(This article was originally published on the Huffington Post, June 1, 2012)
As other parts of the Federal government begin to examine their own practices toward social media and publication review, the State Department stands alone in clinging to a 19th century model emphasizing lack of transparency and message control. That State seeks this modus in a largely unclassified world and while other agencies move toward change makes even more ripe State’s policies for a judicial challenge.
Introspection at the CIA
The CIA, for example, has begun a voluntary internal investigation into whether a process designed to screen books by former employees for classified information is wrongly and unconstitutionally being used to censor agency critics. The investigation is aimed at determining whether some redactions have been politically motivated. The target of the probe is the agency’s Publications Review Board, which is supposed to focus on whether publication of material would threaten national security interests. CIA critics said the disparities in the review process are particularly apparent in books that deal with controversial subjects, including waterboarding and other forms of “authorized” torture. (The Washington Post story on the CIA’s internal reform was of course not included in the State Department’s own internal press summary of the same day’s “Federal News.”)
Embracing Social Media in the Army
The State Department’s regulations also trail behind other government agencies, particularly the military. Military regulations concerning blogging and social media are not onerous and do not involve pre-clearance requirements. The Army encourages blogging in both official and private capacities, and has published glossy brochure-ware highlighting best practices for each. Though the Army heavily regulated military blogging briefly in 2008, it quickly reversed course. Military Law statutes, regulations, and cases available do not contain any references to pre-clearance requirements.
In fact, the Army social media guidelines are all online, in a colorful, user-friendly slideshow. They begin with the stated premise that “It is important to be as transparent as possible. As communicators, we need to be the first with the truth, whether it’s good or bad.” The emphasis in the Army guidelines is on good judgement– don’t post things online that could endanger soldiers’ lives– with not a word mentioned about the need to pre-clear (indeed, the Army emphasizes the value of social media is in its immediacy) or the requirement to say only “nice things.” Indeed, the introduction to the social media guidelines emphasizes displaying the good with the bad, with “truth” as the goal. The Army guidelines provide lots of examples and include easy-to-understand (“soldier-proof”) checklists of Do’s and Don’t's.
State Stands Alone
And then, standing alone, is the State Department.
State has its own regulations (not “guidelines”) on social media. No slick slide shows at State. The social media regs start with 15 pages of text, and begin by citing 27 Executive Orders, OMB decisions and Federal laws the user is responsible for following, including 18 U.S.C. 713 and 1017, Use of Department and Government Seals (rather than prohibiting the use of Seals and logos, as State does, the Army includes links to web-ready artwork so social media users get the images right) and whatever the Anti-Lobbying Act of 1913, is.
The secret sauce hidden in State’s hefty social media regulations is 3 FAM 4170, Official Clearance of Speaking, Writing, and Teaching. That reg is State’s requirement that all social media, even when posted as a private citizen, be pre-cleared, and that the State Department is allowed up to 30 working days to act.
That means the State Department demands of all of its thousands of employees that they seek pre-clearance for every blog post, update and Tweet, every day, 24/7. An exaggeration on my part? Sorry, no– have a look at the compliance letter I was forced to sign as a condition of employment, which specifically mentions these things even when done by an employee in his or her private capacity.
Obviously State cannot pre-clear what must add up to millions of social media utterances each week, and so it does not. In many instances when I have sought pre-clearance for a blog post on some timely matter, State simply sat on a response until, weeks later, the blog post was so irrelevant that it was not usable anymore. The law anticipated this type of government-foot-dragging-as-shadow-censorship, and in a seminal case on the free speech rights of Federal workers, stated:
But even then insistence on advance approval would raise a further question, as before-the-fact condemnation of speech raises special concerns such as undue delay-the review itself plus time needed for a speaker to secure judicial relief-and stifling of expression that in hindsight would have been viewed as harmless or not worth the enforcement effort.
Droppin’ Some Law On ‘Ya
It was actions such as this that lead the American Civil Liberties Union (ACLU) to assert that the State Department violated my First Amendment free speech rights and acted unconstitutionally. My attempts to clear items for publication were met with lengthy delays and periods of no contact. It was indeed such actions by the Department that often lead me to publish without preclearance so that the material was relevant to breaking news.
Want some law? Specifically on the issue of foot dragging on pre-clearance as a clever technique to kill a story, in Weaver the Court noted “if the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians.” In Crue v. Aiken, the 7th Circuit found a pre-clearance directive without a schedule for the review of proposed communications problematic because nothing prevented the reviewing official from delaying approval of communications until they were no longer relevant. (Crue v. Aiken, 370 F.3d 668, 679 (7th Cir. 2004)).
In Davis v. New Jersey Dept. of Law & Pub. Safety, the NJ Superior Court recognized that “before-the-fact review and approval requirements restrict employee speech—and raise special concerns such as undue delay and stifling of expression that in hindsight may be viewed as harmless or not worth the enforcement effort.” (Davis v. New Jersey Dept. of Law & Pub. Safety, Div. of State Police, 742 A.2d 619, 628-29 (Ch. Div. 1999)). Davis citing the Supreme Court in Freedman v. State of Maryland, notes that the danger present when a regulation “is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” (Freedman v. State of Md., 380 U.S. 51, 58, 85 S. Ct. 734, 738, 13 L. Ed. 2d 649 (1965)).
I know, I know, too heavy Doc. It took the ACLU five dense pages to spell out in legal detail all the ways the State Department social media regulations were unconstitutional and violated my First Amendment free speech rights.
So it is not as simple as some claim, broadly announcing that Federal employees give up their First Amendment rights, or that social media and the responsibilities of a classified job are incompatible. Federal employees do not give up their First Amendment rights, and there is plenty of law to substantiate that.
The bottom line is this: If the hyper-classified CIA recognizes the need for an internal review of its pre-clearance process, why doesn’t the State Department? If the military, with its obvious day-to-day operational need for secrecy and its immediate impact on soldiers’ lives, can co-exist without pre-clearance restraints on blogs, why can’t State?
Given the chance to make sane, voluntary changes to an obviously out-dated social media policy that stands outside the boundaries of other Federal agencies with a whole lot more secrets to protect, State appears ready to instead insist on having those changes dictated to it by a court. That is an expensive, and in this case, unnecessary way to change out-dated regulations.
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