1. law, govt and politics

GOVERNMENT SECRECY AGREEMENTS
AND THE FIRST AMENDMENT
INTRODUCTION
In the past several years, former members of the United States intelligence
community' have published an abundance of books and articles about their
experiences in government service. 2 Although writing about past government
service is common, 3 a potentially serious problem could arise if classified
information 4 were released by former government employees through their
publications. 5 As a result, the Federal Government has instituted various
precautionary measures to suppress the release of classified information
6
acquired by those employees during the term of their service. The government secrecy agreement, whereby employees contractually bind themselves
not to disclose classified information, is the primary device utilized by the
1. The organizations comprising the intelligence community are the Central Intelligence Agency
(CIA), the National Security Agency (NSA), the Defense Intelligence Agency (DIA), the Offices within
the Department of Defense that collect specialized foreign intelligence through reconnaissance programs,
the State Department's Bureau of Intelligence and Research, the intelligence elements of the military
services, the Federal Bureau of Investigation (FBI), the Department of Treasury, the Department of
Energy, and the Drug Enforcement Administration (DEA). Exec. Order No. 12,036, 43 Fed. Reg. 3691
(1978).
2. E.g.. P. AGEE & L. WOLF, DIRTY WORK: THE CIA IN WESTERN EUROPE (1978); M. COPELAND,
WITHOUT CLOAK OR DAGGER (1974); J. SMITH, PORTRAIT OF A COLD WARRIOR (1976); F. SNEPP,
DECENT INTERVAL (1977); Marchetti, CIA: The President's Loyal Tool, NATION, Apr. 3, 1972, at 430;
Snepp, The CIA vs. Me, NEWSWEEK, July 31, 1978, at 13.
3. Some prominent examples of authors who have written about their past government experiences
include Henry Stimson (Secretary of War), Dean Acheson, George Kennan, John Emmet Hughes, Arthur
Schlesinger, Jr., John Kenneth Galbraith, George Ball, John Ehrlichman, H.R. Haldeman, and Richard
Nixon. Brief for Appellant at 44, United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition for cert.
filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
"
that is owned by, produced for or by,
4. 'Classified information' means information or material ....
or under the control of the United States Government, and that has been determined pursuant to this
Order or prior Orders to require protection against unauthorized disclosure, and that is so designated."
Exec. Order No. 12,065, 43 Fed. Reg. 28,949, 28,961 (1978). Information may be classified according to
one of the following three designations:
1-102. "Top Secret" shall be applied only to information, the unauthorized disclosure of
which reasonably could be expected to cause exceptionally grave damage to the national
security. 1-103. "Secret" shall be applied only to information, the unauthorized disclosure of
which reasonably could be expected to cause serious damage to the national security. 1-104.
"Confidential" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause identifiable damage to the national security.
Id. at 28,950.
5. The release of classified information in certain situations could endanger the lives of intelligence
sources. The CIA, for example, attributed the 1975 assassination of its Athens station chief, Richard S.
Welch, to a magazine article which identified him as a CIA agent. N.Y. Times, Jan. 5, 1976, § A, at 3, col.
I. Although the article in question was not written by a former CIA employee, it nevertheless illustrates the
potential danger presented by the unauthorized release of classified information.
6. See notes 12, 72 & accompanying text infra.
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[Vol. 28:395
United States Government to achieve this end. Before an individual may be
employed in a position that affords access to sensitive material, he must sign a
secrecy contract pledging not to release any classified information. 7 Accordingly, tens of thousands of public employees in many government agencies
have been required to sign these agreements as a condition of their employ-
ment. 8
Although each agency drafts its own secrecy contract, most merely
obligate the employee not to disclose classified information. 9 Another type of
agreement adopted by a few agencies, however, grants the agency the right of
prepublication review of any information relating to the agency, irrespective
of whether such information is classified. 10 Prior to publication, the employee
must submit any material pertaining to the agency so that the agency can
screen it for potential disclosures of classified information. Unlike the
standard form agreement, this latter type of contract goes far beyond the mere
promise not to disclose classified information; thus, it may infringe upon the
employee's first amendment rights. The prepublication review provisions of
these contracts create a conflict between the government's sovereign right to
protect national security, and the public employee's constitutional right of
free speech.
