Appellant
Frank W. Snepp III
Appellee
U.S. Central Intelligence Agency (CIA)
Appellant's Claim
That CIA requirements for agency prepublication review of writings about theagency by employees and former employees constituted unconstitutional prior restraint on freedom of speech in violation of the First Amendment.
Chief Lawyers for Appellant
Alan M. Dershowitz, Bruce J. Ennis, Joel M. Gora, Mark H. Lynch, Jack D. Novik, John H. F. Shattuck, John Cary Sims, Geoffrey J. Vitt
Chief Lawyers for Appellee
David J. Anderson, Barbara Allen Babcock, William B. Cummings, Brook Hedge, Thomas S. Martin, Elizabeth Gere Whitaker, Glenn V. Whitaker, George P. Williams
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart, Byron R. White (unsigned)
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
19 February 1980
Decision
Upheld lower court decisions that a compelling government interest justifiespublication safeguards in CIA employee contracts and waives their First Amendment rights to free speech.
Significance
The ruling recognized a situation where government compelling interest justified imposing a prior restraint on publications about the agency by employeesand former employees. The United States successfully argued that uninhibitedfreedom to publish materials on CIA activities, even when classified information was not involved, still jeopardized international trust relationships with foreign nations. Critics feared the increasing use of such "contracts of silence" in government and private business waiving freedom of speech rights violated the First Amendment rights of the public to know potentially importantinformation of public interest.
The CIA was established with the inception of the Cold War immediately following World War II in 1947. Created to protect national security in international affairs, the agency gathers intelligence for the U.S. government in an atmosphere of considerable secrecy and little media exposure. The CIA, whose director is a member of the President's cabinet, reports directly to the National Security Council. The agency, headquartered in McLean, Virginia, has "offices" in 130 foreign countries. Aspects of the CIA became more commonly known since the mid-1970s when a series of political controversies began. Still, theeffectiveness of the CIA is governed by its ability to gather and distributeforeign intelligence in cooperation with numerous domestic and foreign information sources.
The authority of government to restrict speech prior to publication has beensubstantially limited by the Supreme Court since its landmark decision in Near v. Minnesota (1931). Freedom of expression from prior restraints wasconsidered a fundamental right under the Constitution deriving from earlierEnglish common law. The Court in Near did leave open that prior restraint might be justified for national security reasons in times of war.
On 16 September 1968 a young man named Frank W. Snepp III took the final stepnecessary to begin working for the Central Intelligence Agency. The job application process with the CIA is a long one, involving extensive background checks for issuing a security clearance and other procedures. That process forSnepp culminated in signing a secrecy agreement which obligated Snepp not to"publish or participate in the publication of" any material relating to the CIA's activities during Snepp's term of employment without "specific prior approval by the Agency."
Snepp worked for the CIA for more than seven years, serving two tours of dutywith the CIA station in South Vietnam during the height of the Vietnam War.Snepp became disillusioned with the CIA's conduct in Vietnam, particularly with its role in the final stages of American withdrawal from Saigon in 1973. Snepp resigned from the CIA effective 23 January 1976 signing a termination secrecy agreement reiterating his obligation to obtain the "express written consent of the Director of Central Intelligence" before publishing any materialsabout the CIA.
Snepp Writes Decent Interval
Despite the documents he had signed, Snepp went to the publishing company Random House with a book manuscript titled Decent Interval. The book described the American withdrawal from Vietnam and Saigon and offered unflattering details about the CIA's involvement. The book detailed CIA dishonesty and corruption during the U.S. pullout of Vietnam. Snepp received a $60,000 advance from Random House, and a contract calling for potentially lucrative royalties after publication. Though based on his experience in the CIA, Snepp neversubmitted the manuscript for agency approval.
Random House published the book in November of 1977. On 15 February 1978 thegovernment filed suit against Snepp in the U.S. District Court for the Eastern District of Virginia. Because the book did not contain any information officially designated as classified, secret or top secret, the government took aconservative approach. Instead of criminal prosecution or seeking an injunction against publication of the book, the government asked the court for all ofSnepp's profits as compensation for breach of contract. Snepp stood to loseeverything under his contract with Random House.
The district court ruled in the government's favor on 7 July 1978, and the U.S. Court of Appeals for the Fourth Circuit largely affirmed the district court's actions on 20 March 1979 except for not allowing the government's right to the profits. Snepp appealed to the Supreme Court.
Both sides fielded extensive legal teams as the American Civil Liberties Union and the Authors League of America came to Snepp's assistance. CIA DirectorAdmiral Stansfield Turner had been a key witness for the government before the district court testifying that Snepp's book had significantly damaged CIA operations. Turner claimed a "number of sources" had discontinued cooperationand others expressed concerns, including complaints from foreign intelligenceservices. In addition, the book most likely discouraged new potential sources from coming forward. Snepp argued the secrecy agreements violated his rightunder the Constitution's First Amendment to freely express himself, a rightwhich cannot be contracted away. Snepp's lawyers were not allowed to cross-examine Turner concerning the harms to the agency he identified.
