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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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)
.
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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
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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
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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
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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).
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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
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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
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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
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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
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(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
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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
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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
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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
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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
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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
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“[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
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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
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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.
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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
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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
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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 not, with NSA/CSS.” Id. (alteration in
original). Plaintiffs further allege that “the
censorship decisions” of “the agency's censors,
known as Prepublication Review Authorities,” are
“often arbitrary” and can result in required
redactions of publicly available facts, and that
“review frequently takes many weeks or even
months.” Id. ¶¶ 45–46, 48.
Finally, with respect to the ODNI, Plaintiffs
allege that the agency requires employees to sign
Form 313, titled “Nondisclosure Agreement for
Classified Information,” as a prerequisite to
accessing information or material that is classified
or in the process of a classification determination. Id.
¶ 50c. The form directs employees to submit for PPR
“any writing or other preparation in any form” that
“contains any mention of intelligence data or
activities, or which contains any other information
or material that might be based upon [information
or material that is classified, or is in the process of a
classification determination, and that was obtained
pursuant to the agreement].” Id. (alteration in
original).
PPR at the ODNI is conducted by the Director of
the Information Management Division. Id. ¶ 51. The
ODNI has also adopted Instruction 80.04, “ODNI
Pre-publication Review of Information to be Publicly
Released,” which “requires all former agency
employees, regardless of their level of access to
sensitive information, to submit ‘all official and non61a
official information intended for publication that
discusses the ODNI, the IC [Intelligence
Community], or national security.” Id. ¶ 50d
(alteration in original). The Instruction, Plaintiffs
allege, “imposes no limitations whatsoever on the
Director's power to censor,” stating only that “the
goal of pre-publication 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. Plaintiffs finally allege that review
under the ODNI regime “frequently takes many
weeks or even months.” Id. ¶ 54.
Plaintiffs filed their Complaint on April 2, 2019.
ECF No. 1. The Complaint asserts two causes of
action. Id. ¶¶ 120–21. First, Plaintiffs assert that
Defendants’ PPR 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.” Id. ¶ 120.
Plaintiffs then allege that the regimes “are void for
vagueness under the First and Fifth Amendments
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.” Id. ¶ 121. For
relief, the Complaint seeks a declaration that the
PPR regimes violate the First and Fifth
Amendments and an injunction barring Defendants
and individuals associated with them from
62a
continuing to enforce the regimes “against Plaintiffs,
or any other person.” Id. at 41.3
Concurrent with the filing of their Complaint,
three of the five Plaintiffs filed a Motion to omit their
home addresses from the caption of the Complaint,
ECF No. 8, and a supporting memorandum, ECF No.
8-1. On June 14, 2019, Defendants filed a Motion to
Dismiss the Complaint. ECF No. 30. Plaintiffs filed
a response in Opposition on July 16, 2019. ECF No.
33.4 A third party, the Center for Ethics and the Rule
of Law, submitted a Motion for Leave to file an
amicus brief in support of Plaintiffs on July 23, 2019,
ECF No. 34, accompanied by a copy of the proposed
brief, ECF No. 34-1. Finally, Defendants filed a
Reply in support of dismissal on August 2, 2019.
ECF No. 36. Defendants have not opposed any of the
pending motions.5
II.
STANDARD OF REVIEW
3 Pin cites to documents filed on the Court's electronic filing
system (CM/ECF) refer to the page numbers generated by that
system.
4 Plaintiffs also concurrently filed a consent motion for leave
to file an opposition that exceeds the page limit set by the Local
Rules. ECF No. 32. The motion will be granted.
5 The Court notes that neither Plaintiffs nor Defendants
have raised that some of the named Defendants no longer hold
their positions. The issue is immaterial to disposition of the
pending motions, however, because all Defendants are sued in
their official capacities and substitution of a public official
party's successor is automatic under Federal Rule of Civil
Procedure 25(d). See Maryland v. United States, 360 F. Supp.
3d 288, 318 (D. Md. 2019).
63a
“A district court should grant a motion to dismiss
for lack of subject matter jurisdiction under Rule
12(b)(1) ‘only if the material jurisdictional facts are
not in dispute and the moving party is entitled to
prevail as a matter of law.’ ” Upstate Forever v.
Kinder Morgan Energy Partners, L.P., 887 F.3d 637,
645 (4th Cir. 2018) (quoting Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999)). “The burden
of establishing subject matter jurisdiction rests with
the plaintiff.” Demetres v. East West Constr., 776
F.3d 271, 272 (4th Cir. 2015). “When a defendant
challenges subject matter jurisdiction pursuant to
Rule 12(b)(1), ‘the district court is to regard the
pleadings as mere evidence on the issue, and may
consider evidence outside the pleadings without
converting the proceeding to one for summary
judgment.’ ” Evans, 166 F.3d at 647 (quoting
Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991)).
Article III standing is a prerequisite to subject
matter jurisdiction. See Beyond Sys., Inc. v. Kraft
Foods, Inc., 777 F.3d 712, 715 (4th Cir. 2015).
To state a claim that survives a Rule 12(b)(6)
motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The “mere
recital of elements of a cause of action, supported
only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). To determine whether a claim has crossed
“the line from conceivable to plausible,” the Court
64a
must employ a “context-specific” inquiry, drawing on
the court's “experience and common sense.” Iqbal,
556 U.S. at 679–80 (quoting Twombly, 550 U.S. at
570). The Court accepts “all well-pled facts as true
and construes these facts in the light most favorable
to the plaintiff in weighing the legal sufficiency of
the complaint.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009). The Court must “draw all reasonable
inferences in favor of the plaintiff.” Id. at 253 (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999)). “[B]ut [the Court] need not accept the
legal conclusions drawn from the facts, and ... need
not accept as true unwarranted inferences,
unreasonable conclusions or arguments.” Id. (first
alteration in original) (quoting Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
III.
DISCUSSION
Before addressing Defendants’ Motion to Dismiss
the Complaint, the Court first considers the other
pending motions, neither of which Defendants have
opposed. First, the Motion to Omit Home Addresses
from Caption filed by Plaintiffs Edgar, Bhagwati,
and Fallon (“Movants”) asks the Court to waive the
requirement of this District's Local Rule 102.2(a)
that a complaint include the names and addresses of
all parties. ECF No. 8. As the Court noted in Casa
de Maryland, Inc. v. Trump, the Fourth Circuit has
held that while the public has an important interest
in open judicial proceedings, “compelling concerns
relating to personal privacy or confidentiality may
warrant some degree of anonymity.” No. GJH-18845, 2018 WL 1947075, at *1 (D. Md. Apr. 25, 2018)
65a
(quoting Doe v. Pub. Citizen, 749 F.3d 246, 273 (4th
Cir. 2014)).
The Fourth Circuit has identified several factors
for courts to consider in balancing the need for open
proceedings against litigants’ privacy concerns,
including:
Whether the justification asserted by
the requesting party is merely to avoid
the annoyance and criticism that may
attend any litigation or is to preserve
privacy in a matter of sensitive and
highly personal nature; whether
identification poses a risk of retaliatory
physical or mental harm to the
requesting party or even more
critically, to innocent nonparties; the
ages of the person whose privacy
interests are sought to be protected;
whether the action is against a
governmental or private party: and,
relatedly, the risk of unfairness to the
opposing party from allowing an action
against it to procced anonymously.
Pub. Citizen, 749 F.3d at 273 (quoting James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993)). In Casa
de Maryland, the Court found that these factors
favored allowing the plaintiffs, who challenged a
federal immigration policy decision that resulted in
rescission of their lawful immigration status, to omit
their addresses. 2018 WL 1947075 at *1–*2. The
Court also found that the plaintiffs’ addresses had
no bearing on the merits of their action and that
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shielding them from public view would not prejudice
the government defendants. Id. at *2.