This comment first examines the two major types of employment secrecy
agreements and the limited case law construing them."' It then analyzes the
constitutionality of prepublication review agreements under two distinct first
7. See notes 13-20 & accompanying text infra.
8. All of the organizations within the intelligence community use some form of secrecy agreement.
Security Agreements Upon Assignment or Employment (Aug. 21, 1978) (unpublished draft study by the
staff of Rep. Don Edwards, Chairman, Subcomm. on Civil and Constitutional Rights of the House Comm.
on the Judiciary [hereinafter cited as Edwards Study]; Burnham, Some Legislators See 2 Recent Trials As
Carter Crackdown on Release of Information, N.Y. Times, July 12, 1978, §A at 12, col. 1 (discussing the
Edwards Study). For a list of the agencies concerned, see note 1 supra. In addition, all staff members of the
Rockefeller Commission (Commission on CIA Activities Within the United States), the Senate Select
Committee to Study Intelligence Activities, and the House Select Committee on Intelligence were required
to sign security agreements. Warner, The MarchettiCase: New Case Law, STUDIES IN INTELLIGENCE 1, 11
(1976)(internal CIA publication).
Although the precise number of persons subject to these agreements is not publicly known, one source
has estimated that there are close to 200,000 employees that have access to government secrets. The New
Espionage American Style, NEWSWEEK, Nov. 22, 1971, at 29.
9. See notes 12-14 & accompanying text infra.
10. Currently, only the FBI, CIA and DIA secrecy agreements contain prepublication review
provisions. Edwards Study, supra note 8, at 6-8; see notes 21-34 & accompanying text infra.
11. The focus of this comment is on former, rather than current employees of the intelligence
community. This distinction is necessary because current employees are further restrained by conflict of
interest laws governing the use of inside information by such employees for their own gain. For example,
federal regulations provide that "an employee shall not ... engage in teaching, lecturing, or writing...
that depends on information obtained as a result of his Government employment, except when that
information has been made available to the general public or will be made available on request, or when the
" 5 C.F.R. § 735.203(c) (1978). This comment will not
agency head gives written authorization ....
consider the effect of such laws, if any, on the constitutionality of prepublication review provisions.
1979]
GOVERNMENT SECRECY AGREEMENTS
amendment standards: the reasonableness standard and the doctrine of prior
restraint. After exploring the government's interest in secrecy agreements
that incorporate prepublication review provisions and the countervailing first
amendment interest of the public employee, the comment weighs these
competing interests to determine whether prepublication review provisions
meet the weaker reasonableness standard. The comment then further scrutinizes these provisions under the higher first amendment standard-the
doctrine of prior restraint. Finally, this comment examines the presidential or
congressional authority, if any, for the use of prepublication review agreements by government agencies.
I.
GOVERNMENT SECRECY AGREEMENTS
A. THE STANDARD FORM
The majority of organizations comprising the intelligence community use
the standard form of secrecy agreement.t 2 This type of agreement only
12. These agreements are labeled standard form only because they are utilized by the majority of
intelligence organizations. Although each organization employs its own secrecy agreement, the major
provisions of each are strikingly similar. For example, the secrecy agreement that all civilian and military
personnel in the Department of Defense must sign typifies the standard form agreement. This agreement
provides in relevant part:
2. I agree that I will never divulge, publish or reveal, either by word, conduct or by any other
means, any classified information. . . except in the performance of my official duties and in
accordance with the laws of the United States, unless specifically authorized in writing by the
Secretary of Defense. . . .4. I understand that no change in my assignment or employment
will relieve me of my obligation under this agreement and that the provisions of this
agreement will remain binding upon me even after the termination of my service with the U.S.
