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The government’s employee-censorship regime has a new challenger: A former defense secretary

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  1. First Amendment
A brewing storm over pre-publication review?

Prior restraints — regulations that purport to prohibit speech before it occurs, rather than punish it after the fact — are “the most serious and the least tolerable infringement on First Amendment rights,” or so the U.S. Supreme Court has said. But for decades the government has asserted the power to require thousands of employees, even after they leave federal service, to clear any public writing with official censors in order to scrub it for information that could harm national security.

As professors Jack Goldsmith and Oona A. Hathaway have explained based on firsthand experience, that process hands so much discretion to reviewers that the process can be misused to block disclosure of unclassified information that the government simply finds inconvenient or embarrassing. The predictable result is a chilling effect on former officials.

Now that practice faces an unusually high-profile objector: former Secretary of Defense Mark Esper, who served during the Trump administration and alleges in a new lawsuit that the Defense Department is improperly trying to trim information from his forthcoming memoir. (The New York Times, which first reported the news, has this story on the complaint.) Esper’s is far from the first legal challenge to the pre-publication review regime; depending on how you feel about the comparative seniority of secretaries of defense and national security advisers, though, he may be the highest-ranking official yet to draw its constitutionality into question. And it comes as the Supreme Court is asked to consider a more wide-ranging challenge to the government’s censorship practices, in a petition recently filed by attorneys at the American Civil Liberties Union and Knight First Amendment Institute at Columbia University.

That suit, Edgar v. Haines, is a facial challenge to the system brought by former employees of several different security agencies. The U.S. Court of Appeals for the Fourth Circuit turned it back — as federal courts have often turned back challenges to the government’s censorship practices — on the authority of Snepp v. United States, a 1980 Supreme Court decision that blessed the government’s efforts to claw back the profits a former CIA employee earned on a book about the agency. Snepp is not a model of clarity; the short, unsigned opinion dedicated just one footnote to the First Amendment interests at stake, and spent most of its length discussing the scope of Snepp’s fiduciary duties under his employment contract. We think the suggestion that Snepp controls any and all cases involving pre-publication review, even though the single contract before the Court in Snepp bears no resemblance to the sweeping system that exists now, is unreasonable, which is why the Reporters Committee filed a friend-of-the-court brief in support of the plaintiffs in Edgar (and, indeed, filed a brief all the way back in 1979 in support of Snepp).

Those plaintiffs are now asking the Supreme Court to correct the Fourth Circuit’s effort — or, if necessary, to overrule Snepp because of its inconsistency with the bedrock principles governing prior restraints. Needless to say, we’ll be tracking this case to see if the Supreme Court takes an interest.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.