Memoirs of Former Public Officials and Prior Restraint

Photo Credit: Anna Moneymaker for The New York Times

​Over the weekend, former Secretary of Defense Mark Esper unveiled a lawsuit against the department he once led. As the law requires former U.S. officials to do, Esper submitted his memoir – A Sacred Oath – to the government for a review of any material that could damage national security. The Pentagon sent his manuscript back with redactions of words, sentences and whole paragraphs across about 60 pages. No written explanation for the redactions was offered.
 
A week before Esper filed suit to free his book from redaction, the American Civil Liberties Union and the Knight First Amendment Institute petitioned the U.S. Supreme Court to review this whole process of “prepublication review.” They acted on behalf of five former employees of the Office of Director of National Intelligence, the CIA, the Naval Criminal Investigative Service and the Marine Corps.
 
Prepublication reviews, once a limited program imposed on former CIA and other intelligence-agency employees, have since widened into a vast system of lifelong prior restraint applied to millions of Americans who were once in government service.
 
In the prepublication arena, ACLU and Knight are taking dead aim at a 41-year-old precedent, Snepp v. United States (1980). Frank Snepp was a CIA intelligence analyst in Saigon and one of the last Americans to leave after the collapse of the South Vietnamese regime. In private life, Snepp published a scathing book in 1977, Decent Interval, portraying the CIA as inept and the Nixon Administration as both self-deceiving and Machiavellian.
 
Snepp did not clear his book with the CIA, despite having signed an employment contract committing him to do so. When the agency sued Snepp, the former analyst argued that he was being subjected to prior restraint, a violation of the First Amendment. The Court disagreed. Six Justices upheld a lower court ruling that Snepp had breached the “constructive trust” between himself and the CIA. The Court also stripped Snepp of all his royalties, about $300,000.
 
The courts might also take note of a more recent standard, however, applied to former National Security Advisor John Bolton after he wrote a memoir, The Room Where It Happened. When officials in the Trump Administration sat on Bolton’s book, which included many anecdotes embarrassing to President Trump, Bolton published his book anyway. The Department of Justice sued for Bolton’s profits and launched a criminal investigation. In June, the current attorney general, Merrick Garland, dropped the lawsuit and investigation.
 
General Garland is moving toward a better approach, a direction that should be picked up by the courts. Revelations and insights from former government officials give Americans a sharper understanding of the workings of our government. The current prepublication system is too broad, too clunky, and a defilement of the First Amendment.