Edwards Study, supra note 8, at 5.
In addition to the employment secrecy agreement signed by the employee upon entering the intelligence
agency, most organizations require the employee to sign a security termination agreement upon leaving the
agency. Id. at 10-14. For the most part, these termination agreements merely prohibit the unauthorized
disclosure of classified information. The termination statement employed by the DIA is typical: "Ihave a
continuing obligation never to divulge, publish, or reveal by writing . . .any classified information
relating to the national security.
...
Id. at 13. Some termination agreements, however, restrict more
than merely classified information. For example, the agreement used by the State Department's Bureau of
Intelligence and Research stipulates: "I shall not publish, nor reveal to any person, any classified
information. . . .or any other information transmitted to me in confidence in the course of my official
duties .... " Id. at 10.
Termination agreements, however, may be of questionable contractual validity. One of their primary
defects is a lack of consideration, because the departing employee does not receive anything of value from
the government for signing these agreements. United States v. Marchetti, 466 F.2d 1309, 1317 n.6 (4th
Cir.), cert. denied, 409 U.S. 1063 (1972) (dicta). If the employee refuses to sign the termination agreement,
he can be held nevertheless to his employment contract which continues to have contractual effect after his
employment terminates. United States v. Snepp, 456 F. Supp. 176 (E.D. Va. 1978), affd in part, rev'd in
part, 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No.
78-1871); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975);
United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972). See generally
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[Vol. 28:395
proscribes the release of classified information. 13 Because it does not contain
prepublication review provisions, a former employee need not submit his
complete manuscript for clearance or risk legal reprisal. Only if an employee
breaches one of these contracts by publishing or divulging classified information can he be subject to criminal and civil sanctions. 14
United States v. Marchetti 5 is the leading case construing the standard
form contract. The Court of Appeals for the Fourth Circuit held that these
agreements are enforceable and that they do not violate the first amendment,
because they only restrict the dissemination of classified information, a
restriction reasonably related to the government's interest in protecting
national security.' 6 The court also upheld the district court's issuance of an
injunction requiring Marchetti to submit his future writings for prepublication review. 17 This action was taken, however, only because Marchetti had
violated the terms of the standard form contract by repeatedly disclosing
classified information.' 8 Thus, the prior restraint upon publication was not a
Edwards Study, supra note 8. Moreover, even the government does not claim these termination agreements
to be valid contracts that supercede the employment contracts. Brief for Appellant at 24, United States v.
Snepp, 456 F. Supp. 176 (E.D. Va. 1978), affd in part, rev'd in part, 595 F.2d 926 (4th Cir. 1979), petition
for cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871). Thus, although the primary focus of
this comment is on employment contracts, the following analysis is nevertheless applicable to both kinds of
agreements.
13. See, e.g., "I shall not reveal to any person any Restricted Data or other classified information, of
which I gain knowledge as a result of my employment.
... Edwards Study, supra note 8, at 4
(Department of Energy contract). "I. . . agree that when I receive classified information. . .relating to
the ICS [Interagency Communications System]: I will neither furnish in writing, nor orally divulge, to any
person. . . the ICS classified information which I may acquire ...
" Id. at 2-3 (Department of Treasury
contract). "I shall not publish, nor reveal to any person, either during or after my employment, any
classified or administratively controlled information.
... Id. at I (Department of State contract).
14. See notes 72, 76-77 & accompanying text infra.
15. 466 F.2d 1309 (4th Cir.), cert. denied 409 U.S. 1063 (1972). Victor Marchetti was an employee of
the CIA for almost 14 years, ultimately attaining the post of Executive Assistant to the Deputy Director. In
1969, he resigned from the agency because he questioned the CIA's role in foreign policy and its possible
illegal involvement in domestic activities. Note, United States v. Marchetti and Alfred A. Knopf, Inc. v.
