Well, the ACLU is at it again. This time, they claim the federal government is censoring former intelligence employees and members of the military. In fact, it claims there is a “system of lifelong censorship that the government imposes on former intelligence agency employees and military personnel.”  Horrors of horrors. How dare the government have an interest in what men and women who had been in the position of knowing national security secrets might reveal in the chase of the almighty dollar.

You see, that’s what this comes down to. The so-called censorship isn’t about being able to talk to folks about anything and everything. It centers on what these men and women can write about once they leave government service. In other words, what they can sell to publishers in an attempt to capitalize off their federal service.

Specifically, what the ACLU is up in arms about is the requirement of a pre-publication review. According to the ACLU, “The review process frequently results in delays, sometimes severe ones, that prevent the people who know the most about how the government actually works from contributing to critical public debates.”

The lawsuit.

You knew there had to be one if the ACLU was involved. Yesterday, the ACLU and Knight First Amendment Institute at Columbia University filed suit challenging the current review system. Their clients are five former intelligence and military members.

There are approximately 17 government agencies with a pre-publication review policy in place. This policy prohibits former employees from “discussing or writing about topics related to their tenure” without it being reviewed first.

Note the key phrase: topics related to their tenure.

Among the complaints about the policy are allegations that the agency doesn’t have to give any explanation for why it requests redactions, that there is no guarantee of a quick review and that these former employees are often asked to redact information they garnered from sources other than what was available to them while still employed by the government.

Noting that federal law already prohibits disclosure of classified information, the plaintiffs say “arbitrary and discriminatory” pre-publication review rules violate former officials’ First Amendment free speech rights, and their Fifth Amendment rights to due process.

‘The government has a legitimate interest in protecting bona fide national-security secrets…But the imposition of a prior restraint is an extreme measure,’ the suit alleges.” (Wall Street Journal)

Wait, what?

Freedom of speech is one of the building blocks of our nation. No one should take it for granted. But there are limits to it. Some of those limits are easily identified while others are like pornography; the courts will know it when they see it. However, to say the pre-publication rule is an example of prior restraint is, well, straining the definition of the term.

The government isn’t telling these former employees they can’t talk about or write about everything they did while in government service without any recourse. If that former employee decides to write a book, they are free to do so. They simply have one additional step to the process that most other writers and wannabe writers don’t have: they must submit the finished manuscript to the government review process. Considering that these men and women involved in this law suit were members of the military or part of the intelligence community, this makes a great deal of sense. The last thing the government and this country needs is for state secrets to be revealed.

But let’s look at what the ACLU and the Knight First Amendment Institute actually allege beyond prior restraint. (KFAI also filed a week suit against President Trump claiming he violated the First Amendment by blocking a handful of people from his Twitter feed.)

1. “discussing or writing about topics related to their tenure”: As noted above, these former employees are allegedly forbidden from discussing or writing about topics related to their tenure. That last little bit, “related to their tenure” is the key here. If someone spent their career examining the Russian intelligence community and making recommendations on what we should do, anything they want to write or say about this topic will be closely examined, as it should be. But, if they want to write about the meals served at the White House, there will be no problem.
2. No guarantee of a quick review process. This is where I laugh more than a bit hysterically. There’s no guarantee of that in publishing period. The typical new author can spend years trying to find an agent and publisher. Many never do. So pardon those who have been working in the trenches for years when they have little pity for a former government employee who wants to cash in on their service to make a buck by playing politics in publishing.
3. No requirement that the government explain why they want certain information redacted. If I rolled my eyes any more, they’d fall out of my face and onto the floor. I’d ask if the attorneys, or more likely paralegals, who drafted the filings in this case had ever worked in the business world but I know the answer. So they don’t understand the reality that most employers don’t and won’t explain such decisions. It’s not just the federal government. Don’t like it, then don’t go to work for them.

