Snepp v. United States

Despite the Court's historic concern for First Amendment rights, the Snepp decision reaffirmed that the government is entitled to enforce contracts with its employees that prohibit publishing sensitive material without prior consent. However, the decision went beyond a relatively simple question of contract law. The ruling recognized national security concerns in a peace time era 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-fact publication 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 rise of 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 at least for a while.

A broader issue involved the growing use of "contracts of silence" which the government, 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 from the public. Physicians were discovered signing "gag" provisions with health care 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.