Colby: Secrecy 2; First Amendment 0, 3 HASTINGS CONST. L.Q. 1073, 1074-75 (1976); See Delong, A
Former Staff Officer Criticizes CIA Activities, U.S. NEWS & WORLD REP., Oct. 11, 1971, at 78; Otis,
Spooking the Spooks: The Victor Marchetti Story, RAMPARTS, Dec. 1972, at 8. Shortly after his departure
from the CIA, Marchetti publicized his concerns by criticizing the agency in several publications and
television interviews. See, e.g., V. MARCHETrI, THE ROPE DANCER (1971). In 1972, the CIA received
from a concerned source a draft of an article Marchetti had written for Esquire magazine and an outline of
a nonfiction book about the CIA, both of which contained classified information. The CIA promptly
sought to enjoin publication unless Marchetti complied with his secrecy agreement not to disclose classified
information. Brief for Appellant at 2, United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409
U.S. 1063 (1972). Marchetti's secrecy agreement provided in relevant part:
3. I do solemnly swear that I will never divulge, publish or reveal either by word, conduct, or
by any other means, any classified information, intelligence or knowledge except in the
performance of my official duties and in accordance with the laws of the United States, unless
specifically authorized in writing, in each case by the Director of Central Intelligence. ...
466 F.2d at 1312 n.1.
16. 466 F.2d at 1316-17.
17. Note, supra note 15, at 1075.
18. The district court in Marchetti stated:
1979]
GOVERNMENT SECRECY AGREEMENTS
condition of his contract with the Central Intelligence Agency (CIA);19
rather, it resulted from a court order issued after a pattern of classified
disclosures had been established that could have endangered the national
security.2 0 The Marchetti decision, therefore, should not be deemed to
authorize the incorporation in all secrecy contracts of prepublication review
provisions that necessitate examination of all material absent a basis for
believing that classified information is about to be disclosed.
B. PREPUBLICATION REVIEW AGREEMENTS
Some intelligence organizations have deviated from the standard form
secrecy agreement by adding provisions that require the employee to give the
agency the right of prepublication review. 21 Accordingly, prior to publicizing
any agency-related information, the employee must submit the information-whether classified or unclassified-to his agency for approval. 22
Until fairly recently, only the CIA and the Defense Intelligence Agency
(DIA) used these provisions in their employment contracts. 23 In 1973,
however, the Federal Bureau of Investigation (FBI) adopted a prepublication
review clause after using the standard form for more than forty years. 24 The
Specifically the Court finds that at least five of the items mentioned in the Karamessines
affidavit and testified to by Karamessines on the stand as appearing in the defendant's article
"Twilight of the Spooks," were classified; and at least three items which were taped for
television interviews also fit that category.
The Court finds that. . . the defendant has divulged and published and revealed, by writing
and by word, information relating to the national defense and security and information of that
nature relating to intelligence sources, methods, and operations, both classified and otherwise,
without first obtaining consent of the CIA.
United States v. Marchetti, No. 179-72-A (E.D. Va. May 19, 1972), affd, 446 F.2d 1309 (4th Cir.), cert.
denied, 409 U.S. 1063 (1972). A copy of this unpublished memorandum opinion can be found in the
addendum to the Government's brief in Snepp. Brief for Appellee at 13a-22a, United States v. Snepp, 456
F. Supp. 176 (E.D. Va. 1978), affd in part, rev'd in part, 595 F.2d 926 (4th Cir. 1979), petitionfor cert.filed,
47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
19. 466 F.2d at 1317 n.1. For the relevant provision of the contract that Marchetti signed, see note 15
supra.
20. As the court stated in Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.), cert. denied,
421 U.S. 992 (1975), "[w]ith respect to such [classified] information . . . he [Marchetti] effectively
relinquished his First Amendment rights."
