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Snepp v. U.S. 444 U.S. 507; 100 S. Ct. 763; 62 L. Ed.

2d 704; (1980) Brief by Tim Ahn


The Supreme Court of the United States affirmed with the lower courts decision that the petitioners agreement with the defendant was enforceable to secure the protection of the United States and that future profits from the petitioners book will benefit the respondent. Upon employment as an agent for the CIA in 1968, Frank Snepp, executed an agreement promising not to publish any information relating to the Agency, classified or non-classified, either during or after his term of employment, without the prior review and consent of the Agency. Nevertheless after his resignation, Snepp published a book titled Decent Interval, in which he revealed certain CIA activities in South Vietnam. In response, the United States government took action to enforce Snepps agreement in the U.S. District Court for the Eastern District of Virginia, as it sought a declaration that Snepp had intentionally and secretly breached his contract with the Agency. Furthermore, the government suggested an injunction requiring the agent to submit his future writings for prepublication review, and an order imposing a constructive trust for the governments benefit on all profits. Snepp objected, asserting that the agreement was unacceptable as his rights to the First Amendment would be violated. He also claimed that once the CIA censors any objectionable material in his book, there would be nothing left worth publishing. The District Court ruled that Snepp had willfully, deliberately and surreptitiously breached his position of trust with the CIA and the 1968 secrecy agreement, by publishing his book without prior review and consent of the intelligence agency. The court also determined Snepps book caused the United States irreparable harm and loss. Snepp rejected all claims and appealed. As the U.S. Court of Appeals for the Fourth Circuit agreed with the lower courts ruling, Snepp once again challenged the decision by taking the case to the Supreme Court. The court upheld the lower courts decision that the petitioners agreement was enforceable as the secrecy agreement was violated and that a constructive trust would be imposed over all future profits derived from petitioners work for the benefit of respondent. Snepp subsequently petitioned for a rehearing, but was denied. There was a similar case in 1972 where Victor Marchetti, a CIA operative submitted his work to the Agency before publishing his book. When the Agency deleted almost 20 percent of Marchettis manuscript, he argued that it violated his First Amendment rights, but the court ruled that pre-publication agreements are a justifiable form of prior restraint. What Marchetti and Snepp failed to realize was that as part of the executive branch, the CIA and its Director has been given power to protect the interest and national security of the country as stated below: The Director of the Central Intelligence Agency appropriately exercises his statutory mandate to protect the substantial government interest in protecting both the secrecy of information important to national security and in the appearance of confidentiality essential to the effective operation of the foreign intelligence service by imposing reasonable

restrictions on employee activities that in other contexts might be protected by the First Amendment. There are some cases where people argue that because Snepps manuscript does not contain any classified information it cannot cause any harm or loss to the country. However, this case proved that because the secrecy agreement was violated, it disabled, in some measure, the Agencys ability to carry out its statutory mandate. General Turner, Director of CIA at that time, was able to testify to the fact that CIA was impaired from carrying out its operations: Over the last six to nine months, we have had a number of sources discontinue work with usWe have had very strong complaints from a number of foreign intelligence services with whom we conduct liaison, who have questioned whether they should continue exchanging information with us, for fear it will not remain secret. I cannot estimate to you how many potential sources or liaison arrangements have never germinated because people were unwilling to enter into business with us. The Court voted 6 to 3 for the defendant without hearing any oral arguments by both parties. Although the court took into consideration the values of the First Amendment, it was decided that the case was based mainly on the violation of the pre-publication agreement Snepp had signed. Pre-publication is one of the forms of prior restraint that the Supreme Court has time and again determined to be justifiable. With these two similar cases ruling in favor of prior restraint in the case of pre-publication agreements, as well as taking into consideration the national security of the country, the court has presented a strong stance on this issue and clearly discourages others to make the same mistake.

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