Anti-Gag Statute - Background

Background

The anti-gag statute was first passed in response to Reagan administration nondisclosure agreements, primarily known as SF 189 and SF 312, which employees had to sign as a prerequisite to keep or obtain their security clearances. The forms were gag orders that would have effectively created a back door Official Secrets Act for 2.4 million clearance holders if implemented as planned. The agreements were to be enforced through loss of clearance and felony prosecution for releasing any “classifiable” information without advance approval.

What did “classifiable” mean? Steve Garfinkel, President Ronald Reagan’s chief of the Information Security Oversight Office (ISOO) that implemented SF 189, informed Congress that it meant anything that could or should have been classified, or “virtually anything.” In other words, without advance permission, whistleblowers could be prosecuted based on an after-the-fact call that almost any information they released was classified. “Classifiable” would have created a new hybrid secrecy, or “pseudo-classification” category that imposed sweeping prior restraint for admittedly less sensitive information.

After 1.7 million federal employees and contractors acquiesced by signing SF 189, Pentagon whistleblower Ernie Fitzgerald sparked a legislative and legal counterattack by refusing to do so. At one of numerous congressional hearings on the matter, Sen. Charles Grassley (R-IA) characterized the administration’s non-disclosure policy as an effort to “place a blanket of silence over all information generated by the government.”3 As a counter-attack, in 1988, Congress banned spending on SF 189. The Administration withdrew the form and substituted a new one, but the only change was to replace “classifiable” with “unmarked but classified.” Critics rejected the impact as disingenuous and meaningless, because whistleblowers still would have to seek advance approval from their supervisors to know for certain whether making a disclosure would be a crime.

After Congress enacted the spending ban, the Administration filed a constitutional challenge that went to the Supreme Court, arguing that the law infringed on the Commander in Chief’s powers. After the Supreme Court temporarily ducked the issue, Congress in 1989 rewrote the spending ban in its current language, which has not been challenged. The final anti-gag statute circumvents the Administration’s constitutional challenge by requiring the President to obey the relevant good government and national security laws he already signed. Although the law’s roots involve a national security controversy, its language sets the terms for lawful-spending to enforce any Executive branch restriction on free speech rights.