21. All secrecy agreements prohibit disclosure of classified information, but only the CIA, DIA and
FBI have added provisions requiring prepublication review. Edwards Study, supra note 8, at 6-8.
22. The broad sweep of these provisions is exemplified by the prepublication review clause contained in
the DIA secrecy contract which provides:
3. I agree to submit for review by the Director of the Defense Intelligence Agency or his
designated representative, prior to discussing with or showing to any publisher. . . or other
unauthorized persons, all manuscripts, articles, speeches, and papers written by me or in
conjunction with others which contain or are derived from information or material obtained
by virtue of my employment or association with the Defense Intelligence Agency.
DIA Secrecy Agreement Form 22 (1-74) (emphasis added); see Edwards Study, supra note 8, at 7-8.
23 Even the CIA has not used prepublication review provisions consistently in all its employment
secrecy contracts. See CIA Secrecy Agreements on file with the American University Law Review.
24. See Edwards Study, supra note 8, at 7. The FBI agreement provides in part:
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[Vol. 28:395
change by the FBI may portend an increased use of these provisions by other
intelligence organizations. Moreover, the Fourth Circuit's recent decision in
United States v. Snepp2 5 also implicitly endorsed the use of prepublication
provisions by upholding their constitutionality.
In 1968, prior to his employment by the CIA, appellant Frank Snepp III
signed a secrecy contract.2 6 The contract contained the following broad
prepublication review provision: "I undertake not to publish . . . any
information or material relating to the Agency . . .without specific prior
approval by the Agency. I understand that it is established Agency policy to
27
refuse approval to publication . . . of any such information or material."
After resigning from the CIA,28 Snepp published a nonfiction book that was
highly critical of the CIA.29 At no point in the publication process did Snepp
request agency approval of his manuscript. The Government, therefore, filed
a civil suit against Snepp for his failure to submit his manuscript to the CIA
for the prepublication review required by his secrecy contract. Suit was
brought even though the Government did not contend that the book
contained any classified information. 30 By suing Snepp, the Government
sought, for the first time, to enforce a prepublication review agreement.
2. I agree that I will never divulge. . . any information from the investigatory files of the
FBI or any information or produce any material acquired as a part of the performance of my
official duties or because of my official status. The burden is on me to determine, prior to
disclosure, whether information may be disclosed and in this regard I agree to request
approval of the Director of the FBI in each such instance by presenting the full text of my
proposed disclosure in writing to the Director of the FBI at least thirty (30) days prior to
disclosure.
FBI Employment Agreement Form 291 (Rev. 3-1-76); see Edwards Study, supra note 8, at 6. The FBI
provided no rationale for this change of form, prompting the Department of Justice to report that the
"FBI's practices in this area, and the legal justification advanced for them are presently under review in the
Department's Office of Legal Counsel at the request of the Attorney General." Id. at 7.
25. 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No.
78-1871).
26. Frank Snepp III was a CIA employee from 1968 to 1976, attaining the post of Chief Strategy
Analyst in Vietnam. See generally F. SNEPP, DECENT INTERVAL (1977).
27. Brief for Appellant at 5 n.1, United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petitionfor cert.
filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
28. Snepp resigned from the CIA after unsuccessfully requesting on several occasions that the CIA
write an official after-action report concerning its errors in evacuating Saigon at the close of the war. Id. at
7, 9.
29. Snepp's book was highly critical of the CIA's failure to protect Vietnamese who had collaborated
with the CIA. Id. at 4. According to Snepp, these indigenous CIA employees who were left behind because
of the muddled evacuation would be subject to certain reprisal at the hands of the victorious North
is not too much to say that in terms of squandered lives, blown secrets and the betrayal of
Vietnamese. "[I]t
agents, friends and collaborators, our handling of the evacuation was an institutional disgrace." F. SNEPP,
DECENT INTERVAL 567 (1977).
