As a condition of access to classified information, most employees of the U.S. intelligence community are required to sign nondisclosure agreements that mandate lifetime prepublication review. In essence, these agreements require employees to submit any works that discuss their experiences working in the intelligence community—whether written or oral, fiction or nonfiction—to their respective agencies and receive approval before seeking publication. Though these agreements constitute an exercise of prior restraint, the Supreme Court has held them constitutional. This Note does not argue for or against the constitutionality of prepublication review; instead, it explores how prepublication review is actually practiced by agencies and concludes that the current system, which lacks executive-branch-wide guidance, grants too much discretion to individual agencies. It compares the policies of individual agencies with the experiences of actual authors who have clashed with prepublication-review boards to argue that agencies conduct review in a manner that is inconsistent at best, and downright biased and discriminatory at worst.
The level of secrecy shrouding intelligence agencies and the concomitant dearth of publicly available information about their activities make it difficult to evaluate their performance and, by extension, the performance of our elected officials in overseeing such activities. In such circumstances, memoirs and other forms of expression by former agency employees become extremely valuable. The potential for discriminatory review—the approval of works that portray agencies in a positive light and the suppression of works more critical in tone— illuminates the need for an improved system of prepublication review: one that respects the intelligence community’s need to protect legitimate national-security information but demands more robust protections for the First Amendment rights of potential authors and the public’s need for information with which to evaluate the highly secretive activities of their government. This Note concludes by arguing that action is required from all three branches of government to improve the system of prepublication review.