US court rejects challenge of pre-publication review by ex-intelligence employees

4th US Circuit Court of Appeals in Richmond, Virginia

A COURT OF APPEALS in the United States state of Virginia has rejected a lawsuit by former intelligence employees who claimed that the system of pre-publication review violated their freedom of speech. The case centered on the requirement for current and former employees of American intelligence agencies to submit for review any material they intend to publish in the unclassified domain, in case it contains government secrets.

The lawsuit originated in 2019, when it was brought before a court by five former employees of the Central Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the Department of Defense. All five plaintiffs intended to publish books on topics including the history of the CIA, government surveillance, as well as the prevalence of sexual violence and racism in the US armed forces.

The plaintiffs claimed that the pre-publication review system is unclear and confusing, that its scope is too broad, and that the process takes too long. They also claimed that many of the edits made on their manuscripts aimed to protect government agencies from embarrassment and criticism, rather than protect national security. Furthermore, they claimed that many of the alleged secrets that were edited out of manuscripts referred to information that was already available in the open domain. All five plaintiffs were represented by lawyers from the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union. The government was represented by the US Department of Justice.

Last year, a US District Court in the US state of Maryland dismissed the claim on the grounds that the government was justified in wanting to protect its secrets, and that the pre-publication system was intricate but unambiguous. On Wednesday, the 4th US Circuit Court of Appeals in Richmond, Virginia, upheld the District Court’s ruling. In a unanimous vote, the court’s three judges concluded that, by voluntarily agreeing to submit to the pre-publication review system, the plaintiffs had waived their right to challenge the system’s legality under the 1st Amendment of the US Constitution.

Author: Ian Allen | Date: 24 June 2021 | Permalink