Here, Movants assert that they reasonably fear
for their physical safety and that of their family
members “in light of the passion that may be
inflamed by this lawsuit against high-ranking
government actors.” ECF No. 8-1 at 2. Bhagwati
notes that she is an activist who conducts public
advocacy on issues of misogyny, racism, and sexual
violence in the military and has been subject to
stalking and repeated online attacks, which she
asserts are common responses to advocacy on such
issues. Id. at 2–3. Fallon states that his professional
history as a senior official investigating al-Qaeda
members and terrorist attacks creates heightened
dangers of physical harm to him and his family if his
home address is made public. Id. at 3. Finally, Edgar
asserts that he resides with young children and fears
for their safety if his address is disclosed. Id.
While the Movants’ rationales for withholding
their addresses align with the Public Citizen factors
to varying degrees, the Court finds that granting the
motion
is
warranted
given
the
limited
countervailing public interests at play. As in Casa de
Maryland, Plaintiffs’ addresses “are of minimal
import to furthering the openness of judicial
proceedings.” 2018 WL 1947075 at *2. Given that
the Complaint extensively describes each Movant's
professional background and identifies their state of
residence, there can be little if any confusion about
their identities, and any ambiguity that did exist
would not be remedied by ordering disclosure of
their home addresses. Further, there is no indication
67a
of any prejudice to Defendants from allowing
Movants to withhold their addresses, which is
underscored by Defendants’ lack of any opposition to
the motion. Nor is it apparent that the addresses are
relevant to any questions before the Court. See Casa
de Maryland, 2018 WL 1947075, at *2. For these
reasons, the Court will grant the motion.
Also pending is the unopposed motion by nonparty the Center for Ethics and the Rule of Law
(“CERL”) for leave to file an amicus brief in support
of Plaintiffs. ECF No. 34. “Decisions about whether
and how to allow amicus participation in federal
district court are left to the discretion of the trial
judge.” Md. Restorative Justice Initiative v. Hogan,
No. ELH-16-1021, 2017 WL 467731, at *8 (D. Md.
Feb. 3, 2017) (citing Finkle v. Howard Cty., 12 F.
Supp. 3d 780 (D. Md. 2014)). “Amicus briefs have
been ‘allowed at the trial level where they provide
helpful analysis of the law, they have a special
interest in the subject matter of the suit, or existing
counsel is in need of assistance.’ ” Wheelabrator
Balt., L.P. v. Mayor & City Council of Balt., No.
GLR-19-1264, 449 F.Supp.3d 549, 555 n.1 (D. Md.
Mar. 27, 2020) (quoting Bryant v. Better Bus. Bureau
of Greater Md., Inc., 923 F. Supp. 720, 728 (D. Md.
1996)).
CERL states that it is a non-partisan institute at
the University of Pennsylvania Law School
“dedicated to preserving and promoting ethics and
the rule of law in national security, democratic
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governance, and warfare.” ECF No. 34 at 2.6 Among
other activities, it holds conferences and events and
publishes various academic materials “at the
intersection of national security and ethics.” Id.
CERL asserts that these activities and others
demonstrate that it has a “special interest in the
outcome of [this] suit” and expertise in the subject
matter at issue. Id. (alteration in original) (quoting
Bryant, 923 F. Supp. at 728). Finally, CERL states
that its brief “would provide the Court with
important background information about the
chilling effect of Defendants’ prepublication regimes
on academics, national security professionals and
the general public.” Id. at 3–4.
CERL's motion for leave is compliant with this
Court's Standing Order 2018-07, which prescribes
that such motions must state the movant's interest,
the reason why the brief is desirable and why the
matters asserted are relevant to disposition of the
case, and whether a party's counsel authored the
brief in whole or in part or contributed money to
fund its preparation or submission. The proposed
brief is also compliant with the requirements of the
Standing Order in that it is fewer than 15 pages,
complies with other applicable Local Rules, and was
filed within seven days after the principal brief of
the party being supported. For these reasons, and
because the motion is unopposed, the Court will
grant the Motion for Leave and accept the proposed
amicus brief, ECF No. 34-1. Having considered the
6 CERL states that Plaintiff Fallon is a member its Advisory
Council but was not involved in drafting the proposed amicus
brief. ECF No. 34 at 2 & n.2.
69a
non-dispositive motions, the Court now turns to
Defendants’ Motion to Dismiss.
A.
Standing
Defendants first move to dismiss the Complaint
under Rule 12(b)(1) on the ground that Plaintiffs
lack standing and that the Court therefore lacks
subject matter jurisdiction. “Article III of the U.S.
Constitution limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies.’ ” Beck v. McDonald,
848 F.3d 262, 269 (4th Cir. 2017) (quoting U.S.
Const. art. III, § 2). “One element of the case-orcontroversy requirement is that plaintiffs must
establish that they have standing to sue.” Id.
(quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398,
408 (2013)). “To invoke federal jurisdiction, a
plaintiff bears the burden of establishing the three
‘irreducible minimum requirements’ of Article III
standing.” Id. (quoting David v. Alphin, 704 F.3d
327, 333 (4th Cir. 2013)). The plaintiff must
demonstrate “(1) an injury in fact (i.e., a ‘concrete
and particularized’ invasion of a ‘legally protected
interest’); (2) causation (i.e., a ‘fairly ... trace[able]’
connection between the alleged injury in fact and the
alleged conduct of the defendant); and (3)
redressability (i.e., it is ‘likely’ and not merely
‘speculative’ that the plaintiff's injury will be
remedied by the relief plaintiff seeks in bringing
suit).” David, 704 F.3d at 333 (alterations in
original) (quoting Sprint Commc'ns Co., L.P. v.
APCC Servs., Inc., 554 U.S. 269, 273–74 (2008)).
“[T]he presence of one party with standing is
sufficient to satisfy Article III's case-or-controversy
requirement.” Bostic v. Schaefer, 760 F.3d 352, 370
70a
(4th Cir. 2014) (quoting Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47,
52 n.2 (2006)).
The parties dispute standing in somewhat
divergent terms. Defendants argue that Plaintiffs
have failed to identify any future concrete harm that
they are likely to encounter as a result of the
deficiencies they claim exist in the PPR regimes at
issue. ECF No. 30-1 at 23–24. Discerning two
theories of standing in the Complaint – one based on
potential for publication delays and the other based
on chill to Plaintiffs’ speech – Defendants assert that
neither identifies an adequately concrete harm. Id.
at 24. Plaintiffs’ Opposition makes clear that
Plaintiffs do not pursue a theory based entirely on
delayed publication, however, and the Court
therefore does not discuss it further. Plaintiffs
instead advance three theories of standing: that they
are subject to government licensing schemes that
invest executive officers with overly broad
discretion, which by itself confers standing; that
Defendants’ PPR regimes have a chilling effect on
protected speech; and that Plaintiffs face a credible
threat of sanctions if they refuse to submit their
work for PPR. ECF No. 33 at 13–14.
Plaintiffs’ licensing scheme theory argues that
the PPR regimes are akin to prior restraint statutes
that place “unbridled discretion in a government
official over whether to permit or deny expressive
activity” and are thus subject to facial challenges.
