. The details of
the process for each defendant agency are as follows.
The CIA: CIA Agency Regulation 13-10, Agency
Prepublication Review of Certain Material Prepared
for Public Dissemination (June 25, 2011), provides
that employees, former employees, “and others who
are obligated by CIA secrecy agreement” must
“submit for prepublication review” “any written,
oral, electronic, or other presentation intended for
publication or public dissemination, whether
personal or official, that mentions CIA or
intelligence data or activities on any subject about
which the author has had access to classified
information in the course of his employment or other
contact with the” CIA. Id. § 2(b)(1), (e)(1). The CIA
reviews proposed publications “solely to determine
whether [they] contain[ ] any classified information.”
Id. § 2(f)(2). And “[a]s a general rule, the [CIA] will
complete prepublication review ... within 30 days of
receipt of the material.” Id. § 2(d)(4). The regulation
explains, however, that while “short, time-sensitive
submissions ... will be handled as expeditiously as
practicable,” “[l]engthy or complex submissions may
require a longer period of time for review.” Id.
Authors dissatisfied with the initial reviewer's
decisions can appeal within the CIA. Id. § 2(h)(1).
Consistent with this policy, CIA employees must
also sign an agreement as a condition of
employment, agreeing “to submit for review by the
[CIA] any writing or other preparation in any form,
including a work of fiction, which contains any
mention of intelligence data or activities, or contains
7a
any other information or material that might be
based on” classified information or information the
author knows is “in the process of a classification
determination.” The agreement explains that
prepublication review is meant to give the CIA “an
opportunity to determine whether the information
or material ... contains any” classified information
the employee received in the course of employment,
which the employee, by signing the agreement, has
“agreed not to disclose.” The term of the agreement
is indefinite.
The DoD: Current, former, and retired DoD
employees, contractors, and military service
members who have had access to DoD information
and facilities must submit for prepublication review
“[a]ny official DoD information intended for public
release that pertains to military matters, national
security issues, or subjects of significant concern to
the DoD.” DoD Instruction 5230.09, Clearance of
DoD Information for Public Release § 1.2(b) (Jan. 25,
2019); Frequently Asked Questions for Security and
Policy Reviews of Articles, Manuscripts, Books, and
Other Media Prior to Public Release, DoD (Mar.
2012), https://perma.cc/5AH3-S3RV. “Official DoD
information” is defined as “information that is in the
custody and control of the DoD, relates to
information in the custody and control of the DoD,
or was acquired by DoD personnel as part of their
official duties or because of their official status
within DoD.” DoD Instruction 5230.09, glossary §
G.2. And prepublication review is defined as “[t]he
process by which information ... is examined ... for
compliance with established national and DoD
policies and to determine whether it contains any
8a
classified, export-controlled[,] or other protected
information.” Id. DoD policy explains that “[t]he
public release of official DoD information is limited
only as necessary to safeguard information
requiring protection in the interest of national
security or other legitimate government interest.”
Id. § 1.2(d). For former employees, prepublication
review is meant “to ensure that information” they
“intend to release to the public does not compromise
national security as required by their nondisclosure
agreements.” Id. § 1.2(g). DoD regulations also
provide that “security review protects classified
information, controlled unclassified information, or
unclassified information that may individually or in
aggregate lead to the compromise of classified
information or disclosure of operation security.” DoD
Instruction 5230.29, Security and Policy Review of
DoD Information for Public Release, enclosure 3 § 1
(Apr. 14, 2017). The DoD advises authors to submit
papers and articles “at least 10 working days” before
the anticipated publication date and manuscripts
and books “at least 30 working days” in advance. Id.
enclosure 3 § 3(a)(2), (4). Dissatisfied authors are
authorized to appeal within the DoD. Id. enclosure 3
§ 4(b).
The NSA: Current and former NSA employees
acting in a private capacity may publish materials
using information that is “unclassified and approved
for public release,” but they must submit proposed
materials for prepublication review where
“compliance with” that requirement “is in doubt.”
NSA/CSS Policy 1-30, Review of NSA/CSS
Information Intended for Public Release, §§ 2, 6(b),
10(a) (May 12, 2017) (cleaned up); see also id. § 30
9a
(defining prepublication review as “[t]he overall
process to determine that information proposed for
public release contains no protected information”);
50 U.S.C. § 3605(a) (providing, subject to certain
exceptions, that no law “shall be construed to require
the disclosure of the organization or any function of
the National Security Agency, or any information
with respect to the activities thereof, or of the
names, titles, salaries, or number of the persons
employed by such agency”). The NSA sets for itself a
25-day goal for reviewing a proposed publication.
NSA/CSS Policy 1-30 § 6(b)(7). Dissatisfied authors
are authorized to appeal within the NSA. Id. § 7.
The ODNI: ODNI regulations require current
and former ODNI employees to submit any
“publication that discusses the ODNI, the
[Intelligence Community], or national security” to
the ODNI for prepublication review. ODNI
Instruction 80.04, Rev. 2, ODNI Pre-Publication
Review of Information to be Publicly Released §§ 4, 6
(Aug. 9, 2016). “The goal of prepublication review is
to prevent the unauthorized disclosure of
information, and to ensure the ODNI's mission and
the foreign relations or security of the U.S. are not
adversely affected by publication.” Id. § 3. The ODNI
thus reviews submitted materials “to safeguard
sensitive intelligence information and prevent its
unauthorized publication.” Id. § 6; see 50 U.S.C. §
3024(i)(1) (“The Director of National Intelligence
shall protect intelligence sources and methods from
unauthorized disclosure”). The ODNI's policy is to
“complete a review of non-official publication
requests no later than 30 calendar days from the
receipt of the request, as priorities and resources
10a
allow.” ODNI Instruction 80.04 § 6(C)(2)(b).
Dissatisfied authors are authorized to appeal within
the ODNI. Id. § 6(E). Consistent with this policy,
ODNI employees also sign an ODNI-specific
nondisclosure agreement as a prerequisite for
accessing classified information that is materially
identical to the CIA's secrecy agreement.
All four agencies also authorize referrals of
proposed publications to other agencies that have
equities at stake in a proposed disclosure.
In addition to these agency-specific policies, the
plaintiffs’ complaint describes various nondisclosure
agreements that employees are required to sign as a
condition of accessing classified or sensitive
information. Thus, when an employee signs
Standard Form 312, entitled “Classified Information
Nondisclosure Agreement,” the employee agrees to
“never divulge classified information to anyone”
unless the employee has “officially verified that the
recipient has been properly authorized ... to receive
it” or has “been given prior written notice of
authorization ... that such disclosure is permitted.”
The employee also agrees “to comply with laws and
regulations that prohibit the unauthorized
disclosure of classified information.” And when an
employee signs Standard Form 4414, entitled
“Sensitive
Compartmented
Information
Nondisclosure Agreement,” which applies to
employees who need access to SCI, the employee
agrees similarly to “never divulge” SCI “to anyone
who is not authorized to receive it without prior
written authorization.” The employee also agrees to
“submit for security review,” by the agency that
11a
granted the employee SCI access, “any writing or
other preparation in any form, including a work of
fiction, that contains or purports to contain any SCI
or description of activities that produce or relate to
SCI or that [the employee] ha[s] reason to believe are
derived from SCI.” Both of these nondisclosure forms
impose obligations that apply during employment
“and at all times thereafter.” Other general or
agency-specific agreements referred to in the
complaint, such as Form 313 and DD Form 1847-1,
contain similar provisions.
In common, all four defendant agencies require
— whether by policy, regulation, agreement, or a
combination of them — that all current and former
employees submit to the agency materials that they
intend to publish to give the agency the opportunity
to require redaction of classified or sensitive
information. This prepublication review process may
be analogized to a funnel. At the top end, a broad
scope of materials intended for publication is called
for and entered into the review process — materials
that might contain classified or sensitive
information. And at the bottom end, only a narrow
scope of materials is selected for redaction —
materials that actually contain classified or
sensitive information.
I.
The plaintiffs are five former employees of three
of the four defendant agencies. Because they alleged
that the prepublication review process at these
agencies is facially unconstitutional, their personal
experiences with the publication of agency-related
12a
materials in the past — which are detailed at some
length in the complaint — are mostly relevant only
to determine the plaintiffs’ standing and the
ripeness of their action (which the agencies
challenge in this case).
Plaintiff Timothy Edgar was an ODNI employee
from 2006 to 2013 and held a Top Secret/SCI
clearance. In October 2016, Edgar submitted a
manuscript for his book Beyond Snowden: Privacy,
Mass Surveillance, and the Struggle to Reform the
NSA to the ODNI for review. The ODNI referred the
manuscript to both the CIA and the NSA for
additional review, and review was completed in
January 2017. 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
alleged that he plans to continue writing in this field
and “anticipates submitting at least some”
publications for review, but he also alleged that the
review requirement “has dissuaded him from
writing some pieces that he would have otherwise
written[ ] and has caused him to write others
differently than he would otherwise have written
them.”
