“The court was of course right to reject the government’s request for a prior restraint, especially because the injunction the government sought here was broader than the one the Supreme Court rejected in the Pentagon Papers case,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University. “In other respects, though, the ruling is a troubling reaffirmation of broad government power to censor in the name of national security. The prepublication review system puts far too much power in the hands of government censors, and reform of this dysfunctional system is long overdue.”

A copy of yesterday’s brief can be found here.

On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit on behalf of five former public servants challenging the government’s prepublication review system. The plaintiffs argue that the system violates the First and Fifth Amendments. On April 16, 2020, granting the government’s motion to dismiss the case, a district court held that the plaintiffs had standing to pursue the challenge but that the prepublication review system is constitutional. Plaintiffs have appealed. More information about this lawsuit, Edgar v. Ratcliffe, is available here. 

An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here.

For more information, contact Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“There is simply no serious argument here that the government is entitled to a prior restraint against publication,” said Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University. “To grant a prior restraint in the circumstances presented here—with the book already having been distributed around the world—would make a mockery of the First Amendment.”   

The court should not take at face value the government’s claims that the book contains information whose disclosure should harm national security, the brief says: “As the government itself acknowledges, a senior career national security official informed the defendant, after leading a nearly five-month review, that the version of the book now in bookstores does not contain any classified information. That an assortment of political appointees now apparently claim, in sealed declarations, that they have discovered classified information that the National Security Council’s ordinary review channels missed is not irrelevant—but the Court should read these declarations with extreme skepticism.”

“This is yet another example of how the prepublication review system is broken and susceptible to abuse at the hands of the executive branch,” said Alex Abdo, Litigation Director at the Knight First Amendment Institute. “It makes no sense to give executive branch officials such broad power to silence their critics. The court should reject the White House’s futile effort to block publication of Bolton’s memoir.”

A copy of today’s brief can be found here.

On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit on behalf of five former public servants challenging the government’s prepublication review system. The plaintiffs argue that the system violates the First and Fifth Amendments. On April 16, 2020, granting the government’s motion to dismiss the case, a district court held that the plaintiffs had standing to pursue the challenge but that the prepublication review system is constitutional. Plaintiffs have appealed. More information about this lawsuit, Edgar v. Ratcliffe, is available here.

An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

The following response can be attributed to Jameel Jaffer, Executive Director at the Knight First Amendment Institute at Columbia University.

“The government’s complaint is strategically ambiguous about what relief it’s seeking, and against whom. But any effort to enjoin the publication of a book raises serious First Amendment concerns, and those concerns are heightened here because there are credible reports that the White House's interest is not in protecting national security but in suppressing criticism of the president.”

The following response can be attributed to Alex Abdo, Litigation Director at the Knight First Amendment Institute at Columbia University.

“The lesson here is that the prepublication review system is broken and susceptible to abuse. It makes no sense to give executive branch officials such broad power to censor books that are critical of executive branch officials. The courts should strike down the system and require Congress to fix it.”

On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit on behalf of five former public servants challenging the government’s prepublication review system. The plaintiffs argue that the system violates the First and Fifth Amendments. On April 16, 2020, granting the government’s motion to dismiss the case, a district court held that the plaintiffs had standing to pursue the challenge but that the prepublication review system is constitutional. Plaintiffs have appealed. More information about this lawsuit, Edgar v. Ratcliffe, is available here. 

An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

The following response can be attributed to Jameel Jaffer, Executive Director at the Knight First Amendment Institute at Columbia University.

“For good reason, American courts almost never issue prior restraints against the publication of matters of public concern. Prior restraints squelch speech before it occurs and almost always sweep too broadly. The request the government is making in this case is particularly disturbing against the background of credible reports that the White House’s real concern here is not safeguarding national-security secrets but suppressing criticism of the president. It’s highly doubtful that the government can meet the exceptionally high standard that must be met in order to justify an injunction against publication.”

The following response can be attributed to Alex Abdo, Litigation Director at the Knight First Amendment Institute at Columbia University.

“The lesson of this episode is that the prepublication review system is broken and susceptible to abuse. It makes no sense to give executive branch officials such broad power to censor books that are critical of executive branch officials. The courts should strike down the system and require Congress to fix it.”

On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit on behalf of five former public servants challenging the government’s prepublication review system. The plaintiffs argue that the system violates the First and Fifth Amendments. On April 16, 2020, granting the government’s motion to dismiss the case, a district court held that the plaintiffs had standing to pursue the challenge but that the prepublication review system is constitutional. Plaintiffs will file an appeal. More information about this lawsuit, Edgar v. Ratcliffe, is available here.

An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here. 

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

The following response can be attributed to Alex Abdo, Litigation Director at the Knight First Amendment Institute at Columbia University.

“John Bolton’s book is of pressing public concern, and yet whether it ever sees the light of day will be decided by the administration it implicates. This system gives the government wide leeway to censor speech that is critical for the public to hear. It would be egregious for the administration to suppress Bolton’s book to shield itself from damaging revelations, but the system could be used to do just that. This possibility illustrates exactly why the system should be replaced.”