City of Lakewood v. Plain Dealer Publ'g Co., 486
U.S. 750, 755 (1988). Under that doctrine, “a facial
challenge lies whenever a licensing law gives a
71a
government official or agency substantial power to
discriminate based on the content or viewpoint of
speech by suppressing disfavored speech or disliked
speakers.” Id. at 759. Such schemes give rise to “two
major First Amendment risks”: “self-censorship by
speakers in order to avoid being denied a license to
speak; and the difficulty of effectively detecting,
reviewing, and correcting content-based censorship
‘as applied’ without standards by which to measure
the licensor's action.” Id. On the basis of this
doctrine, the Supreme Court has permitted facial
challenges to, for example, an ordinance giving a
mayor “unfettered discretion” to deny or condition
permits for newspaper display racks on public
property, id. at 772, and a Maryland statute
requiring submission of films to a state review board
before exhibiting them, Freedman v. Maryland, 380
U.S. 51, 56 (1965).
While there is some superficial resemblance
between the provisions challenged in these cases
and the PPR regimes at issue here, Plaintiffs’
attempt to fit their Complaint under this doctrine in
order to demonstrate standing is unconvincing.
First, PPR as Plaintiffs have described it cannot
plausibly be understood as a licensing scheme.
Plaintiffs have not alleged that the PPR schemes at
issue require them to obtain licenses to engage in
any expressive conduct at all, as is the case in the
typical licensing challenge that tests “the states’ and
municipalities’ longstanding authority to license
activities within their borders.” Am. Entertainers,
L.L.C. v. City of Rocky Mount, 888 F.3d 707, 719 (4th
Cir. 2018). Rather, they must submit for review
materials that discuss the subjects of their work as
72a
former federal intelligence professionals pursuant to
agreements they have signed. While Plaintiffs might
validly question whether the scope and extent of
that requirement is proper, the established concept
of a “licensing scheme” does not capture the
constraints under which Plaintiffs allege that they
operate.
Underscoring this point is that Plaintiffs are not
plausibly comparable to the paradigmatic
newspaper publishers and theater owners that have
brought challenges to licensing regimes. See
Midwest Media Prop., L.L.C. v. Symmes Township,
503 F.3d 456, 473 (6th Cir. 2007) (noting the
Supreme Court's observation that “newspapers,
radio stations, movie theaters and producers” are
“often those with the highest interest and the largest
stake in a First Amendment controversy” (quoting
Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
505 n.11 (1981)). Such entities would have no
interaction with the government with respect to
their expressive activities but for the challenged
regulations. In contrast, Plaintiffs here are former
government employees who voluntarily took on their
PPR obligations as a condition of their employment
and their access to protected government
information. Cf. John Doe, Inc. v. Mukasey, 549 F.3d
861, 877 (2d Cir. 2008) (rejecting an analogy
between PPR requirements for former CIA
employees
and
a
statute
barring
telecommunications firms from disclosing that they
received subpoenas from the FBI, explaining that
unlike the former employees the firms “had no
interaction with the Government until the
Government imposed its nondisclosure requirement
73a
upon [them]”). And Plaintiffs do not dispute the
government's basic power to restrict release of
classified information by those entrusted with it. For
these reasons, Plaintiffs’ attempt to fit PPR under
licensing scheme doctrine for standing purposes is
unavailing.
Plaintiffs’ chilling effect theory, in contrast,
stands on firmer ground. As a key initial note,
because Plaintiffs seek prospective relief, their
standing burden is different from the typical case.
“Because ‘[p]ast exposure to illegal conduct does not
in itself show a present case or controversy
regarding injunctive relief ... if unaccompanied by
any continuing, present adverse effects,’ a plaintiff
seeking ‘declaratory or injunctive relief ... must
establish an ongoing or future injury in fact.’ ”
Davison v. Randall, 912 F.3d 666, 677 (4th Cir.
2019) (alterations in original) (quoting Kenny v.
Wilson, 885 F.3d 280, 287–88 (4th Cir. 2018)).
Plaintiffs’ burden is lessened here, however, because
of the nature of their claims. “Significantly, [the
Fourth Circuit]—along with several other circuits—
has held that ‘standing requirements are somewhat
relaxed in First Amendment cases,’ particularly
regarding the injury-in-fact requirement.” Id. at 678
(quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th
Cir. 2013)).
“In First Amendment cases, the injury-in-fact
element is commonly satisfied by a sufficient
showing of ‘self-censorship, which occurs when a
claimant is chilled from exercising h[is] right to free
expression.’ ” Cooksey, 721 F.3d at 235 (alterations
in original) (quoting Benham v. City of Charlotte,
74a
635 F.3d 129, 135 (4th Cir. 2011)). “Although
‘[s]ubjective or speculative accounts of such a
chilling effect are not sufficient ... a claimant need
not show he ceased those activities altogether to
demonstrate an injury in fact.’ ” Kenny, 885 F.3d at
289 n.3 (alterations in original) (quoting Cooksey,
721 F.3d at 236). “Instead, ‘[g]overnment action will
be sufficiently chilling when it is likely to deter a
person of ordinary firmness from the exercise of
First Amendment rights,’ ” rendering the chilling
effect “objectively reasonable.” Id. (alterations in
original) (quoting Cooksey, 721 F.3d at 236). If the
government conduct meets that threshold, “there is
an ongoing injury in fact.” Kenny, 885 F.3d at 288.
Plaintiffs assert that the alleged breadth and
vagueness of the PPR regimes, “the absence of time
limits for completion of review, and the severity and
variety of sanctions for failure to submit” would
likely lead an objectively reasonable speaker “to
submit more material than the government has
constitutional authority to require authors to
submit, avoid writing about subjects that the
government might regard as sensitive ... and write
about these subjects differently in order to avoid
provoking the government's censors.” ECF No. 33 at
18. Plaintiffs further claim that uncertainty about
the time required for review “would also be likely to
deter a reasonable speaker from attempting to write
manuscripts meant to respond to breaking news, or
meant to engage with fast-moving public debates,”
and from writing longer pieces for commercial
publishers that require authors to commit to
deadlines. Id. at 18–19.
75a
These allegations are facially plausible.
Importantly, beyond mere hypotheticals, Plaintiffs
partly premise the likelihood of such objective effects
on the fact that some of them have self-censored in
precisely these ways. Most notably, as Plaintiffs
describe, the Complaint alleges that some Plaintiffs,
including Edgar, Immerman, Goodman, and Fallon,
have simply decided not to write about certain topics
as a result of their past experiences with PPR. Id. at
19 (citing ECF No. 1 ¶¶ 66, 80, 92–93, 112, 118–19).
They have also elected to accept required redactions
and publish their work in altered and limited form
rather than proceed with appeals of the redactions
out of concern for further delaying publication or
risking their relationships with PPR officials whom
they may encounter again in the future. Id. (citing
ECF No. 1 ¶¶ 64, 78, 110, 119). These allegations
demonstrate that Plaintiffs have been deterred from
exercising their First Amendment rights in ways
persons of ordinary fitness who are subject to the
PPR regimes at issue plausibly would be.
Defendants respond that Plaintiffs’ claims of chill
are belied by the fact that Plaintiffs have published
extensively and intend to continue doing so despite
the inadequacies they allege in the PPR regimes. Id.
(citing ECF No. 1 ¶¶ 61, 65, 72, 79, 85, 93, 103, 115).
This argument is unpersuasive. As the Court has
noted, “a claimant need not show [he] ceased [First
Amendment] activities altogether to demonstrate an
injury in fact” as long as the claimed chill to those
activities is objectively reasonable. Cooksey, 721
F.3d at 236 (first alteration in original) (quoting
Benham, 635 F.3d at 135). Defendants next argue
that Plaintiffs’ claims of chill are not objectively
76a
reasonable because Plaintiffs’ decisions not to write
about certain topics or to accept redactions they
disagree with are “based on a mere preference to
avoid potential disagreement, the possibility of
delays in the publication process, or uncertainty.”