Plaintiff Richard Immerman was an ODNI
employee from 2007 to 2009 and held a Top
13a
Secret/SCI clearance. In January 2013, he
submitted a manuscript for the book The Hidden
Hand: A Brief History of the CIA to the ODNI's
prepublication review office. The ODNI referred the
manuscript to the CIA, and review was completed in
July 2013. Immerman alleged that some of the
proposed redactions “related to information that had
been published previously by government agencies”;
that other redactions related to public information;
and that several others “related to events that had
taken place, or issues that had arisen, after [he] had
left government.” Immerman appealed those
redactions within the ODNI, and the ODNI
“informed him that he could publish a significant
portion of the” redacted text, and the CIA agreed
that “some of the [proposed] redactions were
unnecessary.” Immerman thereafter published his
book, which included “roughly eighty percent of the
material that the agencies had originally redacted.”
Immerman alleged that he plans to submit more
articles and books in this field and that he “would
publish more” if it were not for the “burdens and
uncertainties associated with prepublication
review.”
Plaintiff Melvin Goodman was a CIA employee
from 1966 to 1990 and held a Top Secret/SCI
clearance. Upon joining the CIA, he signed the
standard secrecy agreements. Since leaving the CIA,
he “has published nine books and has submitted
each manuscript to the CIA for prepublication
review.” While the review process “typically took less
than two months,” “the CIA took eleven months to
review a manuscript of his latest book,
Whistleblower at the CIA.” Goodman “believes that
14a
all of the” CIA's “changes ... were intended to spare
the agency embarrassment, not to protect classified
information.” Moreover, Goodman alleged that some
of the redactions concerned “widely reported aspects
of U.S. government policy.” As Goodman also
alleged, he “intends to submit” for review “those
portions of any future manuscripts that deal with
intelligence matters,” but he worries that the CIA
“will demand that he redact material unwarrantedly
... and that the delay associated with prepublication
review will jeopardize his book contracts and render
his publications less relevant to quickly evolving
public debates.”
Plaintiff Anuradha Bhagwati is a former Marine
Corps officer who was cleared to receive Secret
information. She recently published Unbecoming: A
Memoir of Disobedience, “a memoir that centers on
her confrontation of misogyny, racism, and sexual
violence in the military, as well as her advocacy on
related issues after leaving the Marines.” Bhagwati,
however, did not submit that book for prepublication
review and “has no plans to submit any future work
to prepublication review.” But she alleged that she
remains concerned that the DoD might sanction her
for failing to submit her work for review.
Plaintiff Mark Fallon is a former employee of the
DoD and other agencies who held Top Secret and
Top Secret/SCI clearances. In January 2017, Fallon
submitted a manuscript of his book Unjustifiable
Means to the DoD's prepublication review office, and
review was completed in August 2017. Fallon
alleged that the proposed redactions were “intended
to protect the CIA from embarrassment” and that
15a
“[s]ome of them related to material that had been
published in unclassified congressional reports.”
Fallon also alleged that “he is unsure whether he is
willing to embark on writing on another book” and
“has declined offers to author op-eds and write
articles on topics of public concern” because of
“potential delays and unjustified objections by the
agency.” He has, however, recently “submitted
numerous shorter works” and a book chapter for
review.
While the plaintiffs have alleged their personal
circumstances, they do not challenge the application
of prepublication review to any specific work.
Rather, their complaint alleged that facially the
prepublication review “regime” of each agency is “a
far-reaching system of prior restraints that
suppresses a broad swath of constitutionally
protected speech, including core political speech, by
former government employees.” After describing the
regimes in some detail, their complaint concluded:
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.
Also that:
Defendants’ prepublication review
regimes are void for vagueness under
the First and Fifth Amendments
16a
because they fail to provide former
government employees with fair notice
of what they must submit for
prepublication review and of what they
can and cannot publish, and because
they
invite
arbitrary
and
discriminatory enforcement.
For relief, the plaintiffs sought a declaratory
judgment that the defendants’ “prepublication
review regimes violate the First and Fifth
Amendments to the Constitution”; an injunction
prohibiting the defendants “from continuing to
enforce [their] prepublication review regimes
against Plaintiffs, or any other person”; and costs
and attorneys fees.
The defendant agencies filed a motion to dismiss
the complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), contending (1) that
the plaintiffs lacked standing as required by Article
III of the Constitution; (2) that the plaintiffs’ claims
were unripe; and (3) that, in any event, the plaintiffs
failed to state a claim under either the First or Fifth
Amendment.
The district court rejected the agencies’
arguments for dismissal based on a lack of standing
or ripeness. The court held that the plaintiffs had
standing because they plausibly alleged that the
defendant agencies’ prepublication review regimes
had “a chilling effect on protected speech.” Edgar v.
Coats, 454 F. Supp. 3d 502, 523, 525–27 (D. Md.
2020). And it ruled that the plaintiffs’ claims were
ripe because they were challenging policies to which
17a
they “are currently subject ... that they reasonably
allege require them to self-censor.” Id. at 530. But
the court granted the agencies’ motion to dismiss on
the merits, concluding that the plaintiffs had failed
to state a plausible claim. The court explained that
prepublication review regimes are not classic prior
restraints and are instead consistent with the First
Amendment so long as they are “reasonable.” Id. at
530–32 (quoting Snepp, 444 U.S. at 509 n.3). It found
that “Plaintiffs have failed to demonstrate that the
regimes do not meet” that “low threshold.” Id. at 537.
The court also rejected the plaintiffs’ vagueness
claim, noting that the plaintiffs’ primary issue with
the regimes’ submission requirements “is their
breadth rather than any difficulties Plaintiffs have
in understanding what they require.” Id. at 539. The
court then parsed the agencies’ separate
prepublication review regimes and concluded that
they “appear to set out reasonable limitations and
guidance” for reviewers. Id. at 541.
From the district court's order of dismissal dated
April 16, 2020, the plaintiffs filed this appeal.
II.
We address first our jurisdiction, which the
defendant agencies have challenged in arguing that
the plaintiffs lack Article III standing to bring their
action and that the issues are not ripe for
adjudication. The district court rejected both
arguments, and for substantially the same reasons
given by the district court, we affirm its rulings on
these issues.
18a
A.
The defendant agencies contend first that the
district court erred in finding standing. On that
issue, the court concluded that the plaintiffs
“plausibly
alleged
that
features
of
the
[prepublication review] regimes result in a chilling
effect on the exercise of First Amendment rights”
and therefore “have made a sufficient showing of an
injury in fact to proceed.” Edgar, 454 F. Supp. 3d at
527. The defendants argue, however, that the
“Plaintiffs fail[ed] to show that the challenged
features of defendants’ policies would cause any
objectively reasonable chill,” as necessary to
establish the injury-in-fact element for establishing
Article III standing.
Article III's standing requirement centers “on
whether the party invoking jurisdiction had the
requisite stake in the outcome when the suit was
filed.” Davis v. FEC, 554 U.S. 724, 734 (2008). At this
stage, a party has such a stake when it is able to
plausibly allege “(1) an injury in fact, (2) a sufficient
causal connection between the injury and the
conduct complained of, and (3) a likelihood that the
injury will be redressed by a favorable decision.”
Susan B. Anthony List v. Driehaus, 573 U.S. 149,
157–58 (2014) (cleaned up). These requirements are,
however, “somewhat relaxed in First Amendment
cases,” given that even the risk of punishment could
“chill[ ]” speech. Cooksey v. Futrell, 721 F.3d 226, 235
(4th Cir. 2013); see also Sec'y of State of Md. v.
Joseph H. Munson Co., 467 U.S. 947, 956 (1984).
Thus, “[i]n First Amendment cases, the injury-infact element is commonly satisfied by a sufficient
19a
showing of ‘self-censorship, which occurs when a
claimant is chilled from exercising his right to free
expression.’ ” Cooksey, 721 F.3d at 235 (cleaned up)
(quoting Benham v. City of Charlotte, 635 F.3d 129,
135 (4th Cir. 2011)). But this chilling effect “must be
objectively reasonable.” Benham, 635 F.3d at 135
(cleaned up). In short, while plaintiffs need not show
that the government action led them to stop
speaking “altogether,” they must show that the
action would be “likely to deter a person of ordinary
firmness from the exercise of First Amendment
rights.” Id. (cleaned up).
Here, the plaintiffs asserted that the vagueness
and breadth of the defendants’ prepublication
review regimes required them “to submit far more
than [they] should be required to submit”; allowed
agency officials to “redact material unwarrantedly”;
and caused them to write some pieces “differently
than [they] would have otherwise written them.”
