Snepp v. United States, 444 U.S. 507 (1980)

Snepp v. United States establishes that the government by prior agreement can require prepublication review to prevent the disclosure of unclassified but confidential information when publication of that information would be detrimental to vital national interests by compromising Classified Information (including intelligence sources or methods). The case thus stands as one of several narrow exceptions to the general prohibition against prior restraints. It operates essentially as a limited waiver by a former government employee of his First Amendment rights. Moreover, unlike other, nonnational security-related prior restraints, which place the burden on the government to obtain a judicial order enjoining publication, this exception has been interpreted by the lower courts to place the burden on the publisher to obtain a judicial determination that governmental clearance had been improperly withheld. See Snepp v. US, 897 F.2d 138 (4th Cir. 1990).

Frank Snepp, based on his experiences as a clandestine CIA operative in South Vietnam, published Decent Interval, after leaving the CIA but without submitting it to prepublication review. He had, as a condition of his initial employment and in a termination secrecy agreement executed in 1976 before his departure from the CIA, expressly promised not to divulge Classified Information and not to publish any information without prepublication clearance. The government—conceding, for purposes of Snepp’s appeal from a lower court decision finding him in breach of contract, that Snepp had not revealed Classified Information and had a First Amendment right to publish—argued that there was a Compelling State Interest in preserving the appearance of confidentiality. Relying on lower court testimony by CIA Director Admiral Stansfield Turner that the publication of Snepp’s book had impeded intelligence cooperation for the United States, the Supreme Court judged that reliable and enforceable prepublication review procedures were necessary to provide the advance assurance that foreign intelligence sources needed to cooperate with the United States. The Court judged that prepublication review, even of material that was unclassified at the time of the review, was necessary to allow the CIA to determine whether publication would lead to the disclosure of foreign intelligence sources and methods.

The surprisingly mundane issue before the Court, however, was the remedy for Snepp’s breach of contract. The lower courts had determined that, in principle, in addition to ordinary contract damages for the value of Snepp’s unperformed promise to comply with prepublication review procedures, punitive damages might be available. The lower courts described Snepp’s breach as a violation of a fiduciary relationship—a special relationship of trust and confidence— with the CIA. The Supreme Court feared, however, that under the facts of the case it might be impossible to determine any real pecuniary loss for the value of the bargain, which as a matter of ordinary contract law would then bar the CIA from obtaining punitive damages as well. Because this would leave the CIA uncompensated and Snepp undeterred, the Supreme Court then relied on its extraordinary powers as a court of equity to fashion a remedy based on the common law of restitution. It found that Snepp’s breach would be remedied, and future violations would be effectively deterred, by ordering Snepp to transfer to the government all his gains from the publication of his book, Decent Interval.

ANTONIO F. PEREZ

References and Further Reading

• McCamus, John D., Disgorgement for Breach of Contract: A Comparative Perspective, Loyola of Los Angeles Law Review 943 (Winter 2003): 36 (discussing the Snepp case from the perspective or ordinary contract law).
• Medow, Jonathan C., The First Amendment and the Secrecy State: Snepp v. United States, U. Pennsylvania Law Review 130 (1982): 775, 785, 802 (discussing the Snepp case from the free speech perspective).
• White, Laura A., The Need for Governmental Secrecy: Why the U.S. Government Must Be Able to Withhold Information in the Interest of National Security, Virginia Journal of International Law 1071 (Summer 2003): 43 (discussing the Snepp case from the national security perspective).