The Supreme Court on Monday refused to take the case of several former national security officials arguing the government’s prepublication review requirements for their books violates their first amendment rights.
The move upholds a Fourth Circuit Court of Appeals decision from last year that sided with the government in maintaining their right to review the work of former officials who score book deals once they leave the intelligence community.
The American Civil Liberties Union, which brought the case on behalf of five former national security officials, described a system in which officials were left to wait months for their work to be reviewed by the government, often to be told they must redact significant portions of their manuscripts.
“The submission requirements and review standards are confusing, vague, and overbroad. The government’s censorial decisions are inconsistent, unexplained, and influenced by authors’ viewpoints. Review frequently takes weeks or even months. And favored officials are sometimes afforded special treatment, with their manuscripts fast-tracked and reviewed more sympathetically, ”the ACLU wrote in a preview of its case.
Timothy Edgar, a former Office of the Director of National Security official for whom the case is named, was asked to “edit material largely relating to events that took place after he had left government,” according to the ACLU. Another plaintiff was asked to remove material “seemingly intended only to protect the government from embarrassment.”
But the courts determined that such restrictions were reasonable.
“This prepublication review process may be analogized to a funnel,” Judge Paul Niemeyer wrote for the Fourth Circuit. “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 editing – materials that actually contain classified or sensitive information. ”
Other former national security officials have had greater success in challenging limitations to publication of their work.
Former Defense Secretary Mark Esper, one of the highest ranking officials to challenge the system, proceeded with publication of his memoir, reaching an agreement with the Department of Defense after filing a suit.
“The US Government has absolutely no authority to prevent anyone from publishing unclassified information. That is an incontrovertible constitutional right and established by binding precedent, ”his attorney, Mark Zaid, wrote in a statement when they dismissed the case in February, calling the book an“ unvarnished ”account of his time in the Trump administration.
“Frankly, Secretary Esper has no interest in publishing properly classified information, which he has sworn to and has protected for decades,” he added.
Trump National Security Advisor John Bolton likewise had trouble securing approval for the release of his book, which was delayed several times amid haggling with the Trump administration over review from the National Security Council for his tell-all memoir.
The ACLU is now calling on Congress to limit the government’s power to review the manuscripts.
“The government’s prepublication review systems, in their current form, are broken. They subject millions of former government employees to censorship without any binding timelines or clear standards for review, opening the door to silencing speech because it is critical of the government – not because it holds any national security risk, ”Vera Eidelman, staff attorney with the ACLU’s Speech Privacy Technology Project, said in a statement.
“Now that the Supreme Court has refused to take corrective action, Congress should step in.”