The plaintiffs further alleged that these infirmities,
together with the delays created by the defendants’
prepublication review regimes, have “dissuaded
[them] from writing some pieces” they “would have
otherwise written,” and have made it more difficult
to engage in “quickly evolving public debates.”
These are, we conclude, adequate allegations of
an “objectively reasonable” chill sufficient to show
that the defendants’ prepublication review regimes
are “likely to deter a person of ordinary firmness
from the exercise of First Amendment rights.”
Benham, 635 F.3d at 135 (cleaned up). Importantly,
some plaintiffs alleged that they have decided not to
write about certain topics because of the
20a
prepublication review policies. Such self-censorship
is enough “for an injury-in-fact to lie.” Cooksey, 721
F.3d at 236.
The plaintiffs’ allegations also satisfy the
causation and redressability elements of the
standing inquiry. See Susan B. Anthony List, 573
U.S. at 158. The chilling of the plaintiffs’ speech was
plainly alleged to have been caused by the particular
prepublication review regimes at issue here. As the
plaintiffs alleged, they would publish more but for
those regimes. See Cooksey, 721 F.3d at 238
(“[C]ausation is satisfied where a causal connection
between the injury and the conduct complained of ...
is fairly traceable, and not the result of the
independent action of some third party not before
the court” (cleaned up)). And there is more than “a
non-speculative likelihood that th[is] injury would
be redressed by a favorable judicial decision.” Id.
(cleaned up). A favorable decision on the plaintiffs’
behalf would deem the defendants’ regimes
unconstitutional and enjoin the defendants from
enforcing them.
Accordingly, we reject the defendant agencies’
argument that the plaintiffs lack Article III standing
to challenge the prepublication review regimes.
B.
On ripeness, the defendant agencies argue that
the plaintiffs’ claims are “paradigmatically unripe”
because they arise “in the absence of a concrete
factual dispute.” According to the defendants, courts
require a specific application of prepublication
21a
review to determine “whether plaintiffs’ treatment
has been unfair.” The defendants also contend that
requiring the plaintiffs “to litigate their claims in the
context of a concrete dispute” would not cause them
any material hardship; as they argue, the plaintiffs
“who are dissatisfied with the review decisions can
challenge them in court.”
“Like standing, the ripeness doctrine originates
in the ‘case or controversy’ constraint of Article III.”
South Carolina v. United States, 912 F.3d 720, 730
(4th Cir. 2019) (cleaned up). “The question of
whether a claim is ripe turns on the ‘fitness of the
issues for judicial decision’ and the ‘hardship to the
parties of withholding court consideration.’ ” Id.
(ultimately quoting Abbott Labs. v. Gardner, 387
U.S. 136, 149 (1967)). Thus, while standing
considers who may sue, ripeness considers when
they may sue. There is, however, “obvious overlap
between the doctrines.” Id. (cleaned up). And
“[m]uch like standing, ripeness requirements are
also relaxed in First Amendment cases.” Cooksey,
721 F.3d at 240.
The plaintiffs have challenged practices and
procedures to which they are currently subject and
which, they plausibly alleged, require them to selfcensor. These are legal issues for which no “further
factual development” is necessary. Va. Soc'y for
Hum. Life, Inc. v. FEC, 263 F.3d 379, 390 (4th Cir.
2001), overruled on other grounds by The Real Truth
About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir.
2012)). And deciding them does not require us to
interpret the agencies’ policies and regulations in
the “abstract”; we instead are called to decide what
22a
conduct the plaintiffs “can engage in without threat
of penalty.” Id. Therefore, their claims are fit for
judicial review. Moreover, the plaintiffs “will face a
significant impediment if we delay consideration of
the regulation's constitutionality.” Id. As the
plaintiffs allege, they are currently curbing their
speech in light of the defendants’ prepublication
review regimes. See Cooksey, 721 F.3d at 240 (“First
Amendment rights are particularly apt to be found
ripe for immediate protection, because of the fear of
irretrievable loss” (cleaned up)). Thus, the plaintiffs
have adequately demonstrated that refusing to
reach their claims would cause them material
hardship. For these reasons, we agree with the
district court and conclude that the plaintiffs’ claims
are ripe for adjudication.
III.
On the merits, the plaintiffs contend first that
the defendant agencies’ prepublication review
regimes — consisting of, as they characterize them,
a “confusing tangle of contracts, regulations, and
policies” — violate their First Amendment rights
because the regimes “invest executive officers with
sweeping discretion to suppress speech and fail to
include procedural safeguards designed to avoid the
dangers of a censorship system.” More particularly,
they argue that the regimes have overly broad and
confusing
submission
requirements;
include
“confusing, subjective, and overbroad” review
standards that “do not meaningfully limit [officials’]
censorship authority”; and lack “any definite
deadlines for decisions.”
23a
A.
Addressing first the employment agreements,
the complaint alleged that as part of the regimes
imposing prepublication review, the defendant
agencies require employees to sign one or more
forms of nondisclosure agreements “as a
prerequisite to accessing classified information.”
The complaint describes numerous standard forms,
including Form 312, Form 313, Form 4414, a
“standard CIA secrecy agreement,” and DD Form
1847-1, all allegedly containing employee promises
not to disclose classified or sensitive information
without prior authorization. The agreements make
clear that this is a continuing obligation, applicable
even after the employee leaves the agency.
Moreover, some of the agreements, particularly
Form 4414, describe the process of submitting
intended writings for prepublication review.
No plaintiff has alleged that he or she was
coerced into signing any agreement or was under
any duress in doing so. Indeed, no plaintiff even
contends that the agreements were, as contracts,
invalid. They challenged only the agreements’
contribution
to
the
implementation
of
“prepublication review,” which they contend violates
their First Amendment rights as an unlawful prior
restraint.
The Supreme Court, however, has already said
that such agreements are “not unenforceable as [ ]
prior restraint[s].” Snepp, 444 U.S. at 509 n.3.
Indeed, the Court has blessed a similar agreement
as a “reasonable means for protecting” the
24a
government's “compelling interest in protecting both
the secrecy of information important to our national
security and the appearance of confidentiality so
essential to the effective operation of our foreign
intelligence service.” Id. And we have held that in
signing such nondisclosure agreements, the
employee “effectively relinquishe[s] his First
Amendment rights” to the sensitive information
those agreements protect. Alfred A. Knopf, Inc. v.
Colby, 509 F.2d 1362, 1370 (4th Cir. 1975); see also
Wilson v. CIA, 586 F.3d 171, 183 (2d Cir. 2009)
(“[O]nce a government employee signs an agreement
not to disclose information properly classified
pursuant to executive order, that employee simply
has no first amendment right to publish such
information” (cleaned up)); Stillman v. CIA, 319
F.3d 546, 548 (D.C. Cir. 2003) (same).
Accordingly, by voluntarily signing these
agreements, the plaintiffs knowingly waived their
First Amendment rights to challenge the
requirement that they submit materials for
prepublication review and the stated conditions for
prepublication review. For the most part, that could
end the matter. Yet, because the plaintiffs challenge
the clarity of the stated conditions and their
interpretive scope, as well as the manner in which
the defendant agencies have implemented
prepublication review, such as its timeliness, we
turn to address the challenges that they make.
B.
In challenging prepublication review, the
plaintiffs identify four specific aspects that they
25a
claim render the defendants’ entire regimes
unconstitutional under the First Amendment. First,
they contend that the scope of matters subject to
prepublication review is too broad, “sweep[ing] in
virtually everything that former intelligence agency
employees might write about the government.”
Second, they contend that the scope of persons
subject to the submission requirements is too
expansive, applying to “all former employees — not
just those who had access to SCI.” Third, they
contend that the review standards are “confusing,
subjective, and overbroad,” allowing the defendants
“to censor information ... whether or not it was
obtained by the author in the course of employment;
... whether or not its disclosure would actually cause
harm; ... whether or not it is already in the public
domain; and ... whether or not the public interest in
its disclosure outweighs the government's interest in
secrecy.” And fourth, they contend that the
prepublication review process lacks firm or binding
deadlines, allowing for inappropriate delays.
