Caseflicks

Supreme Court of the United States • 1980

Snepp v. United States

444 U.S. 507 | 100 S. Ct. 763 | 62 L. Ed. 2d 704 | 1980 U.S. LEXIS 75

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case permits the Government to enforce a CIA officer's prepublication-review promise through disgorgement of publication profits, even when the Government does not prove that the published work revealed classified information.

Background

Frank Snepp, a former CIA agent, published Decent Interval, a book based on his experiences involving CIA activities in South Vietnam. When he joined the CIA in 1968, Snepp signed an agreement promising not to publish any material relating to the Agency or intelligence activities without prior Agency approval. He separately promised not to disclose classified information. When he left the Agency in 1976, he reaffirmed comparable secrecy obligations.

Snepp did not submit his manuscript for prepublication review. The Government sued for a declaration that he had breached his agreement, an injunction requiring review of future writings, and a constructive trust over profits from the book. The District Court found that Snepp had deliberately and surreptitiously breached a position of trust, had misled CIA officials about his intended compliance, and had caused irreparable harm to the Government. It enjoined future violations and imposed a constructive trust on his book profits.

The Fourth Circuit affirmed the injunction but rejected the constructive trust. Because the Government conceded for purposes of the suit that the book contained no classified intelligence, the court concluded that Snepp's fiduciary duty extended only to preserving classified information. It allowed only nominal damages, with possible punitive damages upon proof of tortious conduct. The Supreme Court granted both Snepp's petition and the Government's conditional cross-petition, reversed the denial of a constructive trust, and ordered reinstatement of the District Court's full judgment.

Issues

Issue #1

Whether the CIA could enforce Snepp's agreement requiring prepublication review of writings concerning the Agency, notwithstanding his First Amendment interests.

Holding

Yes. Snepp voluntarily entered a valid and reasonable prepublication-review agreement, and its enforcement did not violate the First Amendment.

Reasoning

Snepp accepted the CIA position voluntarily and expressly agreed to submit proposed publications about the Agency and intelligence activities for prior approval. He did not claim that he signed under duress, and he reaffirmed his obligation when he left the Agency.

The Court treated the agreement as an appropriate means of carrying out the CIA Director's statutory duty to protect intelligence sources and methods from unauthorized disclosure. The Government has a compelling interest not only in protecting secrets, but also in maintaining the appearance of confidentiality necessary for an effective foreign-intelligence service.

The agreement did not give the CIA unlimited authority to suppress protected speech. It required a clearance process, and if the Agency objected to material as sensitive, it would bear the burden of seeking an injunction if the author disagreed. In the Court's view, that procedure was a reasonable restriction for an employee entrusted with sensitive intelligence information.

Issue #2

Whether Snepp breached a fiduciary obligation by publishing without prepublication review even though the Government did not contend that his book disclosed classified information.

Holding

Yes. His failure to submit the book for review breached a fiduciary obligation independent of proof that the published text contained classified information.

Reasoning

Snepp's CIA employment involved an unusually high degree of trust. His agreement expressly described his position as one of trust, and he stipulated that he had received frequent access to classified information, including intelligence sources and methods. The prepublication obligation was part of the trust relationship, not merely an ordinary contractual formality.

The Court distinguished the right to publish unclassified information from the duty to permit the CIA to determine, before publication, whether proposed material could expose classified information or confidential sources. A former agent cannot unilaterally decide what information may safely be disclosed when the Agency has a broader understanding of intelligence risks.

Both lower courts found that publication of unreviewed material by a former intelligence agent can harm national security even if the material is not itself classified. Testimony from the CIA Director showed that unauthorized publications undermine foreign sources' and allied intelligence services' confidence that information shared with the United States will remain secure.

Issue #3

Whether a constructive trust on Snepp's book profits was an appropriate remedy for his breach of the prepublication-review obligation.

Holding

Yes. Snepp's profits attributable to the unauthorized publication were properly subject to a constructive trust for the Government's benefit.

Reasoning

The Court characterized Snepp's conduct as a breach of fiduciary trust and held that disgorgement through a constructive trust is the natural and customary equitable consequence of such a breach. The remedy requires a faithless fiduciary to surrender the benefits obtained from violating the duty of trust.

Actual damages from an unauthorized intelligence-related publication are ordinarily impossible to quantify. Nominal damages would not deter similar violations, while punitive damages were speculative, could be disproportionate to Snepp's gain, and might require the Government to disclose sensitive information in litigation in order to prove its case.

A constructive trust was both effective and limited. If an agent obtains prepublication clearance, he may publish without this liability; if he publishes in breach of the agreement, he must disgorge only the funds attributable to that breach. The Court therefore reinstated the District Court's constructive-trust remedy rather than leaving the Government to uncertain punitive damages.

Dissents

Justice Stevens

Reasoning

Justice Stevens, joined by Justices Brennan and Marshall, agreed that Snepp breached his promise to submit the manuscript for review but rejected the constructive trust. In his view, the purpose of the agreement was to prevent disclosure of classified, nonpublic information, and the Government had conceded that Snepp's book contained none. Therefore, the confidentiality interest the agreement was meant to protect had not been compromised.

The dissent maintained that neither statute, the parties' agreements, nor common-law trust principles authorized the remedy. A constructive trust traditionally fits where an employee profits from misuse of confidential information; it does not fit where the employee's profits were produced by unclassified material and not by the failure to submit that material for review. Had Snepp submitted the book, the Agency would have had to approve publication in the same form, so the profits were not unjust gains caused by the breach.

Justice Stevens also warned against treating every contractual device supporting confidentiality as a fiduciary duty enforceable by sweeping equitable relief. He analogized the prepublication covenant to other restrictive employment covenants, which ordinarily require careful scrutiny of the employer's legitimate interest, the employee's speech and work interests, and the public interest in the flow of unclassified information.

The dissent disputed the majority's reliance on generalized injury to the CIA's reputation for secrecy. In Justice Stevens's view, the evidence did not establish that Snepp's unclassified book itself caused foreign sources or agencies to cease cooperating. If deterrence or punishment for deliberate noncompliance was warranted, punitive damages—not a constructive trust premised on unjust enrichment—would be the more conceptually appropriate remedy.

Finally, Justice Stevens objected to the Court's summary procedural disposition. The Government had filed its cross-petition only conditionally and had said that the Fourth Circuit's punitive-damages remedy appeared sufficient. The dissent believed the Court should not use that conditional petition to create a novel, severe remedy without full briefing and argument, especially because prepublication review is a form of prior restraint on speech critical of the Government.