ECF No. 30-1 at 28. Plaintiffs contend that their
decisions are reasonable responses to the breadth
and vagueness of the PPR regimes, uncertainty
about the time required for manuscript review, and
the risk of sanctions for failure to submit. ECF No.
33 at 20.
Defendants rely on The Baltimore Sun Co. v.
Ehrlich, in which the Fourth Circuit affirmed the
dismissal of a First Amendment claim by two
reporters challenging the Governor of Maryland's
ban on state staff speaking with them. 437 F.3d 410,
413 (4th Cir. 2006). The ban in that case was
imposed because the Governor's press office felt the
reporters were not “objectively” reporting on the
administration. Id. at 413. The court explained that
“[i]t would be inconsistent with the journalist's
accepted role in the ‘rough and tumble’ political
arena to accept that a reporter of ordinary firmness
can be chilled by a politician's refusal to comment or
answer questions on account of the reporter's
previous reporting.” Id. at 419 (quoting Eaton v.
Meneley, 379 F.3d 949, 956 (10th Cir. 2004)). It is
unclear how that reasoning bears on Plaintiffs’
claims here. Plaintiffs are not journalists claiming
viewpoints in their reporting will be “chilled”
because politicians refuse to engage with them in
response to perceived unfair criticisms. Id. at 417.
Rather, Plaintiffs allege that they are former public
servants who seek to engage in public discourse
77a
surrounding the topics of their expertise but whose
writings are subject to redactions and who face
threats to their livelihood and potentially severe
sanctions for failure to comply with PPR
requirements. Their decisionmaking therefore is
plausibly premised on more than a preference to
avoid mere “disagreement[s].” ECF No. 30-1 at 28.
Defendants next assert that because of the
presumption that government officials properly
discharge their duties absent clear evidence to the
contrary, Plaintiffs’ alleged concerns about PPR
reviewers being less responsive if Plaintiffs’ writings
criticize the government are misplaced. While such
a presumption exists in some contexts, see Nardea v.
Sessions, 876 F.3d 675, 680 (4th Cir. 2017), its
application here would not undermine Plaintiffs’
other alleged reasons for self-censorship, which stem
from the structure of the PPR regimes rather than
conduct
by
individual
reviewers.
Finally,
Defendants make the peculiar argument that
Plaintiffs are not chilled but rather benefitted by
PPR because review of their work prior to
publication protects them from punishment for
having published classified information. ECF No.
30-1 at 29. Even if Defendants were correct that the
existence of a PPR system provides this
counterintuitive incidental benefit to authors,
however, that does not negate the other sources of
chill caused by the alleged flaws in the specific PPR
regimes at issue here.
Because Plaintiffs have plausibly alleged that
features of the PPR regimes result in a chilling effect
on the exercise of First Amendment rights, Plaintiffs
78a
have made a sufficient showing of an injury in fact
to proceed.7 With respect to the redressability prong
of standing, Defendants’ only argument is that a
judicial order could not set time limits for review in
a way that would remedy the harms Plaintiffs
allege. ECF No. 30-1 at 28. This claim is
unconvincing for two reasons. First, the
redressability requirement is met “when the court's
decision would reduce ‘to some extent’ plaintiffs’ risk
of additional injury.” Carter v. Fleming, 879 F.3d
132, 138 (4th Cir. 2018) (quoting Massachusetts v.
EPA, 549 U.S. 497, 526 (2007)). Additionally, the
lack of certainty about the duration of review is only
one factor contributing to the chill Plaintiffs allege,
the remainder of which Defendants do not directly
address.
To be sure, Plaintiffs’ arguments supporting
redressability are somewhat nebulous. In their
Because Plaintiffs’ theory based on chilling effect is
sufficient to demonstrate standing, the Court need not consider
at length Plaintiffs’ alternative “credible threat of
enforcement” theory. Under such a theory, plaintiffs can
demonstrate standing by showing that “they intend to engage
in conduct at least arguably protected by the First Amendment
but also proscribed by the policy they wish to challenge, and
that there is a ‘credible threat’ that the policy will be enforced
against them when they do so.” Abbott v. Pastides, 900 F.3d
160, 176 (4th Cir. 2018) (quoting Kenny, 885 F.3d at 288). The
Court notes, however, that like Plaintiffs’ licensing scheme
argument, credible threat of enforcement is an awkward fit for
this case because Plaintiffs do not state a desire to engage in
conduct that is specifically proscribed by government policy,
but rather express confusion and uncertainty about PPR
policies with which Plaintiffs are willing to comply but for the
regimes’ alleged vagueness and other flaws.
7
79a
Opposition, Plaintiffs assert that they seek a
declaration that the PPR regimes violate the First
and Fifth Amendments and “an injunction
prohibiting Defendants from sanctioning them for
failure to comply with these regimes.” ECF No. 33 at
22.8 Plaintiffs then state that “[i]f the Court were to
afford Plaintiffs this relief, Defendants would
presumably revise their prepublication review
regimes to bring these regimes into alignment with
the First and Fifth Amendments.” ECF No. 33 at 22.
Unspecified as that prediction is, a declaration that
features of the PPR regimes are unconstitutional
would necessitate that Defendants implement
reforms to the regimes to remedy their potential
constitutional defects. Because the court's decision
need only reduce “ ‘to some extent’ plaintiffs’ risk of
additional injury” to satisfy the redressability prong,
Plaintiffs’ allegations are generally sufficient to
proceed. Carter, 879 F.3d at 138 (quoting
Massachusetts, 549 U.S. at 526).
The
speculative
nature
of
Plaintiffs’
redressability arguments, however, relates to other
alleged deficiencies that Defendants raise in
Plaintiffs’ claims and the relief Plaintiffs request.
Defendants first argue that Plaintiffs lack standing
to assert that PPR must apply only to narrow
categories of former employees and only to material
reasonably likely to contain “the most closely held
government secrets” because Plaintiffs and their
That statement notably differs from the Complaint's
request for injunctive relief barring enforcement of the regimes
against anyone, an issue to which the Court returns below. See
ECF No. 1 at 41.
8
80a
written work fall into those categories and therefore
would not be impacted by the limitations Plaintiffs
seek. ECF No. 30-1 at 30–31. Elsewhere in their
brief, however, Defendants argue that all classified
information is considered “closely held” under
Executive Orders establishing the classification
system. Id. at 38. This apparent conflict indicates
that Defendants’ argument here is essentially an
attempt to derail Plaintiffs’ standing through a
grammatical technicality rather than a substantive
objection.
Defendants then assert that Plaintiffs’ works are
reasonably likely to contain classified information,
as indicated by the fact that Plaintiffs’ past works
have been redacted. Id. at 31. A core claim of
Plaintiffs’ suit, however, is that those redactions
were frequently without basis, and further that the
regimes require submission of more than just
materials likely to contain classified information.
Defendants’ argument is therefore unpersuasive.
Next, Defendants argue that Plaintiffs lack standing
to challenge features of the regimes that apply only
to current employees. Id. at 32. Plaintiffs make clear
in their Opposition that they do not intend to do so,
though they acknowledge Defendants’ correct
assertion that one of the DOD policies the Complaint
cites, Directive 5230.09, has been replaced by a new
policy, Instruction 5230.09. ECF No. 33 at 16 n.3, 17
n.4. Finally, Defendants assert that Plaintiffs lack
standing to challenge a provision of the NSA policy
relating to information “in the custody and control of
NSA/CSS,” because none of the Plaintiffs alleges
that they were employed by the NSA. ECF No. 30-1
at 33. Given that the ODNI has referred Plaintiff
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Edgar's writings to the NSA in the past, however, see
ECF No. 1 ¶¶ 63–65, Plaintiffs have adequately
alleged that they are impacted by that agency's PPR
regime.