At the outset, we reiterate that the plaintiffs are
mounting a facial challenge, meaning that their
claim is that the policies and regulations are
unconstitutional not as applied to their own conduct,
but rather, on their face, as they apply to the
population generally. United States v. Miselis, 972
F.3d 518, 530 (4th Cir. 2020). Such facial challenges
“are disfavored” because they “run contrary to the
fundamental principle of judicial restraint that
courts should neither anticipate a question of
constitutional law in advance of the necessity of
deciding it nor formulate a rule of constitutional law
broader than is required by the precise facts to
26a
which it is to be applied.” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450
(2008) (cleaned up). Accordingly, facial challenges
typically require “a showing that no set of
circumstances exists under which the [law] would be
valid, i.e., that the law is unconstitutional in all of
its applications, or that the statute lacks any plainly
legitimate sweep.” Miselis, 972 F.3d at 530 (cleaned
up). But given the “fear of chilling protected
expression,” id., a facial challenge to a law on the
ground that it is overbroad under the First
Amendment can be successful “if a substantial
number of its applications are unconstitutional,
judged in relation to the statute's plainly legitimate
sweep,” United States v. Stevens, 559 U.S. 460, 473
(2010) (emphasis added) (cleaned up).
The relevant constitutional standard that we
must apply in addressing this facial challenge
derives from Snepp. That case concerned the remedy
available to the CIA when a former agent, who
agreed to prepublication review upon joining the
CIA, nonetheless published a book about certain CIA
activities without submitting it for prepublication
review. Snepp, 444 U.S. at 507–08. The Court held
that the agent's profits from the book should be
subject to a constructive trust in favor of the CIA. Id.
at 509–10. And, as critical here, in conducting its
analysis, the Court rejected the agent's argument
that the agreement was an unconstitutional prior
restraint. It explained that the government can
“impos[e] reasonable restrictions on employee
activities that in other contexts might be protected
by the First Amendment.” Id. at 509 n.3. And the
nondisclosure
agreement
that
included
27a
prepublication review was, the Court held, a
“reasonable means for protecting” the government's
“compelling interest in protecting both the secrecy of
information important to our national security and
the appearance of confidentiality so essential to the
effective operation of our foreign intelligence
service.” Id.
Snepp’s analysis amounted, at its core, to an
application of a reasonableness test that balances
“the interests of the [employee], as a citizen, in
commenting upon matters of public concern” with
“the interest of the [government], as an employer, in
promoting the efficiency of the public services it
performs through its employees.” Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968); see also Weaver v.
U.S. Info. Agency, 87 F.3d 1429, 1439 (D.C. Cir.
1996) (noting that the Snepp Court “essentially
applied Pickering”). And when this reasonableness
test is applied to a regulation that operates as a prior
restraint on employee speech, 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.” United
States v. Nat'l Treasury Employees Union, 513 U.S.
454, 468 (1995) (quoting Pickering, 391 U.S. at 571).
Because Snepp determined that the government
has a “compelling interest” in the secrecy of
information important to national security, the
question in this case reduces to whether the
defendant agencies’ prepublication review regimes
28a
are a reasonable and effective means of serving that
interest.
First, with respect to the plaintiffs’ argument
that the scope of materials subject to prepublication
review is overly broad and therefore not reasonable
in serving the government's interest, it is true that
the defendants’ submission standards do cover a
broad range of materials. But this is necessary to
serve the government's compelling interest because
the aim of prepublication review is, as the parties
agree, to prevent the inadvertent disclosure of
sensitive information. Thus, the scope of materials
subject to review must include materials that might
contain, reveal, or confirm classified or sensitive
information. And that is what the defendants’
submissions standards do.
The CIA requests all material that “mentions
CIA or intelligence data or activities on any subject
about which the author has access to classified
information.” CIA AR 13-10 § 2(e)(1). The DoD, all
material containing “official DoD information ... that
pertains to military matters, national security
issues, or subjects of significant concern to the DoD.”
DoD Instruction 5230.09 § 1.2(b). The NSA, any
material that may not adhere to the NSA's
requirement that employees not publish classified
information or information not approved for public
release. NSA/CSS Policy 1-30 §§ 2, 6(b), 10(a). And
the ODNI requires that employees submit any
“publication that discusses the ODNI, the
[Intelligence Community], or national security.”
ODNI Instruction 80.04 § 6.
29a
Distilled to their essence, these submission
standards are designed to reach materials that
reasonably could reveal classified information or
information sensitive to the national security and
thus are reasonably tied to the goal of avoiding the
inadvertent disclosure of such information. And
importantly, the scope of materials subject to review
is not the same as the scope of materials that may
not be published. The scope of materials for review
simply identifies materials that are subject to the
process. We conclude that these submission
requirements are not overly broad.
Second, with respect to the plaintiffs’ contention
that the scope of persons covered by the submission
is overly broad, we reject the argument for similar
reasons. The requirement — that all current and
former employees who have had access to certain
types of information are covered by the policy — is
reasonably tied, indeed necessary, to the
government's interest. This is just another way of
ensuring that certain types of information are not
inadvertently disclosed. For instance, a low-level
employee in a security agency who has received no
clearances yet becomes aware of information that, if
published, could lead to the disclosure of classified
information presents the same interests justifying
prepublication review as an employee with proper
clearance. Because the scope of persons subject to
review is cabined by the definition of the materials
subject to review, it is therefore not unreasonable.
Third, the plaintiffs’ argument that the
standards for redaction are overly vague and broad
is belied by the text of the policies and regulations,
30a
all of which are geared to the redaction of classified
information, information that is otherwise restricted
or could lead to the disclosure of classified
information, or information that the agencies are
under a statutory requirement to protect. See CIA
AR 13-10 § 2(f)(2) (“classified information”); DoD
Instruction 5230.09 § 1.2(g) (“information” that
“compromise[s] national security” in violation of the
employees’ “nondisclosure agreements”); id. glossary
§ G.2 (“classified, export-controlled or other
protected information”); DoD Instruction 5230.29,
enclosure 3 § 1 (“classified information, controlled
unclassified information, or unclassified information
that may individually or in aggregate lead to the
compromise of classified information or disclosure of
operation security”); NSA/CSS Policy 1-30 §§ 2, 6(b),
10(a) (classified information or information not
approved for public release); ODNI Instruction 80.04
§ 6 (“sensitive intelligence information”).
While the plaintiffs claim that the scope of
redaction authority includes information that was
not obtained by the author in the course of his or her
employment or information that is already in the
public domain, those circumstances do not render
unreasonable the criteria focused on classified or
otherwise sensitive material. The plaintiffs all
enjoyed positions of trust in the government,
involving national security, and were granted access
to classified or otherwise sensitive information while
so employed. By virtue of those positions, the public
is likely to view such officials as speaking with
authority — indeed it is often because of that
authority that former officials engage in public
discussions about governmental affairs at all. But,
31a
as we have explained, “[i]t is one thing for a reporter
or author to speculate or guess that a thing may be
so or even, quoting undisclosed sources, to say that
it is so; it is quite another thing for one in a position
to know of it officially to say that it is so.” Alfred A.
Knopf, Inc., 509 F.2d at 1370. That is because an
official's repetition of information that is already in
the public domain but not yet unclassified, or his
speaking on information that is classified but postdates his time in the respective agency, “lend[s]
credence” to that information and could, in the eyes
of the public, confirm the existence of such classified
information. Id. Such confirmation, of course, can be
as good as official disclosure to those who are paying
attention.
Fourth and finally, we conclude that the
plaintiffs’ argument that the defendants’ policies
and regulations fail to establish firm or binding
deadlines for the review — thereby unreasonably
chilling speech — lacks merit in the circumstances
presented. We recognize that a drawn-out process
“might delay constitutionally protected speech to a
time when its only relevance was to historians.”
Weaver, 87 F.3d at 1441 (citing FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 228 (1990)). But considering
the policies and regulations facially, as the plaintiffs
request, the regimes here fix target timelines for
review. Moreover, the plaintiffs’ allegations do not,
on the whole, indicate that the agencies failed to
abide by these timelines. Instead, the plaintiffs
pointed to a few specific book-length manuscripts
that the defendants allegedly failed to review in a
timely manner. But even if the time periods for those
reviews were inappropriately long — something we
32a
do not reach — those few allegations do not suffice
to find the policies and regulations unconstitutional
across the board. See Stevens, 559 U.S. at 472–73.
At bottom, we conclude that the defendant
agencies’ prepublication review regimes are a
reasonable means of serving the government's
compelling interest in keeping classified or
otherwise sensitive information secret, and
therefore they do not violate the plaintiffs’ First
Amendment speech rights.
IV
The plaintiffs also contend that the defendant
agencies’ prepublication review regimes are
unconstitutionally vague under the Due Process
Clause, as well as the First Amendment, because, as
they argue, the regimes “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.”
A fundamental component of due process is that
“laws which regulate persons or entities must give
fair notice of conduct that is forbidden or required.”