On April 2, 2019, the Knight Institute and the ACLU filed a lawsuit on behalf of five former public servants challenging the government’s prepublication review system. The plaintiffs argue that the system violates the First and Fifth Amendments. More information about this lawsuit, Edgar v. Maguire, is available here.

An overview of the key features of the prepublication review regimes across 17 intelligence agencies can be found here.

For more information, contact Lorraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org, 646-745-8510

As one of us explained on Twitter a few hours ago, however, the fact that Bolton’s book is in the hands of the censors does not mean that Bolton could not share his story with the public now, if he wanted to—or that he could not have shared it last week, when it might have influenced the Senate, or six months ago, when it might have influenced the House.

If he wanted to, Bolton could this afternoon release a version of his story that avoided details that could plausibly be characterized as classified. He could do this in writing or in a press conference or interview. Technically, he would have to submit even this version of his story for prepublication review, to the extent he prepared notes for it, but his failure to submit wouldn’t result in significant legal exposure. The government couldn’t prosecute him for disclosing classified information if he hadn’t disclosed classified information. It couldn’t seize his proceeds—a la U.S. v. Snepp—if there were not any proceeds to seize. It could suspend or revoke his security clearance, but, practically speaking, this is probably the most it could do.

Another option for Bolton would be to file a lawsuit to force the government to review his book quickly. Bolton could do that this afternoon. These kinds of lawsuits are routine and not particularly complicated. And Bolton would have a strong case that time is of the essence, that the public interest in his story is immense, and that the delay in review is causing him irreparable harm.

There’s no doubt that Bolton would face serious criminal exposure if he simply published his book without waiting for a green-light from the censors. The National Security Council has already indicated its view that the book “appears to contain significant amounts of classified information,” including information “at the TOP SECRET level.” Particularly given the players involved, it doesn’t seem inconceivable that, if Bolton published his book without authorization, the Justice Department would file charges against him under the Espionage Act.  (That Act makes it a felony for government insiders to communicate information relating to the national defense.) But Bolton has other options. It seems reasonable to ask why he’s not taking advantage of them.

Like millions of others who once held a security clearance, Mr. Bolton, President Trump’s former national security adviser, is barred from publishing a book or blog post about his experience in government without first submitting it to official censors. As a result, what the public will see of Mr. Bolton’s account of malfeasance and corruption in the White House is, to a disturbing extent, up to the White House itself to decide.

The logic behind the requirement of prepublication review is easy to understand. Public servants with security clearances have access to classified information. The review system allows agencies like the Central Intelligence Agency and Defense Department to ensure that former employees who write books and other public materials don’t disclose secrets inadvertently. (Those who actually intend to disclose classified information don’t submit their manuscripts for government review, of course — and they can be prosecuted for revealing secrets.)

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. The agencies’ censors don’t usually explain their decisions. When they do, authors are afforded no meaningful opportunity to challenge them. Those who file lawsuits learn quickly that the courts almost always defer to the agencies’ decisions.

All this means that the prepublication review system provides government agencies with unchecked power to suppress speech. And as we and others have documented, the agencies frequently use their power not to protect national security secrets, but to protect officials from embarrassment, public scrutiny and accountability.

If the past is any guide, this is very likely how the White House will exploit the review system now. We have seen intimations of this already. Despite the obvious importance of Mr. Bolton’s account to the public’s understanding of Mr. Trump’s actions, the White House has not offered Mr. Bolton any assurance that his book will be reviewed quickly, or even before the publication date this spring.

The National Security Council’s records office, which is coordinating the review, apparently intends to scour the book not just for classified material but for information implicating executive privilege — a privilege that Mr. Trump and his lawyers have construed expansively in other contexts — though executive privilege is decidedly not a permissible basis for prior restraint. The White House has sent Mr. Bolton a letter expressly warning him against publishing the book.

Of course Mr. Bolton’s case is unusual, and it is possible that public and congressional pressure will force the White House to review his manuscript promptly and fairly. (Prominent Republicans, for their part, seem to be focused on persuading Mr. Bolton to “withdraw” his book, or failing that, on limiting the book’s audience to the senators hearing the impeachment case against Mr. Trump.)

But the spectacle of White House censors deciding, without any real constraint, whether to permit a former government official to publish a manuscript critical of the president should nonetheless provoke alarm.

The necessary changes to this process have been obvious for years: Prepublication review should apply to fewer people and fewer secrets. There should be narrower submission requirements, clearer censorship standards, enforceable deadlines and a meaningful right of judicial review. Mr. Bolton’s case surely underscores the urgency of these reforms.

It’s not just Mr. Bolton’s rights at issue here. Former government officials often have unique insights about the operation of government. When censors suppress these voices, they inflict a constitutional injury on the public as well. As Justice Sonia Sotomayor wrote for a unanimous Supreme Court in 2014, “Speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”

Mr. Bolton is an unlikely standard-bearer for the public’s right to know, having worked at the highest levels of an administration notorious for its hostility to the First Amendment. But everyone who values an informed public, and an accountable government, should be troubled that the fate of Mr. Bolton’s book is in the hands of the White House, and that government censors have so much control over what we will read, and when we will read it.

A version of this article appears in print on Jan. 31, 2020, Section A, Page 27 of the New York edition with the headline: We May Never See Bolton’s Book.