Defendants also argue that Plaintiffs lack
standing to bring their vagueness claim because
Plaintiffs have identified no circumstance in which
uncertainty about the scope of their PPR obligations
has caused or is likely to cause them any tangible
harm, and that they rather are well aware of their
need to submit materials for PPR and have adhered
to those obligations. Id. at 33. As the merits portion
of Plaintiffs’ brief notes, however, a provision may be
impermissibly vague “if it authorizes or even
encourages
arbitrary
and
discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732
(2000) (citing Chicago v. Morales, 527 U.S. 41, 56–
57 (1999)). Plaintiffs allege that their works have
been arbitrarily redacted and excised, in part
because of discrimination against the viewpoints
they contain. See ECF No. 1 ¶¶ 75, 77, 90, 110–11,
114. Because Plaintiffs have plausibly alleged a
resulting chilling effect on future expression,
Plaintiffs have drawn a sufficient link between the
harms they assert and their vagueness claim.
Defendants’ final standing argument is that
Plaintiffs lack standing to seek an injunction barring
enforcement of the PPR regimes “against Plaintiffs,
or any other person.” ECF No. 30-1 at 34 (quoting
ECF No. 1 at 41). As Defendants note, the Supreme
Court has recently reaffirmed that “a plaintiff's
remedy must be ‘limited to the inadequacy that
produced [his] injury in fact.’ ” Gill v. Whitford, 138
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S. Ct. 1916, 1930 (2018) (alteration in original)
(quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
That “a plaintiff [has] demonstrated harm from one
particular
inadequacy
in
government
administration” does not authorize a court “to
remedy all inadequacies in that administration.”
Lewis, 518 U.S. at 357. Defendants also raise the
separation of powers concerns inherent in reviewing
government policies for protecting national security.
Generally, “[a]bsent a clear expression by Congress
to the contrary, courts should not ‘intrude upon the
authority of the Executive in military and national
security affairs.’ ” Clarke v. DynCorp Int'l, LLC, No.
JFM-12-03267, 2014 WL 4269075, at *3 (D. Md.
Aug. 28, 2014) (quoting Dep't of the Navy v. Egan,
484 U.S. 518, 530 (1988)).
In response, Plaintiffs note several cases in
which courts have nonetheless reviewed executive
action concerning national security when the
government's conduct has implicated fundamental
individual liberties. ECF No. 33 at 23 (citing
Boumediene v. Bush, 553 U.S. 723, 797 (2008);
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004);
United States v. U.S. Dist. Court (Keith), 407 U.S.
297 (1972); United States v. Moussaoui, 382 F.3d
453, 469 (4th Cir. 2004)). The Court need not wade
into the interplay between these weighty principles,
however, because as noted previously, Plaintiffs
have retreated from the maximal relief requested in
their Complaint and now characterize the remedy
they seek as a declaration that the PPR regimes are
constitutionally flawed and “an injunction
prohibiting Defendants from sanctioning [Plaintiffs]
for failure to comply with these regimes.” Id. at 22.
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Equitable relief that barred penalties solely against
these Plaintiffs and that granted Defendants time to
address any constitutional deficiencies the Court
identified with the PPR regimes would not
substantially implicate the separation of powers
concerns Defendants raise. The Court will
accordingly proceed.
B.
Ripeness
Before addressing the merits of Plaintiffs’
Complaint, Defendants also raise the additional
justiciability challenge that Plaintiffs’ claims are
unripe. “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.’ ” South Carolina v. United States,
912 F.3d 720, 730 (4th Cir. 2019) (quoting Pac. Gas
& Elec. Co. v. State Energy Res. Conservation & Dev.
Comm'n, 461 U.S. 190, 201 (1983)). “As with
standing, ripeness is a question of subject matter
jurisdiction.” Id. (citing Sansotta v. Town of Nags
Head, 724 F.3d 533, 548 (4th Cir. 2013)). Defendants
here assert that “Plaintiffs do not take issue with
any current prepublication review decision, and
their abstract fears about how the system might
operate in the future are therefore divorced from any
immediate, concrete factual setting.” ECF No. 30-1
at 35–36. Defendants’ argument thus essentially
reduces to the claim that no challenge to PPR should
be allowed to proceed except for after-the-fact
appeals in individual cases of agency review.
As the Fourth Circuit has explained, however,
“[m]uch like standing, ripeness requirements are
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also relaxed in First Amendment cases.” Cooksey,
721 F.3d at 240 (citing New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th
Cir. 1995)). “Indeed, ‘First Amendment rights ... are
particularly apt to be found ripe for immediate
protection, because of the fear of irretrievable loss.
In a wide variety of settings, courts have found First
Amendment claims ripe, often commenting directly
on the special need to protect against any inhibiting
chill.’ ” Id. (quoting Gonzales, 64 F.3d at 1500).
Plaintiffs’ standing here is premised on precisely
such a chill, and “standing and ripeness should be
viewed through the same lens.” Id. As discussed
previously, Plaintiffs have plausibly alleged that
they have declined to write about certain topics as a
result of past experiences with PPR and have
accepted redactions rather than challenged them in
the interest of timely contributing to public debates.
See ECF No. 1 ¶¶ 64, 66, 78, 80, 92–93, 110, 112,
118–19. In other words, Plaintiffs are currently
subject to PPR regimes that they reasonably allege
require them to self-censor. Accordingly, Plaintiffs’
claims challenging the alleged constitutional
infirmities in those regimes are ripe for
adjudication.
C.
Merits
1.
First Amendment Claim
The Court thus turns to the merits of Plaintiffs’
claims, beginning with the primary claim that
features of Defendants’ PPR regimes violate the
First Amendment. While Plaintiffs discuss several
ways in which they allege the regimes contravene
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constitutional speech protections, the overarching
theme is that the regimes constitute “a far-reaching
system of prior restraints” that invest reviewing
agencies with excessive discretion, allowing them to
require submission of materials that do not include
classified information and unwarrantedly demand
redactions and excisions. ECF No. 33 at 8; see also
ECF No. 1 ¶ 120. Defendants argue that the PPR
regimes are not prior restraints and that the sole
reason PPR authorities require changes to
submissions is that they contain classified material.
ECF No. 30-1 at 44. To the extent that the regimes
require submission and redaction of materials that
may not include classified information, Defendants
contend, the Supreme Court in Snepp v. United
States found such requirements fully consistent with
the First Amendment. See id. at 38–39 (citing
Snepp, 444 U.S. at 511–13). The Court first
discusses Snepp before turning to its implications for
Plaintiffs’ claim.
Snepp involved a former CIA agent who
published a book about his experiences without
submitting it to the agency for PPR, violating
agreements he had signed when he joined and
departed the agency. 444 U.S. at 507–08. In the first
agreement, Snepp promised “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.” Id. at 508. In the departure agreement,
Snepp “reaffirmed his obligation ‘never’ to reveal
‘any classified information, or any information
concerning intelligence or CIA that has not been
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made public by CIA ... without the express written
consent of the Director of Central Intelligence or his
representative.’ ” Id. at 508 n.1.
The government brought suit to enforce the
agreements after Snepp published his book. Id. at
508. In ruling for the government, the trial court
“enjoined future breaches of Snepp's agreement” and
“imposed a constructive trust on Snepp's profits,”
finding that Snepp had breached fiduciary
obligations to the agency. Id. (citing 456 F. Supp.