The Court, in an extraordinary move by not hearing oral arguments or accepting briefs on the issues, ruled on the case. A per curiam opinion was issued, meaning the author of the Court's decision was not identified. In rejecting Snepp's argument, the Court held the government could use employment agreements to bind its employees to vows of secrecy. The majority wrote, "The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentialityso essential to the effective operation of our foreign intelligence service.The agreement that Snepp signed is a reasonable means for protecting this vital interest." The Court reinstated the government's rights to the profits andrequired Snepp to obtain permission from the CIA in the future before speaking or writing about the agency for the rest of his life. The decision resulted in a substantial fine of $140,000 for Snepp. Ironically, Snepp must obtainpermission from an organization he would seek to criticize.
Justice John Paul Stevens, joined by Justice William Brennan and Justice Thurgood Marshall, wrote in dissent. Stevens asserted no precedents existed for the government to seize the profits from Snepp's book when it revealed no confidential information. Stevens also questioned the conclusiveness of Turner's"truncated testimony" as to the actual harm Snepp's book posed. In addition,Stevens wrote that he saw no basis for the Court to dispense with the case sorapidly, particularly when the "prior restraint on a citizen's right to criticize his government" was at issue. Such a restraint should require the "censor" to more substantially justify its interest at stake.
Impact
Despite the Court's historic concern for First Amendment rights, the Snepp decision reaffirmed that the government is entitled to enforce contractswith its employees that prohibit publishing sensitive material without priorconsent. However, the decision went beyond a relatively simple question of contract law. The ruling recognized national security concerns in a peace timeera as sufficient compelling interest of government to impose a prior restraint on free speech. Such a ruling was contrary to previous Court decisions. Government reliance on national security concerns did not prevail in New York Times Company v. United States (1971) in trying to block publication of the Pentagon Papers. Also, in 1979 the government, though successfully gaining a temporary injunction, ultimately failed to successfully block publication of hydrogen bomb production information in United States v. The Progressive, Inc. (1979). Prior restraints were more commonly used to avoid inappropriate pretrial publicity in highly publicized criminal cases.
Critics of the ruling argued that only criminal penalties for after-the-factpublication was constitutional, though admittedly not very effective since the unwanted revelations would have already occurred. They also argued the prepublication constraints inevitably keep more information secret than necessary. The CIA was, through its broad oversight, suppressing criticism that did not involve confidential information by those most knowledgeable of the issue.Critics doubted the CIA actually had proven a compelling interest since the agency was not actually seeking to suppress confidential information, but merely to present the appearance of suppressing such information.
The Snepp decision in combination with two other decisions, Haig v.Agee (1981) and United States v. The Progressive, Inc. (1979), signaled to some the potential beginning of a new sedition era in which criticism of U.S. activities would not be protected by the First Amendment. The riseof enforcing seditious libel under the cloak of national security to many corresponded with an increase in political repression. In Agee, the Court actually questioned whether the CIA was truly only trying to suppress confidential information, or was actually unconstitutionally imposing content-based restrictions on speech through prior restraints. However, the end of the Cold War era appeared to diffuse the issue of apparent political suppression atleast for a while.
A broader issue involved the growing use of "contracts of silence" which thegovernment, as in the case of Snepp, and private companies were increasingly using to keep potentially important information from the public. The tension between freedom of contract and freedom of speech, particular the public's right to know drew increasing concern. Some contracts of silence, particularly involving matters of commerce, clearly have importance in protecting trade secrets, sensitive financial and personnel information, and even protecting personal privacy. However, out of court settlements involving confidentiality conditions could potentially withhold defective product information fromthe public. Physicians were discovered signing "gag" provisions with healthcare management organizations to withhold information from patients concerning financial incentives under which they practiced. Some critics believed courts should more carefully consider public interest in access to information under the First Amendment when hearing cases involving these contracts of silence. Contract law traditionally allowed courts to deny enforcement of contracts when they violated public policy. Some argued this authority should be extended to adverse effects on free speech when significant public interest is identified.
A fundamental question raised by Snepp continued to plague the courts.What extent of a constitutional right does the public have to know about government operations? The public right to know has been assumed to be an essential part of free speech necessary for a democracy to maintain an informed electorate. But how much access to information is necessary when the public is not actually involved in day-to-day decision-making of government affairs is yet to be resolved.
Related Cases
Frank W. Snepp III
Appellee
U.S. Central Intelligence Agency (CIA)
Appellant's Claim
That CIA requirements for agency prepublication review of writings about theagency by employees and former employees constituted unconstitutional prior restraint on freedom of speech in violation of the First Amendment.