FCC v. Fox Television Stations, Inc., 567 U.S. 239,
253 (2012); see also Manning v. Caldwell, 930 F.3d
264, 272 (4th Cir. 2019) (en banc). And a regulation
that “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages
seriously
discriminatory
enforcement,”
is
impermissibly vague and must therefore be
33a
invalidated. Fox Television, 567 U.S. at 253 (cleaned
up); see also Manning, 930 F.3d at 272. “These twin
concerns of inadequate notice and arbitrary or
discriminatory
enforcement
are
especially
pronounced” when a regulation implicates speech
“because ambiguity inevitably leads citizens to steer
far wider of the unlawful zone than if the boundaries
were clearly marked, thereby chilling protected
speech.” Miselis, 972 F.3d at 544 (cleaned up); see
also In re Murphy-Brown, LLC, 907 F.3d 788, 800
(4th Cir. 2018). That said, however, “perfect clarity
and precise guidance have never been required even
of regulations that restrict expressive activity.”
Miselis, 972 F.3d at 544 (quoting United States v.
Williams, 553 U.S. 285, 304 (2008)).
The plaintiffs argue first that the defendant
agencies’ prepublication review regimes do not give
them adequate notice of what must be submitted for
review, advancing essentially the same reasons that
they advanced for contending that the regimes
violate the First Amendment. But in doing so, they
focus more particularly on the use of “terms such as
‘relates to,’ ‘pertains to,’ ‘subjects of significant
concern,’ and ‘might be based upon,’ ” which they
argue are “ambiguous terms” that “force former
employees to guess at whether they must submit
their speech for review.”
This argument, however, misses the forest for the
trees. To be sure, terms such as “pertains to” and
“might be based upon” do result in broad submission
standards, the exact contours of which could be hazy
in the abstract. Indeed, there even may be “close
cases” at the extreme edges, but close cases do not
34a
make a regulation vague. Williams, 553 U.S. at 306;
see also Bruce & Tanya & Assocs., Inc. v. Bd. of
Supervisors, No. 19-1151, 2021 WL 1854750, at *6
(4th Cir. May 10, 2021) (“[D]ue process demands a
measure of clarity, not exactitude”). But crucially,
these abstract terms are all anchored to discrete and
identifiable categories of information, thereby
narrowing the scope of submission in such a way
that employees of ordinary intelligence would know
what needs to be submitted. See Williams, 553 U.S.
at 304, 306. To take just one example, the DoD
requires the submission of materials containing
“official DoD information ... that pertains to military
matters, national security issues, or subjects of
significant concern to the DoD.” DoD Instruction
5230.09 § 1.2(b) (emphasis added). Given that the
goal of prepublication review is to prevent the
accidental disclosure of information sensitive to the
national security, requiring former employees of
national-security and intelligence agencies to
submit materials that, for instance, “pertain to” the
national security is a sufficiently “sensible basis for
distinguishing what” must be submitted for review
and what can be published immediately. Minn.
Voters Alliance v. Mansky, 138 S. Ct. 1876, 1888
(2018).
The plaintiffs also argue that the defendants’
“censorship standards” for deciding what to redact
“fail to provide ‘explicit standards for those who
apply them,’ inviting ‘arbitrary and discriminatory
enforcement.’ ” (Quoting Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972)). But this
argument is largely a repackaging of the plaintiffs’
First Amendment argument, and we reject it for the
35a
same reasons, i.e., because all the defendants’
redaction standards are guided by whether material
discloses classified information or otherwise
sensitive information. Most of the categories of
restricted
information
are
binary:
Either
information is classified or it is not; either it is
“controlled” or it is not; and it has either been
“approved for public release” or it has not. And the
few standards that are not binary provide
“meaningful guidance” to reviewers. Manning, 930
F.3d at 275. For example, the DoD can restrict the
publication of “unclassified information” only if it
“may ... lead to the compromise of classified
information or disclosure of operation security.” DoD
Instruction 5230.29, enclosure 3 § 1. In short, the
defendants’ review standards “adequately define the
range of” information that cannot be published by
authors and accordingly provide sufficient guidance
to reviewers to prevent arbitrary censorship.
Miselis, 972 F.3d at 545.
At bottom, we hold that the defendants’
prepublication review regimes adequately define for
authors the types of materials that they must
submit for review and adequately establish for
reviewers the types of information that cannot be
published.
Accordingly,
they
are
not
unconstitutionally vague.
V.
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
36a
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.
Taking the defendant agencies’ policies and
regulations facially and as a whole, we therefore
conclude that the prepublication review regimes
37a
established by them do not violate the plaintiffs’
rights under the First and Fifth Amendments. The
judgment of the district court is accordingly
AFFIRMED.
38a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
Case No. GJH-19-985
TIMOTHY H. EDGAR, et al.,
Plaintiffs,
v.
DANIEL COATS, et al.,
Defendants.
MEMORANDUM OPINION
Former national security professionals Timothy
H. Edgar, Richard H. Immerman, Melvin A.
Goodman, Anuradha Bhagwati, and Mark Fallon
(“Plaintiffs”) bring this action against the Director of
National Intelligence, the Director of the Central
Intelligence Agency, the Secretary of Defense, and
the Director of the National Security Agency
(“Defendants”), challenging the constitutionality of
the agencies’ prepublication review (“PPR”)
regimes, which require current and former
employees to submit materials they intend to
publish to the agencies if they concern certain
subjects. The Complaint, ECF No. 1, alleges that the
regimes are void for vagueness under the First and
Fifth Amendments and violate the First
39a
Amendment by investing the agencies with
excessive discretion to suppress speech and failing
to include necessary procedural safeguards.
Defendants have moved to dismiss the Complaint.
ECF No. 30. Also pending before the Court are a
motion by three Plaintiffs to omit their home
addresses from the caption in their Complaint, ECF
No. 8, and a third party's Motion for Leave to submit
an amicus brief, ECF No. 34. No hearing is
necessary. See Loc. R. 105.6 (D. Md.). For the
following reasons, all of the pending motions will be
granted and the action will be dismissed.
I.
BACKGROUND1
In reviewing the Complaint's allegations, the
Court first discusses each of the Plaintiffs before
turning to the structure and operation of
Defendants’ PPR regimes.
A.
Plaintiffs
Plaintiff Edgar, a Rhode Island resident, is a
cybersecurity expert who was employed by the Office
of the Director of National Intelligence (the “ODNI”)
from 2006 until his resignation in June 2013. ECF
No. 1 ¶¶ 56, 58. At various points during his time at
ODNI, Edgar served in roles including Deputy for
Civil Liberties and Senior Associate General
Counsel. Id. ¶ 58. In 2009 and 2010, he was detailed
to the White House National Security Staff as
1 Unless otherwise stated, these facts are taken from the
Complaint, ECF No. 1, and are presumed to be true.
40a
Director of Privacy and Civil Liberties. Id. After
signing a nondisclosure agreement with the ODNI,
Edgar
obtained
a
Top
Secret/Sensitive
Compartmented Information (“TS/SCI”) security
clearance in 2006, which he held continuously until
June 2013. Id. ¶ 59.
During his employment, Edgar submitted for
PPR official material prepared for public
appearances he made on behalf of the government
and syllabi for Brown University and Georgetown
University Law Center courses he taught in 2012
and 2013. Id. ¶ 60. Since his departure from the
agency, Edgar has submitted to the ODNI blog posts
and op-eds that have appeared in major
publications, including the Guardian, the Los
Angeles Times, and the Wall Street Journal, and on
the Lawfare national security blog. Id. ¶ 61. On
October 10, 2016, Edgar submitted to the ODNI's
PPR office a book manuscript entitled Beyond
Snowden: Privacy, Mass Surveillance, and the
Struggle to Reform the NSA. Id. ¶ 62. Some portions
of the manuscript were based on his personal
experiences, but Edgar relied on and cited
declassified documents “for pertinent details.” Id.
After Edgar submitted the manuscript, the
ODNI informed him that it was referred to the
Central Intelligence Agency (“CIA”) and the
National Security Agency (“NSA”) for additional
review. Id. ¶ 63. Edgar was unable to communicate
directly with reviewing officials at those agencies
despite multiple inquiries. Id. On January 12, 2017,
the ODNI informed Edgar that he could publish the
manuscript only if he redacted or excised certain
41a
material. Id. ¶ 64. Some of the redactions related to
events that had taken place or issues that had arisen
after Edgar had left government, while others
related to facts that were widely discussed and
acknowledged if not officially confirmed. Id.
Edgar disagreed with some of the redactions but
decided not to challenge them. Id. He had already
delayed his publication date, partly because of the
three-month PPR process, and worried that delaying
it further would make some of the analysis and
insights in his book outdated or less relevant to
ongoing public debates. Id. He also sought to
maintain a good relationship with the ODNI
reviewers because of concerns that future
publications would be subject to greater delays if he
did not. Id. In the future, Edgar plans to continue
writing about intelligence and cybersecurity matters
and anticipates submitting at least some of these
materials for PPR. Id. ¶ 65. He expects that any
manuscripts he submits may be referred to the NSA,
CIA, or other agencies, as happened with Beyond
Snowden, which has now been published. Id.