176, 180–82 (E.D. Va. 1978)). The Fourth Circuit
affirmed in part and reversed in part, lifting the
imposition of the trust based on the government's
concession that the book contained no classified
intelligence and the court's finding that Snepp had a
First Amendment right to publish unclassified
information. Id. at 509–10 (citing 595 F.2d 926, 935–
36 (4th Cir. 1979)). “In other words,” the Supreme
Court explained, the Fourth Circuit “thought that
Snepp's fiduciary obligation extended only to
preserving the confidentiality of classified material.”
Id. at 510.
The Supreme Court ruled in favor of the
government and reinstated the constructive trust,
concluding that the agreement Snepp signed when
he joined the CIA made clear that he “was entering
a trust relationship” and “specifically imposed the
obligation not to publish any information relating to
the Agency without submitting the information for
clearance.” Id. at 510–11 (emphasis in original).
Whether Snepp violated that trust, the Court
explained, did not depend on “whether his book
actually contained classified information.” Id. at
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511. The Court noted that the lower courts “found
that a former intelligence agent's publication of
unreviewed material relating to intelligence
activities can be detrimental to vital national
interests even if the published information is
unclassified.” Id. at 511–12.
“When a former agent relies on his own judgment
about what information is detrimental,” the Court
further noted, “he may reveal information that the
CIA—with its broader understanding of what may
expose classified information and confidential
sources—could have identified as harmful.” Id. at
512. In view of these principles, and unchallenged
evidence in the record that “Snepp's book and others
like it [had] seriously impaired the effectiveness of
American intelligence operations,” the Court
approved the lower courts’ conclusions that “Snepp's
breach of his explicit obligation to submit his
material—classified or not—for prepublication
clearance has irreparably harmed the United States
Government.” Id. at 512–13. The Court concluded
that in order to deter future breaches of trust similar
to Snepp's, a constructive trust was the appropriate
remedy. Id. at 515–16.
While it was not the primary focus of its opinion,
the Court also addressed and rejected Snepp's
argument that the agreement he signed when he
joined the CIA was “unenforceable as a prior
restraint on protected speech.” Id. at 509 n.3. The
Court agreed with the Fourth Circuit that the
agreement was “an ‘entirely appropriate’ exercise of
the CIA Director's statutory mandate to ‘protec[t]
intelligence sources and methods from unauthorized
88a
disclosure, 50 U.S.C. § 403(d)(3).” Id. (alteration in
original) (citing 595 F.2d at 932).9 The Court also
explained that “even in the absence of an express
agreement ... the CIA could have acted to protect
substantial government interests by imposing
reasonable restrictions on employee activities that
in other contexts might be protected by the First
Amendment.” Id. (citing U.S. Civil Serv. Comm'n v.
National Ass'n of Letter Carriers AFL-CIO, 413 U.S.
548, 565 (1973)).
Finally, the Court declared that “[t]he
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,” and concluded
that “[t]he agreement that Snepp signed is a
reasonable means for protecting this vital interest.”
Id. In responding to arguments made in a dissent,
the Court described the logic of PPR, explaining that
while “neither the CIA nor foreign agencies would be
concerned” if information that “in fact ... is
unclassified or in the public domain” is published,
“[t]he problem is to ensure in advance, and by proper
procedures, that information detrimental to
national interest is not published.” Id. at 513 n.8.
“Without a dependable prepublication review
procedure, no intelligence agency or responsible
Government official could be assured that an
employee privy to sensitive information might not
conclude on his own—innocently or otherwise—that
That statutory duty is now vested in the Director of
National Intelligence and codified at 50 U.S.C. § 3024(i)(1).
9
89a
it should be disclosed to the world.” Id. The Court
finally rejected the suggestion that its holding would
“allow[ ] the CIA to ‘censor’ its employees’
publications,” finding that Snepp's agreement
“requires no more than a clearance procedure
subject to judicial review.” Id.
Defendants argue persuasively that Snepp
controls this case. ECF No. 37 at 8–11. In short,
Defendants maintain that Snepp established a
reasonableness standard for evaluating federal
employee speech restrictions that further the
government's compelling interest in protecting
classified information, and that the PPR regimes
here satisfy that standard in both their scope and
the procedures they utilize. ECF No. 30-1 at 36–37;
ECF No. 37 at 8–9. Defendants’ position is supported
by case law from the D.C. and Second Circuits
recognizing that Snepp confirmed both the
constitutionality of PPR generally and that federal
employees’ agreements not to disclose classified
information waive First Amendment rights to
publish that material. See Stillman v. CIA, 319 F.3d
546, 548 (D.C. Cir. 2003) (holding that a former
employee of a federal laboratory who signed a PPR
agreement had “no first amendment right to
publish” classified information”); Wilson v. CIA, 586
F.3d 171, 183–84 (2th Cir. 2009) (accepting and
applying the holding of Stillman to a former CIA
agent).
Both Circuits have also held, echoing Snepp, that
the CIA's PPR requirement “is not ... a ‘system of
prior restraints’ in the classic sense.” Wilson, 586
F.3d at 183 (quoting N.Y. Times Co. v. United States,
90a
403 U.S. 713, 714 (1971)); McGehee v. Casey, 718
F.2d 1137, 1147–48 (D.C. Cir. 1983) (holding that
“neither the CIA's administrative determination nor
any court order in this case constitutes a prior
restraint in the traditional sense upon [the plaintiff]
or any other party”). The Second Circuit in Wilson
also noted two key additional Supreme Court
precedents, both of which cite generally to Snepp in
discussing the permissibility of restrictions on
government employee speech. See 586 F.3d at 183.
In United States v. Aguilar, the Court stated that
when a government employee “voluntarily
assume[s] a duty of confidentiality, governmental
restrictions on disclosure are not subject to the same
stringent standards that would apply to efforts to
impose restrictions on unwilling members of the
public.” 515 U.S. 593, 606 (1995) (citing Snepp, 444
U.S. 507). Similarly, in United States v. National
Treasury Employees Union (“NTEU”), the Court
noted that it has “recognized that Congress may
impose restraints on the job-related speech of public
employees that would be plainly unconstitutional if
applied to the public at large.” 513 U.S. 454, 465
(1995) (citing Snepp, 444 U.S. 507).
Plaintiffs ask the Court to disregard this body of
case law and treat Defendants’ PPR regimes as
presumptively unconstitutional prior restraints
under the framework established by the Supreme
Court in 1965 in Freedman v. Maryland. ECF No. 33
at 24–25. As mentioned previously, the Court in that
case rejected a Maryland statute that required
approval from a state board before publicly
exhibiting films but set no time limit for the board's
review and did not assure prompt judicial review.
91a
380 U.S. at 54–55, 58. The Court held that to comply
with the First Amendment, a system requiring prior
submission of films must include “procedural
safeguards” that both place on the censoring
authority the burden of proving the film is
unprotected expression and require the censor to
either grant a license or file a court action to “assure
a prompt final judicial decision.” Id. at 58–59.
Plaintiffs also argue, citing the Supreme Court's
rejection of a parade permit ordinance in
Shuttlesworth v. City of Birmingham, that the PPR
regimes must include “narrow, objective, and
definite standards to guide the [reviewing]
authority.” ECF No. 33 at 25 (citing 394 U.S. 147,
150–52 (1969)).
Plaintiffs’ position is simply untenable in light of
Snepp. The Court there unquestionably rejected the
argument that the CIA's PPR regime was a prior
restraint and upheld the validity of Snepp's
agreements “not to divulge classified information
and not to publish any information without
prepublication clearance.” 444 U.S. at 508, 509 n.3.
Multiple courts of appeals have recognized and
applied that holding, see Wilson, 586 F.3d at 183;
McGehee, 718 F.2d at 1147–48 (D.C. Cir. 1983); see
also Stillman v. CIA, 517 F. Supp. 2d 32, 38 (D.D.C.
