Snepp v. United States

The ruling recognized a situation where government compelling interest justified imposing a prior restraint on publications about the agency by employees and former employees. The United States successfully argued that uninhibited freedom 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 important information 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, the effectiveness of the CIA is governed by its ability to gather and distribute foreign intelligence in cooperation with numerous domestic and foreign information sources.

The authority of government to restrict speech prior to publication has been substantially limited by the Supreme Court since its landmark decision in Near v. Minnesota (1931). Freedom of expression from prior restraints was considered a fundamental right under the Constitution deriving from earlier English 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 step necessary 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 for Snepp 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 duty with 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 materials about the CIA.