Chief Lawyers for Appellant
Alan M. Dershowitz, Bruce J. Ennis, Joel M. Gora, Mark H. Lynch, Jack D. Novik, John H. F. Shattuck, John Cary Sims, Geoffrey J. Vitt
Chief Lawyers for Appellee
David J. Anderson, Barbara Allen Babcock, William B. Cummings, Brook Hedge, Thomas S. Martin, Elizabeth Gere Whitaker, Glenn V. Whitaker, George P. Williams
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart, Byron R. White (unsigned)
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
19 February 1980
Decision
Upheld lower court decisions that a compelling government interest justifiespublication safeguards in CIA employee contracts and waives their First Amendment rights to free speech.
Significance
The ruling recognized a situation where government compelling interest justified imposing a prior restraint on publications about the agency by employeesand former employees. The United States successfully argued that uninhibitedfreedom to publish materials on CIA activities, even when classified information was not involved, still jeopardized international trust relationships with foreign nations. Critics feared the increasing use of such "contracts of silence" in government and private business waiving freedom of speech rights violated the First Amendment rights of the public to know potentially importantinformation of public interest.
The CIA was established with the inception of the Cold War immediately following World War II in 1947. Created to protect national security in international affairs, the agency gathers intelligence for the U.S. government in an atmosphere of considerable secrecy and little media exposure. The CIA, whose director is a member of the President's cabinet, reports directly to the National Security Council. The agency, headquartered in McLean, Virginia, has "offices" in 130 foreign countries. Aspects of the CIA became more commonly known since the mid-1970s when a series of political controversies began. Still, theeffectiveness of the CIA is governed by its ability to gather and distributeforeign intelligence in cooperation with numerous domestic and foreign information sources.
The authority of government to restrict speech prior to publication has beensubstantially limited by the Supreme Court since its landmark decision in Near v. Minnesota (1931). Freedom of expression from prior restraints wasconsidered a fundamental right under the Constitution deriving from earlierEnglish common law. The Court in Near did leave open that prior restraint might be justified for national security reasons in times of war.
On 16 September 1968 a young man named Frank W. Snepp III took the final stepnecessary to begin working for the Central Intelligence Agency. The job application process with the CIA is a long one, involving extensive background checks for issuing a security clearance and other procedures. That process forSnepp culminated in signing a secrecy agreement which obligated Snepp not to"publish or participate in the publication of" any material relating to the CIA's activities during Snepp's term of employment without "specific prior approval by the Agency."
Snepp worked for the CIA for more than seven years, serving two tours of dutywith the CIA station in South Vietnam during the height of the Vietnam War.Snepp became disillusioned with the CIA's conduct in Vietnam, particularly with its role in the final stages of American withdrawal from Saigon in 1973. Snepp resigned from the CIA effective 23 January 1976 signing a termination secrecy agreement reiterating his obligation to obtain the "express written consent of the Director of Central Intelligence" before publishing any materialsabout the CIA.
Snepp Writes Decent Interval
Despite the documents he had signed, Snepp went to the publishing company Random House with a book manuscript titled Decent Interval. The book described the American withdrawal from Vietnam and Saigon and offered unflattering details about the CIA's involvement. The book detailed CIA dishonesty and corruption during the U.S. pullout of Vietnam. Snepp received a $60,000 advance from Random House, and a contract calling for potentially lucrative royalties after publication. Though based on his experience in the CIA, Snepp neversubmitted the manuscript for agency approval.
Random House published the book in November of 1977. On 15 February 1978 thegovernment filed suit against Snepp in the U.S. District Court for the Eastern District of Virginia. Because the book did not contain any information officially designated as classified, secret or top secret, the government took aconservative approach. Instead of criminal prosecution or seeking an injunction against publication of the book, the government asked the court for all ofSnepp's profits as compensation for breach of contract. Snepp stood to loseeverything under his contract with Random House.
The district court ruled in the government's favor on 7 July 1978, and the U.S. Court of Appeals for the Fourth Circuit largely affirmed the district court's actions on 20 March 1979 except for not allowing the government's right to the profits. Snepp appealed to the Supreme Court.
Both sides fielded extensive legal teams as the American Civil Liberties Union and the Authors League of America came to Snepp's assistance. CIA DirectorAdmiral Stansfield Turner had been a key witness for the government before the district court testifying that Snepp's book had significantly damaged CIA operations. Turner claimed a "number of sources" had discontinued cooperationand others expressed concerns, including complaints from foreign intelligenceservices. In addition, the book most likely discouraged new potential sources from coming forward. Snepp argued the secrecy agreements violated his rightunder the Constitution's First Amendment to freely express himself, a rightwhich cannot be contracted away. Snepp's lawyers were not allowed to cross-examine Turner concerning the harms to the agency he identified.