2007) (citing Snepp and stating that “[t]he Supreme
Court has already decided that a prepublication
review requirement imposed on a government
employee with access to classified information is not
an unconstitutional prior restraint.”). Plaintiffs
make several arguments here to attempt to
persuade the Court to depart from these precedents.
None are persuasive.
92a
First, Plaintiffs observe that the Fourth Circuit
characterized the CIA's PPR regime as a “prior
restraint” in United States v. Marchetti, a 1972
decision upholding the secrecy agreement of a
former CIA employee and affirming an injunction
barring him from violating it by publishing
materials discussing his work without submitting
them for PPR. 466 F.2d 1309, 1311–13 (4th Cir.
1972). While that is an accurate summary of the
decision, it is at best doubtful whether Marchetti’s
reasoning survived Snepp, given the Supreme
Court's rejection of Snepp's argument to that effect
and its conclusion that the CIA could have imposed
restrictions on disclosure “even in the absence of an
express agreement.” 444 U.S. at 509 n.3. Moreover,
even if Marchetti does remain intact, the court there
upheld the CIA's PPR system, noting that under
Freedman, “some prior restraints in some
circumstances are approvable of course” and that
“the Government's need for secrecy in this area lends
justification to a system of prior restraint against
disclosure.” 466 F.2d at 1316–17 (citing Freedman,
380 U.S. 51).
Plaintiffs next attempt to distinguish the D.C.
and Second Circuit cases that Defendants cite on the
ground that they involved as-applied challenges to
PPR while Plaintiffs’ challenge here is facial. ECF
No. 33 at 26. Plaintiffs neglect to explain the
significance of that distinction, however, and as
Defendants correctly observe, plaintiffs bringing
facial challenges have a greater burden than those
merely challenging application of a provision to
themselves. See United States v. Stevens, 559 U.S.
460, 472–73 (2010); see also Wash. State Grange v.
93a
Wash. State Republican Party, 552 U.S. 442, 449–50
(2008) (citing United States v. Salerno, 481 U.S. 739
(1987)). Plaintiffs also attempt to undermine Snepp
by characterizing its First Amendment analysis as
“a cursory footnote” and by noting that the Court
decided the case without oral argument or briefing
on the merits. ECF No. 33 at 40–41. This Court will
decline to discard a controlling Supreme Court
precedent on such grounds.
More substantively, Plaintiffs argue that Snepp
was decided on narrow grounds specific to Snepp's
role as a former CIA agent with access to “some of
the government's most closely held secrets,” thus
leaving open questions about whether PPR
requirements could constitutionally be applied to
other CIA employees or employees of other agencies.
Id. at 40–41. Plaintiffs further argue that the Court
in Snepp “had no occasion to consider the
constitutionality of the specific features of the CIA's
regime at issue here, let alone the specific features
of the other agencies’ regimes,” nor “the scope of the
CIA's submission requirement” or of its “review
standards.” Id. at 40. In essence, Plaintiffs ask the
Court now to limit Snepp to its facts. The Court will
decline to do so for three reasons.
First, it is apparent that for the Court in Snepp,
the structure of the CIA's PPR regime and the scope
of its requirements were irrelevant in light of the
obligations contained in the agreements Snepp had
voluntarily signed, both of which the Court took care
to quote in their entirety. See 444 U.S. at 507–08 &
n.1. The Court was plainly aware that Snepp's
secrecy agreements barred him from publishing any
94a
information about the CIA or his employment there,
classified or not, but nonetheless found those
requirements consistent with the First Amendment.
Id. at 508. The Court emphasized that the
government's concessions that Snepp had a general
right to publish unclassified information and that
his book contained no classified material did not
“undercut[ ] [the government's] claim that Snepp's
failure to submit to prepublication review was a
breach of his trust.” Id. at 511. In short, the Court's
analysis indicates that it took into account the broad
scope of the agency's submission and review
requirements and found they created no obstacle to
enforcing the PPR agreements Snepp had entered.
Second, Plaintiffs offer little basis to distinguish
between Snepp and other CIA employees or
employees of other agencies. Plaintiffs assert that in
his role at CIA, Snepp had access to some of the
government's “most closely held secrets,” a phrase
Plaintiffs use repeatedly in their briefing but fail to
define. ECF No. 33 at 40. While Plaintiffs correctly
note the Court's statement that “[f]ew types of
governmental employment involve a higher degree
of trust than that reposed in a CIA employee with
Snepp's duties,” that statement served to support
the possibility that Snepp's trust relationship with
the CIA would exist even without a written
agreement. ECF No. 33 at 40 (quoting 444 U.S. at
511 n.6). The primary focus of the decision, however,
was Snepp's breach of his secrecy agreements, and
there is no indication that the ruling was intended
to be limited to CIA employees in Snepp's position.
See Nat'l Fed'n of Fed. Emps. v. United States, 695
F. Supp. 1196, 1201 (D.D.C. 1988) (“That the
95a
agreement in Snepp covered only ‘secret’
information and was executed only by CIA
employees does not change the gravity of the
government's interest in assuring the secrecy of
national security information, nor do these
distinctions
render
the
[federal
employee
nondisclosure] agreements [challenged in this
action] a less reasonable means for protecting that
interest”).
Finally, even if Plaintiffs were correct that Snepp
was a narrow decision that concerned only high-level
CIA employees, the considerations that Plaintiffs
assert the Court failed to address in the case have
little bearing on the constitutionality of other PPR
regimes unless they qualify as prior restraints under
Freedman and its progeny. Those considerations
include the permissible scope of a submission
requirement, permissible purposes of review, and
“procedural
protections
that
might
be
constitutionally required.” ECF No. 33 at 41.
Because Plaintiffs derive those concerns from prior
restraint doctrine, and because Snepp found that
doctrine does not apply in this context, that Snepp
did not raise them is not a distinguishing limitation
of the decision but rather an expected feature.
Because
none
of
Plaintiffs’
arguments
distinguishing Snepp or limiting its reach are
persuasive, Plaintiffs remain bound by its holding
that prior restraint doctrine does not apply to PPR
regimes imposed to prevent publication of classified
information. Accordingly, Plaintiffs’ arguments that
the regimes at issue here do not meet the
requirements of prior restraint doctrine must fail.
96a
Such arguments constitute the majority of Plaintiffs’
Opposition to Defendants’ Motion to Dismiss:
Plaintiffs assert that Defendants’ “submission and
censorship standards are vague, subjective, and
overly broad” – as opposed to the “narrow, objective,
and definite” requirement set by the Supreme Court
in Shuttlesworth – and “lack constitutionally
required procedural safeguards” that the Court
established in Freedman. See ECF No. 33 at 26–27,
36. Because those requirements are inapplicable or
irrelevant in light of Snepp, Plaintiffs’ many
arguments relying on them cannot support their
First Amendment claim.
Plaintiffs are therefore left with demonstrating
that the PPR regimes fail the reasonableness test
that the Court established in Snepp. They attempt
to do so unconvincingly and in conclusory fashion by
citing to considerations discussed in Marchetti, the
continued viability of which this Court has already
questioned. Id. at 43–44. Plaintiffs alternatively
turn to a separate body of First Amendment doctrine
concerning restrictions on the speech of public
employees. In Pickering v. Board of Education of
Township High School District 205, the Supreme
Court explained that if the speech of public
employees “is of public concern, courts [assessing
such restrictions under the First Amendment] must
balance ‘the interests of the [employee], as a citizen,
in commenting upon matters of public concern and
the interest of the State, as an employer, in
promoting the efficiency of the public services it
performs through its employees.’ ” Liverman v. City
of Petersburg, 844 F.3d 400, 406–07 (4th Cir. 2016)
97a
(second alteration in original) (quoting 391 U.S. 563,
568 (1968)).
