The system amounts to a prior restraint on speech, because it gives the agencies the chance to censor manuscripts before their publication. Though prior restraints are usually unconstitutional, including in the national security context, the government argues that they are justified because they are imposed through nondisclosure agreements signed by employees.
But as our organization, the Knight Institute, and the American Civil Liberties Union argue in a case before a federal court in Maryland, the review system is far more sweeping than the government’s argument admits, and lacks the limits and safeguards that courts have required of prior restraints in other contexts.
All 17 intelligence agencies now require prepublication review for at least some former employees, and in many agencies, even for those who never had access to classified information. Submission requirements are vague and confusing and leave former employees uncertain of their obligations.
Review standards are similarly difficult to pin down. There are no real deadlines.