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Edgar v. Ratcliffe

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  1. Prior Restraint

Amicus brief filed by the Reporters Committee for Freedom of the Press

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: Aug. 28, 2020

Background: In April 2019, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union filed a lawsuit on behalf of several former employees of the CIA, Department of Defense, and Office of the Director of National Intelligence challenging the U.S. government’s prepublication review system. The plaintiffs argued that, over the decades, the prepublication review system has expanded far beyond the limited process by which the government sought to protect sensitive intelligence.

The U.S. District Court for the District of Maryland, however, dismissed the lawsuit in April 2020. In its opinion, the district court relied heavily on the U.S. Supreme Court’s 1980 ruling in Snepp v. United States, a case in which the federal government sued Frank Snepp, a former CIA employee, for failing to submit his book manuscript to the agency for review prior to publication. The Supreme Court sided with the government, writing that “Undisputed evidence in this case shows that a CIA agent’s violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA’s ability to perform its statutory duties.”

In August, the Knight First Amendment Institute and the ACLU appealed the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit, arguing that Snepp should not have controlled the trial court’s decision.

The plaintiffs filed their appeal a couple of months after the government attempted to block the publication and dissemination of a memoir by John Bolton, arguing that the former national security adviser failed to complete the prepublication review process. In June, a federal judge denied the government’s request.

Our Position: The Fourth Circuit should reverse the district court’s decision and rule that the government’s prepublication review system is unconstitutional.

  • The Bolton case — in which the government sought an injunction against not just the former national security adviser, but also his publisher and booksellers — sends a clear message that the modern prepublication review process could operate as a prior restraint against the media.
  • The recent uptick in “leak” prosecutions over the last decade is relevant to the district court’s analysis in finding that the terms of the government’s various prepublication review policies are not unconstitutionally vague.
  • Rampant overclassification heightens the risk that the prepublication regime will chill speech on public affairs.

Quote: “The prepublication review system, particularly in its current incarnation, chills vast amounts of speech with no bearing on classified information, let alone bona fide national defense information. It is, therefore, a prior restraint, requiring the government’s say-so before a former government official may discuss government affairs — even if that discussion could better inform the electorate without posing any danger to national security.”

Related: In 1978 and 1979, the Reporters Committee filed friend-of-the-court briefs with the Fourth Circuit and the U.S. Supreme Court in Snepp, arguing that requiring employees to agree to prepublication review as part of their employment contracts violated the First Amendment.

In June 2020, the Reporters Committee, joined by the Association of American Publishers, Dow Jones, The New York Times, and The Washington Post, urged a federal court to deny the government’s efforts to bar the publication and dissemination of Bolton’s book. In a friend-of-the-court brief, Reporters Committee attorneys argued that the government’s request for a temporary restraining order that would apply not just to Bolton, but also to the book’s publisher and booksellers who are not defendants in the case, amounted to an unconstitutional prior restraint.

The Reporters Committee frequently opposes prior restraint orders, which have garnered significant public attention this summer with the government’s attempts to block high-profile books about President Trump by Bolton and others. To read more about prior restraint and the Reporters Committee’s fight against the orders, check out our website’s prior restraint page.