The CIA's analysis of the book describes its contents as containing allegations that "the CIA's
intelligence reporting from Vietnam was fabricated and distorted; that the CIA manipulated press
reporting from Vietnam by providing false information to reporters; that Agency officials in Vietnam
engaged in corrupt practices .. "Brief for Appellant at 4, United States v. Snepp, 595 F.2d 926 (4th Cir.
1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
30. In response to interrogatories, the Government stated that for purposes of this action it did not
19791
GOVERNMENT SECRECY AGREEMENTS
In a memorandum opinion, the district court held that the CIA's
prepublication agreement was constitutional. Moreover, it found that Snepp
had "willfully, deliberately and surreptitiously breached his position of trust
with the CIA and the secrecy agreement" by his failure to submit his
manuscript for prepublication review. 31 Because it found that the breach
"caused the United States irreparable harm and loss [by impairing the] CIA's
ability to gather and protect intelligence relating to the security of the United
States of America, ' 32 the court enjoined Snepp from committing further
breaches by requiring that he submit all writings relating to the CIA for prior
agency approval. 33 The district court also imposed a constructive trust over
all proceeds realized from Snepp's book Decent Interval.34
The Court of Appeals for the Fourth Circuit affirmed the district court's
findings that prepublication review provisions are constitutional3 5 and that
Snepp breached his contractual agreement. 3 6 As authority for upholding the
validity of Snepp's secrecy contract, the Fourth Circuit relied heavily upon its
previous decision in Marchetti.37 The Marchetticase, however, is distinguishable in that Marchetti had released classified information and was planning to
do so again, thereby mandating use of an injunction to prevent further
dissemination of classified information.3 8 Indeed, the Government's right to
prepublication review of Marchetti's subsequent writings was merely part of
the court's remedy designed to prevent him from continuing to breach his
secrecy contract by releasing classified information. 39 In Snepp, on the other
40
hand, there was no charge that classified information had been released.
Furthermore, the Marchetti and Snepp contracts were not sufficiently similar
to warrant the same holding; Marchetti's contract did not include the broad
prepublication review provision contained in Snepp's contract. 4 1 The underlying facts that supported the injunction in Marchetti, therefore, are absent in
Snepp.
42
contend "that Decent Intervalcontains classified information or any information concerning intelligence or
CIA that has not been made public by CIA." Brief for Appellee at 15 n.8, United States v. Snepp, 595 F.2d
926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
31. United States v. Snepp, 456 F. Supp. 176, 179 (E.D. Va. 1978), affd in part, rev'd in part, 595 F.2d
926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
32.
33.
34.
35.
Id. at 180.
Id. at 182.
Id.
United States v. Snepp, 595 F.2d 926, 931-32 (4th Cir. 1979), petition for cert.filed, 47 U.S.L.W.
3826 (U.S. June 18, 1979) (No. 78-1871). The court of appeals did not apply any first amendment
standard; instead, it relied solely on its holding in Marchetti. Id. at 931-32.
36. Id. at 932.
37.
38.
39.
40.
Id. at 931-32.
See note 18 supra.
See notes 18-20 & accompanying text supra.
See note 30 & accompanying text supra.
41. See note 15 & text accompanying note 27 supra.
42. The court in Marchetti indicated that there is a distinction between prohibitions on the release of
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The court of appeals, however, reversed the district court's finding of
fiduciary liability because Snepp has "a first amendment right to publish
anything not classified." 43 According to the Fourth Circuit, Snepp's only
fiduciary duty was a duty not to disclose classified material. Because Snepp
had a constitutional right to publish unclassified information and the
government did not contend that he published classified information, the
district court's imposition of a constructive trust was improper. 44 In reaching
this conclusion, however, the Fourth Circuit created an anomalous situation:
prepublication review of unclassified information violates the first amendclassified information and those imposed on unclassified information:
We readily agree with Marchetti that the First Amendment limits the extent to which the
United States, contractually or otherwise, may impose secrecy requirements upon its
employees and enforce them with a system of prior censorship. It precludes such restraints
with respect to information which is unclassified or officially disclosed.