In its subsequent decision in NTEU, the Court
“addressed how courts should apply Pickering when
a generally applicable statute or regulation (as
opposed to a post-hoc disciplinary action) operates as
a prior restraint on speech.” Id. at 407. As the Fourth
Circuit has explained,
NTEU involved a statute that
prohibited federal employees from
accepting any compensation for giving
speeches or writing articles, even when
the topic was unrelated to the
employee's official duties. See [513
U.S.] at 457. Emphasizing that the
honoraria ban impeded a “broad
category of expression” and “chills
potential speech before it happens,” the
Court held that “the Government's
burden is greater with respect to this
statutory restriction on expression
than with respect to [the] isolated
disciplinary action[s]” in Pickering and
its progeny. Id. at 467, 468.
Accordingly, “[t]he 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.”
Id. at 468, (quoting Pickering, 391 U.S.
at 571). Further, the government “must
98a
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.
Id.
Citing case law from the Seventh and Second
Circuits, Plaintiffs here assert that NTEU
“effectively limits Snepp to its facts” and that
Defendants’ PPR regimes fail the test that case
establishes. ECF No. 33 at 43. Plaintiffs’ arguments
fail on both counts. First, both of the cases on which
Plaintiffs rely specifically note Snepp and the
distinct concerns at play with the speech of
individuals who have access to classified
information and are subject to PPR, such as
Plaintiffs in this case, as opposed to government
personnel generally. In Wernsing v. Thompson, the
Seventh Circuit noted that Snepp was decided in a
“context[ ] where the government presumably has a
heightened interest in preempting certain types of
speech.” 423 F.3d 732, 749 (7th Cir. 2005). While the
court noted that Snepp “predated the Supreme
Court's more exacting pronouncements on prior
restraints in NTEU” and another case, that dictum
does not purport to make a definitive statement
about how Snepp may have been modified in a way
that would support Plaintiffs’ claim. Id.
Plaintiffs also point to the Second Circuit's
decision in Harman v. City of New York, in which
that court held that a city policy restricting public
comments by certain agency employees was
99a
inconsistent with Pickering and NTEU. 140 F.3d
111, 124–25 (2d Cir. 1998). In rejecting the
defendants’ claim that the challenged policies were
necessary to protect the confidentiality of the
agencies’ cases and clients, the court distinguished
Snepp, stating “that case concerned materials
‘essential to the security of the United States and—
in a sense—the free world.’ ” Id. at 122 (quoting 444
U.S. at 512 n.7). The court also observed that
“[c]ourts traditionally grant great deference to the
government's interests in national defense and
security.” Id. (citing Brown v. Glines, 444 U.S. 348
(1980)). Because the issues at play here deal with
matters of national defense and security and not
local agencies, Harman provides little support for
Plaintiffs’ position.
Plaintiffs’ argument that the PPR regimes fail
the NTEU test is similarly unpersuasive. Quoting
from NTEU, Plaintiffs state that the regimes
implicate the core political speech of “a vast group of
present
and
future
employees,”
although
incidentally no Plaintiff here is a member of that
group. ECF No. 33 at 44 (quoting NTEU, 513 U.S. at
468). Plaintiffs then draw on a D.C. Circuit opinion
adding detail to the NTEU test, stating that “the
public's interest in hearing this speech is ‘manifestly
great,’ because ‘government employees are in a
position to offer the public unique insights into the
workings of government.’ ” Id. (quoting Sanjour v.
EPA, 56 F.3d 85, 94 (D.C. Cir. 1995) (en banc)).
Finally, Plaintiffs state that “Defendants’ regimes
are not ‘narrowly tailored to serve the government's
asserted interest,’ ” noting that courts have applied
such a requirement in NTEU analysis. Id. (quoting
100a
Wolfe v. Barnhart, 446 F.3d 1096, 1106–07 (10th Cir.
2006)).
In support of this tailoring claim, Plaintiffs argue
that “[t]he only legitimate interest served by [PPR]
is the prevention of inadvertent disclosures by
employees who submit to review,” which Plaintiffs
assert would be “served most directly” by statutes
criminalizing disclosure of sensitive information and
by “the availability of administrative and civil
sanctions for those who mishandle such
information.” Id. at 44–45. “Any residual need for
prepublication review can be served by a system far
more tailored than Defendants’ current regimes,”
Plaintiffs conclude. Id. at 45. Plaintiffs fail to
describe the nature of such a system, however,
except perhaps by unstated reference to their prior
restraint arguments. Moreover, this argument
appears to at least suggest, if not outright assert,
that no PPR regime could be sufficiently narrowly
tailored to satisfy the First Amendment. That claim
cannot be correct unless NTEU effectively abrogated
Snepp, a holding that the Court has no basis to reach
here.
Further, Plaintiffs’ argument that Defendants
have only a narrow interest in preventing
inadvertent disclosure ignores the Supreme Court's
pronouncements in Snepp about the government's
“compelling interest in protecting both the secrecy of
information important to our national security and
the appearance of confidentiality” that justifies PPR.
444 U.S. at 509 n.3; see also Weaver v. U.S. Info.
Agency, 87 F.3d 1429, 1441 (D.C. Cir. 1996)
(upholding a PPR regime for employees of the State
101a
Department and related agencies and noting this
component of Snepp as speaking to the government's
interests). Plaintiffs’ assertion that penalties for
unauthorized disclosures are adequate to serve the
government's interest similarly ignores Snepp’s
explanation that “[t]he problem is to ensure in
advance, and by proper procedures, that information
detrimental to national interest is not published”
and that “[w]ithout a dependable prepublication
review procedure, no intelligence agency or
responsible Government official could be assured
that an employee privy to sensitive information
might not conclude on his own—innocently or
otherwise—that it should be disclosed to the world.”
444 U.S. at 513 n.8 (emphasis in original); see also
Weaver, 87 F.3d at 1442 (citing Snepp and stating
that “advance review is plainly essential to
preventing dissemination” of classified information).
In short, as with their prior restraint arguments,
accepting Plaintiffs’ position under NTEU requires
the Court to essentially treat Snepp as obsolete.
Plaintiffs’ desire for the Court to do so is clear in
their additional argument that the Court should
look past Snepp because of the expansion and
evolution of PPR over the last four decades. See ECF
No. 33 at 41. But as Plaintiffs are of course aware,
while the Supreme Court may question and
reexamine its precedents in light of societal change
and the passage of time, this Court has no such
power. While the allegations Plaintiffs have made
about the inadequacies and breadth of the
challenged PPR regimes do not appear inaccurate or
implausible, Snepp remains the precedent
governing the Court's evaluation of Plaintiffs’ First
102a
Amendment claim, and Plaintiffs have failed to
demonstrate that the regimes do not meet its low
threshold of reasonableness. Accordingly, Plaintiffs’
First Amendment claim will be dismissed.10
2.
Vagueness Claim
The Court finally turns to Plaintiffs’ vagueness
claim, which asserts that the PPR regimes are void
for vagueness under the First and Fifth
Amendments because they fail to provide former
government employees with fair notice of what they
must submit for PPR and what they can and cannot
publish, and because they invite arbitrary and
discriminatory enforcement. ECF No. 1 ¶ 121. “[T]he
void for vagueness doctrine addresses at least two
connected but discrete due process concerns: first,
that regulated parties should know what is required
of them so they may act accordingly; second,
precision and guidance are necessary s
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