The government will win its suit against Edward Snowden and his publishers Macmillan and Holtzbrinck, even though they admit there is nothing confidential in his new book Permanent Record, claiming only that he breached his obligation to submit it for prepublication review. Nearly 40 years ago, in United States v. Frank W. Snepp III, the Supreme Court held that the First Amendment is not violated when the government requires employees to submit publications for prior review and that employees who attempt to avoid review requirements can suffer financial repercussions. (In 1977, Frank Snepp, a former employee of the CIA who had agreed not to divulge classified information, published a book about CIA activities in South Vietnam. The Supreme Court in 1981 said Snepp and his publishers were enjoined from future publication without prior review by the government and may suffer financial consequences.)
The government did not claim that there was any classified information in Snepp’s book and does not now claim there is any classified information in Snowden’s book.
The government is not trying to stop Snowden’s book from being published. Instead, the suit asks the court to “Permanently enjoin Snowden from any further violations from his contractual and fiduciary obligations, including but not limited to public speeches discussing Permanent Record; any further written works and any additional speeches that are within the scope of his prepublication review obligations without first undertaking the prepublication review process.”
In the Snepp case, three judges dissented. Justice John Paul Stevens, speaking on his own behalf and on behalf of Justices William Brennan and Thurgood Marshall, said, “the Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen’s right to criticize his government. Inherent in this prior restraint is the risk that the reviewing agency will misuse its authority to delay the publication of critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks. It would take more than the Court has written to persuade me that that burden has been met.”
The present court, while seemingly cavalier about overruling other precedents, will not overrule Snepp.
The prepublication review process is often fraudulent. In the past, the review process has been used to delay books interminably—leading to long negotiations in which the author is asked to redact large sections of the book. This process prevents people from writing timely books about how the government works. Most often authors will self-censor or withdraw their books. Or if they anticipate problems down the line, they may not even start to write. Over 17 federal agencies currently require current or former employees to seek prepublication review.
Critical timely information is thus often withheld from the public, even though it is not solely classified information that the government is withholding. The review process does not limit the discretion of government censors, and as a result, political speech critical of the government is withheld—a clear violation of the First Amendment.
On April 2, 2019, the Knight First Amendment Institute at Columbia University and the ACLU filed a lawsuit in Maryland on behalf of five former intelligence agency employees and military personnel claiming they had submitted manuscripts for review and had gone through extraordinary delays. They claim that the process invites arbitrary and discriminatory enforcement.
There are many different ways in which the government can stop a book. In 1991 I filed suit on behalf of Jeffrey Toobin, a former member of the Iran/Contra prosecution staff whose memoir Opening Arguments—A Young Lawyer’s First Case: US v. Oliver North was published by Penguin Books that year. He submitted the book for prepublication review—as he was required to do—but when the government delayed granting him permission to publish for months, I proceeded with a lawsuit in the federal court in New York to allow publication. After the CIA cleared the material for publication, the Department of Justice was directed to take “all appropriate administrative steps with respect to the dissemination and threatened publication” of Toobin’s book. The government then contradicted itself and wrote to the Bar Association claiming that Toobin had violated his legal responsibilities under the Code of Professional Responsibility. Judge John Fontaine Keenan, after a trial, rejected the government’s attempt to stop the book’s publication.
No author should have to go through what Toobin went through. He says he feared becoming the first person jailed in the Iran-Contra affair, in a fight over what he considered government censorship. “It was a nightmare,” he told me, “a total nightmare. FBI agents were out interrogating my friends about this book.”
In the end, the First Amendment arguments prevailed. It may be that for future whistle-blowers the best procedure is to start the prepublication review and then try to persuade a court, as we did with Judge Keenan, that the delay violates the First Amendment.
Meanwhile, Snowden sits in Russia, a place he did not want to be, and faces a death sentence if he comes back. The government will claim in a criminal case that Snowden, as Daniel Ellsberg was accused of doing before him, has seriously damaged the country and should be executed. I remember being with Dan before he released the Pentagon Papers and telling him he would most certainly be convicted—and that he might be executed—even though we could not truly see how his releasing papers hurt the government. In the end, the government over-reached, breaking into Ellsberg’s psychiatrist’s office, and all charges against him were dismissed.
The Trump administration’s claim that Snowden seriously hurt the United States seems equally false. If he can ever get a fair trial, I suspect he, too, will be vindicated.