The Court, in an extraordinary move by not hearing oral arguments or accepting briefs on the issues, ruled on the case. A per curiam opinion was issued, meaning the author of the Court's decision was not identified. In rejecting Snepp's argument, the Court held the government could use employment agreements to bind its employees to vows of secrecy. The majority wrote, "The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentialityso essential to the effective operation of our foreign intelligence service.The agreement that Snepp signed is a reasonable means for protecting this vital interest." The Court reinstated the government's rights to the profits andrequired Snepp to obtain permission from the CIA in the future before speaking or writing about the agency for the rest of his life. The decision resulted in a substantial fine of $140,000 for Snepp. Ironically, Snepp must obtainpermission from an organization he would seek to criticize.
Justice John Paul Stevens, joined by Justice William Brennan and Justice Thurgood Marshall, wrote in dissent. Stevens asserted no precedents existed for the government to seize the profits from Snepp's book when it revealed no confidential information. Stevens also questioned the conclusiveness of Turner's"truncated testimony" as to the actual harm Snepp's book posed. In addition,Stevens wrote that he saw no basis for the Court to dispense with the case sorapidly, particularly when the "prior restraint on a citizen's right to criticize his government" was at issue. Such a restraint should require the "censor" to more substantially justify its interest at stake.
Impact
Despite the Court's historic concern for First Amendment rights, the Snepp decision reaffirmed that the government is entitled to enforce contractswith its employees that prohibit publishing sensitive material without priorconsent. However, the decision went beyond a relatively simple question of contract law. The ruling recognized national security concerns in a peace timeera as sufficient compelling interest of government to impose a prior restraint on free speech. Such a ruling was contrary to previous Court decisions. Government reliance on national security concerns did not prevail in New York Times Company v. United States (1971) in trying to block publication of the Pentagon Papers. Also, in 1979 the government, though successfully gaining a temporary injunction, ultimately failed to successfully block publication of hydrogen bomb production information in United States v. The Progressive, Inc. (1979). Prior restraints were more commonly used to avoid inappropriate pretrial publicity in highly publicized criminal cases.
Critics of the ruling argued that only criminal penalties for after-the-factpublication was constitutional, though admittedly not very effective since the unwanted revelations would have already occurred. They also argued the prepublication constraints inevitably keep more information secret than necessary. The CIA was, through its broad oversight, suppressing criticism that did not involve confidential information by those most knowledgeable of the issue.Critics doubted the CIA actually had proven a compelling interest since the agency was not actually seeking to suppress confidential information, but merely to present the appearance of suppressing such information.
The Snepp decision in combination with two other decisions, Haig v.Agee (1981) and United States v. The Progressive, Inc. (1979), signaled to some the potential beginning of a new sedition era in which criticism of U.S. activities would not be protected by the First Amendment. The riseof enforcing seditious libel under the cloak of national security to many corresponded with an increase in political repression. In Agee, the Court actually questioned whether the CIA was truly only trying to suppress confidential information, or was actually unconstitutionally imposing content-based restrictions on speech through prior restraints. However, the end of the Cold War era appeared to diffuse the issue of apparent political suppression atleast for a while.
A broader issue involved the growing use of "contracts of silence" which thegovernment, as in the case of Snepp, and private companies were increasingly using to keep potentially important information from the public. The tension between freedom of contract and freedom of speech, particular the public's right to know drew increasing concern. Some contracts of silence, particularly involving matters of commerce, clearly have importance in protecting trade secrets, sensitive financial and personnel information, and even protecting personal privacy. However, out of court settlements involving confidentiality conditions could potentially withhold defective product information fromthe public. Physicians were discovered signing "gag" provisions with healthcare management organizations to withhold information from patients concerning financial incentives under which they practiced. Some critics believed courts should more carefully consider public interest in access to information under the First Amendment when hearing cases involving these contracts of silence. Contract law traditionally allowed courts to deny enforcement of contracts when they violated public policy. Some argued this authority should be extended to adverse effects on free speech when significant public interest is identified.
A fundamental question raised by Snepp continued to plague the courts.What extent of a constitutional right does the public have to know about government operations? The public right to know has been assumed to be an essential part of free speech necessary for a democracy to maintain an informed electorate. But how much access to information is necessary when the public is not actually involved in day-to-day decision-making of government affairs is yet to be resolved.
Related Cases
- Near v. Minnesota, 283 U.S. 697 (1931).
- New York Times Company v. United States, 403 U.S. 713 (1971).
- United States v. The Progressive, 467 F.Supp. 990 (W.D. Wis. 1979).
- Haig v. Agee, 453 U.S. 280 (1981).
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