NEFAC, Press Advocates Argue Against Unconstitutional Pre-Publication Review System

CONTACT Justin Silverman | 774.244.2365 |


The New England First Amendment Coalition recently joined several press advocates to denounce a federal pre-publication review system that erodes the constitutional rights of publishers.

“Black-letter law holds that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” explained the groups in a Dec. 29 amicus brief drafted by the Reporters Committee for Freedom of the Press.

“Few protections for a free press and an informed public are more fundamental,” they wrote. “Still, the government supervises the publications of a vast class of current and former employees in just that way — notionally screening their contributions to public life for classified information, but in practice exercising a discretion so standardless it threatens any speech embarrassing to the powers-that-be.”

The brief was filed in Edgar v. Haines, a case recently heard by the U.S. Court of Appeals for the Fourth Circuit. The court ruled that the prepublication review system challenged by the plaintiffs, five former public servants, is constitutional. Those plaintiffs are now asking the U.S. Supreme Court to review the decision.

In their brief, amici argued that the Fourth Circuit incorrectly relied on Snepp v. United States, a 1980 Supreme Court decision that allowed the government to take back profits a former CIA employee earned on a book about the agency. Pre-publication review, amici explained, should instead be bound by the limits consistently imposed on other prior restraints since the Pentagon Papers case.

“Because of the secrecy that surrounds matters of national security, foreign policy, and intelligence gathering, current and former officials are often particularly or uniquely well-situated to provide the electorate with accurate information and valuable analysis,” amici wrote. “As such, it is of paramount importance that the pre-publication review system operate within established constitutional boundaries.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. The coalition regularly writes and joins amicus briefs in cases involving First Amendment freedoms and the public’s right to know about government. All coalition briefs, advocacy letters and statements can be found here.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Leadership Circle donors include Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters include Boston University, WBUR-Boston, the Academy of New England Journalists, the Society of Professional Journalists Foundation, Genie Gannett and Linda Pizzuti Henry.