Edgar believes that the ODNI's PPR regime
requires him to submit an excessive amount of
material and finds the agency's submission
requirements to be vague and confusing, leaving him
uncertain of the exact scope of his submission
obligations. Id. ¶ 66. He fears that the delay
associated with PPR will hinder his career as an
academic and impede his ability to participate
effectively in public debates on matters involving his
area of expertise. Id. He further alleges that the
delay and uncertainty associated with PPR has
42a
dissuaded him from writing some pieces that he
otherwise would have written and caused him to
write others differently than he otherwise would
have. Id. Finally, he believes that the ODNI, CIA,
and NSA might have taken longer to review his book
if they had perceived it to be unsympathetic to the
intelligence community. Id. He is also concerned
that “government censors will be less responsive to
him if he writes books that are perceived to be
critical.” Id.
Plaintiff Immerman, a Pennsylvania resident, is
a historian with expertise in U.S. foreign relations
who retired in 2017 after holding a series of
distinguished academic posts. Id. ¶¶ 67–68. From
2007 to 2009, he took leave from his faculty position
at Temple University to serve at the ODNI as the
Assistant Deputy Director of National Intelligence,
Analytic Integrity and Standards, and as the
agency's Analytic Ombudsman. Id. ¶ 69. After
signing a nondisclosure agreement with the ODNI,
Immerman obtained TS/SCI clearance in 2007. Id. ¶
71. In 2009, shortly after returning to Temple,
Immerman accepted an invitation to serve on the
U.S. Department of State's Advisory Committee on
Historical Diplomatic Documentation (referred to as
the “HAC”), of which he became chairman in 2010.
Id. ¶ 70. In 2011 or 2012, Immerman signed a
nondisclosure agreement with the CIA related to his
HAC responsibilities. Id. ¶ 71.
Since leaving the ODNI, Immerman has
submitted book manuscripts, articles, papers, public
talks, and academic syllabi to the agency for PPR.
Id. ¶ 72. On January 25, 2013, Immerman emailed
43a
to the ODNI's PPR office a manuscript entitled The
Hidden Hand: A Brief History of the CIA. Id. ¶ 73.
The manuscript did not directly or indirectly refer to
any classified information that Immerman obtained
while employed with the ODNI or Department of
State and cited public sources for all factual
propositions. Id. The ODNI acknowledged receipt
three days after Immerman's email. Id. ¶ 74. Nearly
three months later, Immerman was informed that
the agency had referred part of the manuscript to
the CIA for additional review. Id. Several weeks
after that, the ODNI informed him that the CIA was
reviewing the entire manuscript. Id. Immerman
contacted the CIA but was unable to obtain
information about the review. Id.
On July 12, 2013, the ODNI informed Immerman
that he could publish the manuscript only with
extensive redactions mandated by the CIA, all of
which related to information for which Immerman
had cited public sources. Id. ¶ 75. Some redactions
related to information that government agencies
including the CIA had published previously, and
many related to events that had taken place or
issues that had arisen after Immerman left
government. Id. In some instances, the ODNI
directed Immerman to excise citations to newspaper
articles, while in others the ODNI directed
Immerman to delete passages relating to
information he had obtained from public sources,
including information about the CIA's use of drones.
Id. The ODNI also instructed him to redact words
communicating judgments and arguments he
considered fundamental to his conclusions as a
trained historian. Id. The agency did not provide
44a
Immerman with any explanation for the mandated
redactions. Id. ¶ 76.
Immerman
appealed
the
PPR
office's
determination to the agency's Information
Management Division, which several weeks later
informed him that he could publish a significant
portion of the text that the PPR office had directed
him to redact. Id. ¶ 77. In September 2013,
Immerman was able to meet with two reviewing
officials from the CIA. Id. ¶ 78. The officials agreed
with Immerman that some of the redactions were
unnecessary and authorized him to publish
additional text with revised wording but reaffirmed
their view that other redactions were required. Id. ¶
78. Immerman disagreed but decided to proceed
with publishing with the redactions in place to avoid
further delay. Id. The draft that was eventually
published, after a ten-month review process,
included approximately eighty percent of the
material that the agencies had originally redacted.
Id.
Immerman plans to continue publishing articles,
books, and op-eds, some of which will trigger his
PPR obligations under the ODNI's regime. Id. ¶ 79.
At the time the Complaint was filed, Immerman was
drafting an academic article on the influence of
intelligence on the policymaking process and was
conducting research on the contribution of
intelligence to negotiations on strategic arms
limitation from the Nixon through Reagan
administrations, on which he intends to write a book
that he will submit for PPR. Id. Immerman asserts
that he would publish more “[b]ut for the
45a
dysfunction of the [PPR] system.” Id. ¶ 80. He
believes that the regime requires submission of far
more material than should be required, that the
ODNI's and CIA's “arbitrary and unjustified
redactions” will diminish the value of the work he
submits, and that the time required for review will
make it more difficult for him to contribute to public
debates in a timely way. Id. Finally, he has been
dissuaded by “[c]oncerns about the burdens and
uncertainties associated” with PPR from writing
academic articles and op-eds about research he has
conducted for his book and the intelligence
community and current administration. Id.
Plaintiff Goodman, a Maryland resident, is an
expert on the former Soviet Union who spent 42
years in government, including 34 years at the CIA's
Directorate of Intelligence on Soviet Foreign Policy
and as a professor of international security at the
National War College. Id. ¶¶ 81–82. Goodman held
a TS/SCI clearance until he left government in 2006.
Id. ¶ 83. When Goodman first joined the CIA in 1966
and gained his clearance, he signed a secrecy
agreement that included a provision relating to PPR.
Id. ¶ 84. Since leaving the CIA in 1986, Goodman
has submitted multiple works to the agency for PPR,
though in some cases he has not submitted shorter
pieces, including op-eds, that were time-sensitive
and that he was confident did not contain classified
information or other information he obtained during
his employment. Id. ¶¶ 82, 85–86. On at least six
occasions after publishing an op-ed, Goodman
received letters from the CIA reminding him of his
PPR obligations, including a 2009 letter threatening
to refer him to the Department of Justice. Id. ¶ 86.
46a
Goodman has published nine books and has
submitted each manuscript to the CIA for PPR. Id.
¶ 87. One of the manuscripts was referred to other
agencies for additional review, including the
Department of Defense (“DOD”) and the
Department of State. Id. Despite Goodman's
requests, the CIA declined to provide contact
information for reviewers at the other agencies, who
operated more slowly than the CIA. Id. In general,
the CIA has mailed Goodman's manuscripts back to
him with redactions, edits, and suggestions for
alternative language. Id. ¶ 88. Goodman has
frequently believed the CIA's redactions were
overbroad and unjustified and has often sent the
agency requests known as “reclamas” asking the
agency to reconsider their redactions and edits and
explaining why publication should be allowed. Id.
The PPR process has taken less than two months
for most of Goodman's books. Id. ¶ 89. In 2017,
however, the CIA took eleven months to review a
manuscript entitled Whistleblower at the CIA in
which Goodman provided an account of his
experience as a senior CIA analyst. Id. In part
because of the delay, Goodman's publisher at one
point threatened to cancel his contract. Id. All of the
changes to the manuscript that the CIA eventually
mandated, Goodman believes, were intended to
protect the agency from embarrassment rather than
to protect classified information. Id. ¶ 90. The
manuscript discussed aspects of U.S. policy,
including the use of armed drones overseas, of which
Goodman has no personal knowledge; his
commentary in the book was based on cited press
accounts. Id. The CIA demanded that Goodman not
47a
discuss these matters at all, however, and did not
provide a written explanation. Id. Goodman met
with a CIA official but was unable to persuade the
agency to reconsider and thus decided to remove the
passages to which the agency had objected. Id. ¶ 91.
Goodman recently submitted a manuscript in
which he alleges that he self-censored and avoided
discussing certain public source information about
current CIA Director and Defendant Gina Haspel.
Id. ¶ 92. Goodman learned the information at issue
as a member of the public but chose not to include it
in the manuscript to avoid delays and conflicts with
the CIA's PPR office. Id. ¶ 92. Consistent with his
past practice, Goodman intends to submit portions
of any future manuscripts that deal with intelligence
matters but remains concerned that the agency will
redact material unwarrantedly and that the PPR
delay will jeopardize his book contracts and render
his publications less relevant to evolving public
debates. Id. ¶ 93.
Plaintiff Bhagwati, a New York resident, is a
writer, activist, and former Marine Corps officer. Id.
