An employee must obtain specific advance approval before engaging in speaking, writing, or teaching on subject matter of official concern; ... Approval will not be granted if the speech, written product, or course contains classified material or material of official concern which is inaccurate, incompatible with current U.S. foreign policy, or can reasonably be expected to affect U.S. foreign policy adversely.
[T]he extra power the government has in this area comes from the nature of the government's mission as an employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively as possible. When someone who is paid a salary so that she will contribute to an agency's effective operation begins to *1450 **441 do or say things that detract from the agency's effective operation, the government employer must have some power to restrain her.... The key to First Amendment analysis of government employment decisions, then, is this: the government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.
The regulations serve a significant governmental interest unrelated to the suppression of speech. Substantial foreign policy and national security interests support the prepublication regulations. One of the paramount purposes of the regulation is to prevent the unknowing disclosure or dissemination of classified information which could harm the vital security interests of the United States.... It is also important that the Voice of America, as is succinctly expressed in its charter, is apolitical. A fundamental feature of the important foreign policy objectives it serves for the United States is to report to the people of other nations in a manner that is truthful, objective, reliable, and nonpolitical. The insertion of VOA or its employees into the press or public debate on a freelance basis on sensitive matters of security or foreign relations could threaten the basic purposes of VOA. Such activity could jeopardize security, disrupt foreign relations, and impair the important mission of the Agency.
The presumption of prior restraint is heavier—and the degree of protection broader—than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.
But if publication without the change could be punished after the fact under Pickering, then presumably the employee is not made worse off by having advance notice of the government's view. If, on the other hand, publication of the unaltered material cannot constitutionally be punished, then the employee has nothing to fear by going ahead.
That this Court will ultimately vindicate an employee if his speech is constitutionally protected is of little consequence—for the value of a sword of Damocles is that it hangs—not that it drops. For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.
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