Not the first challenge

This isn’t the first time the pre-publication rule has been challenged in the courts. In the 1970’s the Supreme Court dismissed the First Amendment claims “without briefing or a hearing on the merits of the claim — in a single footnote.”  So why now, after all these years, is there a need to toss out the review process? Could it be because of who sits in the Oval Office?

Would the ACLU be that shallow? Forget I asked. We all know the answer.

What you have to hunt for is how the number of requests for review have increased over the years. In the early 1970s, the CIA reviewed 1,000 pages. That number increased to 150,000 in 2014. “In 2015, the agency received 8,400 submissions, including 3,400 book manuscripts, up from 43 submissions for review in 1977.”

3,400 book manuscripts.

Think about that and think about the number of hours required to review and verify/check the information in each of those books.

And the plaintiffs complain about having to wait to hear back from the government.

Promises made

The five named plaintiffs were all authorized high-level security clearance in their government jobs. They were required to sign nondisclosure agreements when they were hired and were subjected to the prepublication review requirements.” (Washington Post)

They had to sign NDAs. So why are they surprised, much less outraged, that they have to submit their writing for review before publication? The answer is simple: when they decided to profit off their government service.

One of the five named defendants is Mark Fallon, formerly with NCIS. Let me tell you, he’s not Leroy Jethro Gibbs.

It took eight months, with the help of the ACLU and the Knight Institute, before Fallon received a prepublication review decision. According to Fallon, the government’s redactions were not for classified, national security information. Instead, they requested Fallon redact names from his book that ‘would be embarrassing’ and information that was ‘already in the public domain’ through published unclassified congressional reports.”

Notice the problem here? It is the same problem you have with so many lawsuits. He claims the other side did this or that without offering proof. Now, that’s what you do in an original filing, hoping the other side either fails to respond or capitulates. The government is going to do neither in this case. At least that’s my guess. These defendants will be lucky if they get more than a footnote out of the Supreme Court.

I’m not saying the government review process is without fault. Nothing is perfect. But the idea that these men and women who have signed NDAs, who know the process going in and who now want to throw that process out the window in favor of chasing the almighty buck (especially if it can embarrass the current administration) annoys me to no end.

Fallon’s pissing and moaning about the system began in 2017. In  a new interview, he claims it took the government eight months to complete the pre-publication review. The book was published October 2017. Boo hoo. His book was published much quicker than the Average Joe New Novelist is published.

“They denied my voice, and they denied the public the ability to hear my experience,” he claims. How did the government deny him? His book was published. He made his point. He got paid by his publisher. Where is the truth in his claims?

What delay?

Let’s look at another former federal employee who wrote a book about his experiences, a book that also had to be vetted before it could be published. James Comey, former director of the FBI, penned A Higher Loyalty. It covers not only his life before going into government service but his life while there. President Trump fired Comey May 9, 2017. His book was published April 17, 2018, less than a year after he left government service.

That means he at least finished writing the book, had it reviewed, shopped it around and got it published and on bookshelves in under a year. Yes, the publisher pulled strings to get it done well ahead of the usual turnaround time for books. But they still had to wait for the government review process.

But that process is, according to the law suit, too long and onerous.

Verdict

This is yet another waste of time and money. It is an attempt to strike at the Administration by a small group of former employees who don’t want to live up to the promises they made when they signed their NDAs. They want to capitalize on their experience and they either don’t care or aren’t considering the possibility that they might reveal government secrets in the process.

The idea that a book can be published and then reviewed for potential problems is ludicrous. It is a classic example of closing the barn door after the horses escape.

How will the court rule? Who knows. They may throw out the pre-publication review process altogether or they may instruct the agencies to amend it. All that can be said for certain is that the only winners in this will be the attorneys. Oh, the plaintiffs will get some short term gains from it by making the media rounds and drumming up some additional sales of their books. But, in a day or two, they will become past news as the national attention turns to something else.

Too bad these plaintiffs have forgotten what it means to give your word and live up to it.

Featured Image by harshahars via Pixabay. Licensed.