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

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SNEPP v. UNITED STATES 444 U.S. 507 (1980)

A former Central Intelligence Agency (CIA) employee, Frank W. Snepp III, published a book containing unclassified information about CIA activities in South Vietnam. Snepp did not submit the book to the CIA for prepublication review, in breach of his express employment agreement not to publish any information without the agency's prior approval or to disclose any classified information. In a decision remarkable for its procedural setting and for its failure to meet head-on the first amendment issues implicated by the prior restraint, the Supreme Court, per curiam, sanctioned the imposition of a constructive trust on all proceeds from the book's sales.

The Court recognized, as the government conceded, that Snepp had a First Amendment right to publish unclassified information. The Court found, however, that by virtue of his employment as a CIA agent, Snepp had entered a fiduciary relationship with the agency. Snepp breached the special trust reposed in him by failing to submit all material, whether classified or not, for prepublication review. That breach posed irreparable harm to the CIA's relationships with foreign governments and its ability to perform its statutory duties. The constructive trust remedy was thereby warranted.

Justice john paul stevens, joined by Justices william j. brennan and thurgood marshall, dissented, arguing that the remedy was unsupported by statute, the contract, or case law. He urged that the contract be treated as an ordinary employment covenant. On this theory, its enforcement would be governed by a rule of reason that would require a balancing of interests, including Snepp's First Amendment rights, and might justify an equity court's refusal to enforce the prepublication review covenant. Further, the alleged harm suffered by the government did not warrant the Court's "draconian" remedy, especially because the government had never shown that other remedies were inadequate. Stevens noted that the Court seemed unaware that it had fashioned a drastic new remedy to enforce a species of prior restraint on a citizen's right to criticize the government.

Kim Mc l ane Wardlaw

(see also: Prior Restraint and Censorship.)