U.S. v. Snepp Appeal: 1980

Appellant: Frank W. Snepp Ill
Appellee: The United States
Appellant Claims: That a district court erred in ruling that Snepp violated the terms of his Central Intelligence Agency employment agreement by having his book Decent Interval published without the agency's prior consent
Chief Lawyers for Appellee: David J. Anderson, Barbara Allen Babcock, William B. Cummings, Brook Hedge, Thomas S. Martin, Elizabeth Gere Whitaker, Glenn V. Whitaker, and George P. Williams
Chief Lawyers for Appellant: Alan M. Dershowitz, Bruce J. Ennis, Joel M. Gora, Mark H. Lynch, Jack D. Novik, John H.F. Shattuck, John Cary Sims, and Geoffrey J. Vitt
Justices: Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Potter Stewart, and Byron R. White
Place: Washington, D.C.
Date of Decision: February 19, 1980
Decision: That Snepp had unlawfully breached the terms of his employment agreement

SIGNIFICANCE: Despite the strong interest in protecting First Amendment rights, the government is entitled to enforce contracts with its employees that prohibit publishing sensitive material without prior consent.

On September 16, 1968, a young man named Frank W. Snepp III took the final step necessary to begin working for the Central Intelligence Agency. The job application process with the CIA is a long one, involving extensive background checks for issuing a security clearance and other procedures. That day for Snepp culminated in signing a secrecy agreement, which obligated Snepp not to "publish or participate in the publication of any material relating to the CIA's activities during Snepp's term of employment without "specific prior approval by the Agency."

Snepp worked for the CIA for more than seven years. He served two tours of duty with the CIA station in South Vietnam, June 2, 1969—June 21, 1971, and October 4, 1972—April 29, 1975. Snepp became disillusioned with the CIA's conduct in Vietnam, particularly with its role in the final stages of American withdrawal from Saigon. Snepp resigned from the CIA effective January 23, 1976, and was required to sign a termination secrecy agreement reiterating his obligation to obtain the "express written consent of the Director of Central Intelligence" before publishing anything about the CIA.

Snepp Sells Decent Interval

Despite the documents he had signed, Snepp went to the publishing company Random House with his manuscript for a book titled Decent Interval. The book described the American withdrawal from Vietnam and Saigon and gave unflattering details about the CIA's involvement. Snepp received a $60,000 advance from Random House, and his contract called for potentially lucrative royalties. The book was based on Snepp's experience in the CIA, and he never submitted it to the agency for approval.

Random House published the book in November 1977. On February 15, 1978, the government sued Snepp in the U.S. District Court for the Eastern District of Virginia, which covered Snepp's suburban Washington, D.C., residence. Because the book didn't contain any information that was officially designated as classified, secret or top secret, the government took a conservative approach. Instead of criminal prosecution or seeking an injunction against publication of the book, the government asked the court for all of Snepp's profits as compensation for breach of contract. Snepp stood to lose everything under his contract with Random House.

The District Court ruled in the government's favor on July 7, 1978, and the U.S. Court of Appeals for the Fourth Circuit largely affirmed the District Court's actions on March 20, 1979. Snepp appealed to the Supreme Court. Both sides had extensive legal teams, because the American Civil Liberties Union and the Authors League of America came to Snepp's assistance.

In an extremely rare procedure, the Supreme Court decided to consider the case, but the Court made its decision solely on the basis of the papers filed by both sides. There was no hearing. In upholding the district court's decision to make Snepp turn over all his proceeds from book sales to the government, the court relied heavily on the testimony of CIA Director Admiral Stansfield Turner before the district court that Snepp's book had hurt CIA operations:

Over the last six to nine months, we have had a number of sources discontinue work with us. We have had more sources tell us that they are very nervous about continuing work with us. We 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.

Snepp's defense was based on the argument that the secrecy agreements violated his right under the Constitution's First Amendment to express himself, a right which cannot be contracted away. In rejecting Snepp's argument, the court held on February 19, 1980, that the government could use employment agreements to bind its employees to vows of secrecy:

The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. The agreement that Snepp signed is a reasonable means for protecting this vital interest.

Therefore, despite the court's historic concern for First Amendment rights, it held in a 6-3 decision that the government is entitled to enforce contracts with its employees that prohibit publishing sensitive material without prior consent.

—Stephen G. Christianson

Suggestions for Further Reading

Alter, Jonathan. "Slaying the Message." Washington Monthly (September 1981): 43-50.

Mullin, Dennis, and Robert S. Dudney. "When CIA Spies Come in From the Cold." U.S. News and World Report (September 28, 1981): 41-44.

Nocera, Joseph. "Finally Proof That Frank Snepp Was Framed." Washington Monthly (November 1980): 11-19.

Snepp, Frank. Decent Interval. An Insider's Account of Saigaon's Indecent End Told by the CIA's Chief Strategy Analyst in Vietnam. New York: Vintage Books, 1978.

——. "The CIA's Double Standard." Newsweek (January 25, 1982): 10.