¶ 94. Bhagwati obtained a Secret security clearance
in the early 2000s. Id. ¶¶ 95–96. As a former DOD
employee, Bhagwati is subject to the PPR
requirements imposed by multiple DOD policies. Id.
¶ 96. In March 2019, Bhagwati published a memoir
discussing her experiences with misogyny, racism,
and sexual violence during her military service, but
only learned of her PPR obligations on the eve of
publication through conversations with her counsel
in this action. Id. ¶¶ 94, 96, 98. She has also
published more than a dozen op-ed and opinion
48a
pieces about her experiences in the Marine Corps
and advocacy work she has performed on issues of
sexual assault and discrimination in the military.
Id. ¶ 97. She plans to continue her advocacy through
written publications and public appearances but has
no plans to submit any future work for PPR because
she is certain that her future publications will not
contain classified information. Id. ¶ 99.
Finally, Plaintiff Fallon, a Georgia resident, is a
counterterrorism,
counterintelligence,
and
interrogation expert who spent more than three
decades in government service, primarily with the
Naval Criminal Investigative Service (“NCIS”). Id. ¶
100. Fallon served at the NCIS from 1981 to 2008,
including in a number of senior leadership positions,
before serving two years at the Department of
Homeland Security, which he departed in 2010. Id.
¶ 101. Between 2011 and 2016, he served as the
chair of the High-Value Detainee Interrogation
Group (“HIG”) Research Committee. Id. ¶ 100.
Fallon obtained a Top Secret security clearance in
1981 when he joined the NCIS and held it
continuously until 2010. Id. ¶ 102. He also obtained
and held TS/SCI clearance during his career at
NCIS, obtained it again in 2011 when he began work
for the HIG, and obtained another in 2017 for
consulting work he engages in with the U.S.
government. Id.
Fallon has published op-eds, articles, columns,
and a book since leaving government service, many
of which he submitted to the DOD for PPR. Id. ¶ 103.
In 2016, Fallon completed a book titled Unjustifiable
Means about the George W. Bush administration's
49a
policies relating to “interrogation and torture of
prisoners” and the experiences of public servants,
including Fallon, who had opposed the policies. Id. ¶
104. The book relied on information the government
had declassified and on public record materials
relating to “the Bush administration's policies and
their consequences.” Id. Fallon “was confident that
the book did not contain properly classified
information.” Id. When he began writing the book in
2014, Fallon consulted former NCIS colleagues
about PPR, one of whom stated that he had not
submitted his own manuscript and the rest of whom
advised him that they did not believe he was
required to submit his. Id. ¶ 105.
In June 2016, Fallon contacted the DOD's PPR
office after discovering it through his own research
and was advised that the PPR process was voluntary
and intended to aid authors. Id. ¶ 106. On October
4, 2016, however, Fallon received an email from a
DOD official stating that she had noticed Fallon's
forthcoming book on Amazon.com, asking if he had
submitted it for PPR, and informing him that he was
required to submit his works for review. Id. The
official attached the DOD's PPR policies. Id. On
January 3, 2017, the official advised Fallon by email
that while DOD policies provide that review will be
completed within 30 to 45 working days, “the truth
is that in most cases it takes a bit longer.” Id. Fallon
submitted his manuscript the following day. Id. ¶
107. Given the expected length of the review, Fallon
and his publisher agreed to a publication date of
March 7, 2017. Id.
50a
On January 11, 2017, the DOD PPR office
informed Fallon that its review of the manuscript
was complete but that review by other agencies was
necessary as well, though the reviewing official
would not identify the agencies. Id. ¶ 108. After
Fallon noted his publication date, the official
assured him that the DOD “would do everything it
could to complete review by that date.” Id. Fallon
emailed the reviewing official at least eight times
prior to the planned publication date, stressing that
delay would force the date to be pushed back, which
would require cancelling book tours and speaking
engagements. Id. ¶ 109. The DOD did not inform
Fallon that review was complete until August 25,
2017. Id. ¶ 110. It also required Fallon to make 113
separate excisions from the book if he wished to
proceed with publication. Id.
In Fallon's view, “the excisions were arbitrary,
haphazard, and inconsistent, and, at least in some
instances, seemingly intended to protect the CIA
from embarrassment.” Id. Some related to material
published in unclassified congressional reports
while others concerned news articles Fallon had
cited. Id. While Fallon believed that all of the
excisions were unnecessary and unjustified, he
decided not to challenge them to avoid delaying
publication further. Id. ¶ 111. Fallon had originally
intended to publish the book at the start of the
Trump administration after torture became a major
issue during the 2016 U.S. presidential campaign
and it was important to him to publish “while it was
still possible to influence the public debate on this
subject.” Id. ¶¶ 107, 111. Though Fallon was forced
to cancel events and travel, and his publisher at one
51a
point threatened to cancel his contract for nondelivery, the book was eventually published on
October 24, 2017. Id. ¶¶ 111–12.
Fallon asserts that his PPR experience with
Unjustifiable Means “was so time-consuming, costly,
and exhausting that he is unsure whether he is
willing to embark on writing another book.” Id. ¶
112. Cancellations of his travel and events cost him
personally and he “paid a premium after the book
was cleared in order for his editors to work to finalize
publication on a tight timeframe.” Id. Fallon also
discontinued certain consulting work while waiting
for review to be completed, and his publisher
informed him that the delay in publication made it
less likely that bookstores would choose to carry or
promote the book. Id. Since the publication of
Unjustifiable Means, however, Fallon and a coauthor drafted and submitted a new manuscript
entitled The HIG Project: The Road to Scientific
Research on Interrogations, which will be a chapter
in a forthcoming book. Id. ¶ 113.
Fallon submitted the piece for review by the DOD
on August 10, 2018 and along with his co-author
followed up with the PPR office repeatedly over
several months. On January 14, 2019, Fallon's coauthor was informed by the review board of the
Defense Intelligence Agency that the DOD's review
board was waiting for a response from the Federal
Bureau of Investigation (“FBI”). Id. On February 11,
2019, PPR of the manuscript was completed and it
was cleared for publication with redactions. Id. ¶
114. All of the redacted material, however, was
information that Fallon had heard at unclassified
52a
public meetings with the HIG Research Committee.
Id. Fallon believes that the redactions were
motivated by political disagreement with his and his
co-author's perspective on torture and the HIG
Research Committee's work. Id.
In Fallon's experience, PPR “has been haphazard
and opaque, and communication from the DOD has
been sporadic and unhelpful.” Id. ¶ 116. Fallon has
come to believe that the DOD's PPR officials “have
no control or influence over the other agencies to
which they send authors’ works for review” and that
there is “a lack of accountability from those offices to
the DOD.” Id. ¶ 117. While Fallon plans to continue
submitting to the DOD any op-eds, articles, columns,
and books he writes in the future, he alleges that his
experiences with PPR “continue to negatively
impact him and deny him the opportunity to
contribute to the public debate over breaking news.”
Id. ¶¶ 115, 118. Specifically, because of his concerns
about potential delays and unjustified agency
objections that arise with PPR, Fallon has declined
offers to author op-eds and write articles on breaking
news and topics of public concern because they
require an immediate response. Id. ¶ 118. He also is
unsure how his PPR obligations apply in academic
settings, including whether he must submit edits
and additions he makes to the work of others, which
hinders his work and ability to engage with his
colleagues. Id. Finally, Fallon worries that the
government will retaliate against him by stripping
his security clearance, which he requires for his
consulting work, if he does not strictly comply with
PPR requirements. Id. ¶ 119.
53a
B.
PPR Regimes
1.
Historical Background
Plaintiffs assert that since its establishment in
1947, the CIA has required employees to sign
secrecy agreements when they join and leave the
agency that generally prohibit publication of
manuscripts without obtaining agency consent. Id. ¶
17. The number of such manuscripts increased
markedly in the 1970s, leading the agency to create
a Publications Review Board to review manuscripts
by current employees. Id. ¶ 18. The Board's
jurisdiction was expanded to reach submissions by
former employees in 1977. Id.
In 1980, the Supreme Court decided Snepp v.
United States, 444 U.S. 507 (1980) (per curiam),
affirming the imposition of a constructive trust on
proceeds earned by a former CIA officer who had
published a book without submitting it for PPR. Id.
¶ 19. In 1983, President Reagan issued National
Security Decision Directive 84, which mandated
that intelligence agencies require all persons with
access to Sensitive Compartmented Information
(“SCI”) sign a nondisclosure agreement with a PPR
provision. Id. ¶ 20. The Directive received significant
bipartisan criticism from Congress and was
suspended after legislation that would have
prohibited most agencies from imposing PPR
requirements was considered in hearings by a House
subcommittee. Id. ¶ 21. Agencies continued to
require employees to sign a form imposing
essentially the same PPR requirements, however.
Id. ¶ 22.
54a
Plaintiffs further allege that the PPR system
“has expanded on every axis” over the past several
decades. Id. ¶ 23. Specifically, every U.S.
intelligence agency now imposes a lifetime PPR
requirement on at least some subset of former
employees, PPR obligations are imposed on broader
categories of employees, including those who never
had access to SCI or any other classified
information, the amount of information that is
classified has “expanded dramatically,” PPR
regimes have become increasingly complex and
varied across agencies, and the amount of material
submitted for PPR has steadily increased, as has the
amount of time agencies take to complete their
reviews. Id. ¶¶ 24–29.
Plaintiffs highlight that the DOD, for example,
imposes PPR obligations on all 2.9 million of its
employees, that classification authorities made 49.5
million classification decisions in 2017, that the CIA
received 8,400 PPR submissions in 2015, including
3,400 manuscripts, and that a draft report by the
CIA Inspector General suggested that book-length
manuscripts were projected to require a year to
review. Id. ¶¶ 25–26, 28–29. Plaintiffs assert that as
a result of these expansions, “the prepublication
review system has become dysfunctional.” Id. ¶ 30.
The Complaint notes that the House and Senate
Intelligence Committees instructed the Director of
National Intelligence (“DNI”) in 2017 to prepare a
new PPR policy that would apply to all intelligence
agencies but that the DNI had not published or
formulated such a policy as of the filing of the
Complaint. Id.
55a
2.
Current Regimes
The Complaint then describes the PPR policy
regimes of the CIA, the DOD, the NSA, and the
ODNI, each of which Plaintiffs allege “restrains far
more speech than can be justified by any legitimate
government interest.” Id. ¶ 31. According to the
Complaint, each agency requires employees with
access to classified information to complete
Standard Form 312, “Classified Information
Nondisclosure Agreement.” Id. ¶¶ 32a, 38a, 44a,
50a. The form requires all covered employees who
are “uncertain about the classification status of
information” to “confirm from an authorized official
that the information is unclassified before [they]
may disclose it.” Id. ¶ 32a (alteration in original).
Employees with access to SCI must also complete
Form 4414, “Sensitive Compartmented Information
Nondisclosure Agreement,” which requires all
covered employees to submit for PPR “any writing or
other preparation in any form, including a work of
fiction, that contains or purports to contain any SCI
or description of activities that produce or relate to
SCI or that [the author has] reason to believe are
derived from SCI.” Id. ¶ 32b (alteration in original).2
Each agency also maintains additional secrecy
and PPR policies. First, the CIA requires that all
officers submit for PPR “any and all materials they
intend to share with the public that are intelligence
related,” according to the agency's website. Id. ¶ 32c.
Plaintiffs allege that DOD alternatively or additionally
requires employees with access to SCI to complete form DD
Form 1847-1, which is similar to Form 4414. ECF No. 1 ¶ 38b.
2
56a
Additionally, through Agency Regulation (“AR”) 1310, titled “Agency Prepublication Review of Certain
Material Prepared for Public Dissemination,” the
CIA requires all “former Agency employees and
contractors, and others who are obligated by CIA
secrecy agreement,” to submit for PPR any material
“that mentions CIA or intelligence data or activities
or material on any subject about which the author
has had access to classified information in the course
of his employment or other contact with the Agency.”
Id. ¶ 32d. According to documents obtained through
Freedom of Information Act litigation by Plaintiffs’
counsel, the CIA “will not provide a copy of a secrecy
agreement or nondisclosure agreement to an author
who requests one they signed,” even though such
agreements “are typically not classified.” Id. ¶ 32e.
The CIA's PPR authority is known as the
Publications Review Board. Id. ¶ 33. Plaintiffs allege
that Standard Form 312, Form 4414, the CIA
secrecy agreement, and AR 13-10 collectively “give
the Board discretion to censor information that it
claims is classified without regard” to considerations
including “whether disclosure of the information
would actually cause harm to the nation's security,
whether the former employee acquired the
information in question in the course of employment,
whether the information is already in the public
domain, and whether any legitimate interest in
secrecy is outweighed by public interest in
disclosure.” Id. ¶ 33. Plaintiffs also assert that when
the Board refers manuscripts by former CIA
employees to other agencies for review, other
agencies censor the manuscripts on the basis of
undisclosed review standards. Id.
57a
Plaintiffs further allege that “the breadth and
vagueness of the CIA's review standards invite
capricious and discriminatory enforcement” and
that “in practice the Board's censorship decisions are
often arbitrary or influenced by the author's
viewpoint.” Id. ¶ 34. For example, Plaintiffs assert,
former intelligence community employees “who
wrote books criticizing the CIA's torture of prisoners
apprehended in the ‘war on terror’ have complained
publicly that their books were heavily redacted even
as former CIA officials’ supportive accounts of the
same policies were published without significant
excisions of similar information.” Id. According to
Plaintiffs, the CIA in 2012 opened an internal
investigation into whether its PPR regime was being
misused to suppress speech critical of the agency,
but the agency has not released or publicly described
its findings. Id. Finally, Plaintiffs allege that: the
regime does not require the Board to provide authors
with reasons for its decisions and that the Board
generally does not do so; that deadlines for
adjudication of appeals are merely aspirational and
that the regime fails to assure prompt review; and
that the regime fails to require the government to
initiate judicial review of PPR decisions and to
guarantee that such review is prompt. Id. ¶¶ 35–37.
Plaintiffs’ general allegations about the DOD,
NSA, and ODNI regimes are similar to those about
the CIA's. Plaintiffs allege that each regime
“imposes submission requirements that, taken
together, are vague, confusing, and overbroad,” id.
¶¶ 38, 44, 50; that each regime “fails to meaningfully
cabin the discretion” of the agency's PPR authority
and instead grants to the authority “discretion to
58a
censor information” without regard to the same
interests that Plaintiffs allege the CIA Publications
Review Board is not required to consider, id. ¶¶ 39,
45, 51; that the agencies refer manuscripts to other
agencies that do not disclose their review standards,
id. ¶¶ 39, 45, 51; that the “breadth and vagueness”
of the agencies’ standards mean that the agencies’
PPR decisions are often or frequently “arbitrary” or
“invite capricious and discriminatory enforcement,”
id. ¶¶ 40, 46, 52; and that the regimes do not require
the PPR authorities to provide authors with reasons
for their decisions, id. ¶¶ 41, 47, 53; provide no
assurance of prompt review, id. ¶¶ 42, 48, 54; and
fail to require the government to initiate judicial
review of PPR decisions or to guarantee that such
review is prompt, id. ¶¶ 43, 49, 55.
The Complaint also makes additional specific
allegations about each agency. According to the
Complaint, the DOD maintains two relevant
policies: Directive 5230.09, “Clearance of DoD
Information for Public Release,” and Instruction
5230.29, “Security and Policy Review of DoD
Information for Public Release.” Id. ¶ 38c. Together,
the policies require all former agency employees and
all former active or reserve military service
members to submit for PPR “any official DoD
information intended for public release that pertains
to military matters, national security issues, or
subjects of significant concern to [the agency].” Id.
(alteration in original). “[O]fficial DoD information”
is defined broadly to include “[a]ll information that
is in the custody and control of the Department of
Defense, relates to information in the custody and
control of the Department, or was acquired by DoD
59a
employees as part of their official duties or because
of their official status within the Department.” Id.
(alteration in original).
Such information must be submitted if, for
example, it “[i]s or has the potential to become an
item of national or international interest”; “[a]ffects
national security policy, foreign relations, or ongoing
negotiations”; or “[c]oncerns a subject of potential
controversy among the DoD Components or with
other federal agencies.” Id. (alterations in original).
PPR is performed at the agency by the Defense
Office of Prepublication and Security Review
(“DOPSR”), which the agency's policies indicate
conducts both “security review” for protecting
classified information and “policy review” to ensure
that materials do not conflict with DOD or
government policies or programs. Id. ¶ 39. Plaintiffs
allege that DOD components “often disagree as to
what must be censored,” and that review “frequently
takes many weeks or even months” and can result in
required redactions of readily available public
information. Id. ¶ 40.
With respect to the NSA, Plaintiffs allege that
the agency has adopted NSA/CSS Policy 1-30,
“Review of NSA/CSS Information Intended for
Public Release,” which requires all former NSA
employees to submit for PPR any material, other
than a resume or job-related document, “where [it]
contains official NSA/CSS information that may or
may not be UNCLASSIFIED and approved for
public release.” Id. ¶ 44c (alteration in original).
“Official NSA/CSS information” is defined to include
“[a]ny NSA/CSS, DoD, or IC information that is in
60a
the custody and control of NSA/CSS and was
obtained for or generated on NSA/CSS’ behalf during
the course of employment or other service, whether
contractual or n
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