United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir.), cert. denied, 409 U.S. 1063 (1972). By
upholding the constitutionality of the CIA's secrecy agreement in Snepp, the Fourth Circuit ignored the
distinction between classified and unclassified information that it had apparently formulated in Marchetti.
The Fourth Circuit also indicated in Marchetti that it would not have enforced the prepublication
review provisions in Marchetti's termination agreement: "We would decline enforcement of the secrecy
oath signed when he left the employment of the CIA to the extent that it purports to prevent disclosure of
unclassified information, for, to that extent, the oath would be in contravention of his First Amendment
rights." Id. The same court in Snepp, however, apparently did not find this language controlling.
43. United States v. Snepp, 595 F.2d 926, 935 (4th Cir. 1979), petition for cert.filed, 47 U.S.L.W. 3826
(U.S. June 18, 1979) (No. 78-1871). The Government maintained that, under general principles of agency
law, the employment relationship creates a duty not to disclose information that the employer wishes to
keep confidential. This purported fiduciary relationship and its concomitant obligations was described by
the Government in its complaint in Snepp:
11. During the course of his Agency employment, defendant Snepp was assigned to various
positions of trust. . . granted frequent access to classified information, including information
regarding intelligence sources and methods.
12. By virtue of the nature of his Agency employment, defendant Snepp had a fiduciary
obligation to protect classified information and information pertaining to intelligence sources
and methods from unauthorized disclosure and to submit to the Agency for its review any
materials concerning the Agency or its activities intended for publication, which was gained
as a result of his employment, prior to the publication of such materials.
Complaint at 3, United States v. Snepp, 456 F. Supp. 176 (E.D. Va. 1978), affd in part, rev'd in part, 595
F.2d 926 (4th Cir. 1979), petitionfor cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871). This
fiduciary concept is important because it can arise irrespective of contractual obligations. Under the
Government's theory, therefore, not only employees who signed secrecy agreements, but any other
government employees in a similar position of trust and confidence, would be subject to prepublication
review.
The first amendment, however, gives the public employee added protection for expression because its
constraints always apply to public employment whereas it does not restrict private employers. Thus, court
decisions on the first amendment rights of government employees, rather than agency law, determine
whether the employment relationship between the government and its former employees places publishing
without prior review outside the scope of expression protected by the first amendment. Comment,
Government Information Leaks and the First Amendment, 64 CALIF. L. REV. 108, 136 (1976) [hereinafter
cited as Government Information Leaks]. See United States v. Snepp, 595 F.2d 926, 935-36 (4th Cir. 1979),
petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
44. United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S.
June 18, 1979) (No. 78-1871). The Government did not accuse Snepp of publishing classified information.
See note 30 & accompanying text supra.
1979]
GOVERNMENT SECRECY AGREEMENTS
403
ment when premised on a fiduciary duty but not if based on a contractual
duty. Such a distinction is unfounded, because first amendment principles
prevail over contract as well as agency law.
Despite finding that Snepp breached no fiduciary duty to the CIA, the
court of appeals concluded that the Government was entitled to nominal
damages and any compensatory and punitive damages it could prove to a
jury.45 Accordingly, the Fourth Circuit's reversal of the constructive trust is
significant. In order to recover compensatory damages for breach of contract,
46
the Government must prove both causation and quantifiability of damages.
Yet, it was the inability to prove causation-that is, how the release of
unclassified information had injured national security-that compelled the
Government in Snepp to argue breach of fiduciary duty.47 Under a fiduciary
45. United States v. Snepp, 595 F.2d 926, 936-38 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W.
3826 (U.S. June 18, 1979) (No. 78-1871).
46. "The district court, of course, found that the government's damages were not quantifiable; but even
if the government is unable to prove the dollar value of the injuries to it flowing from the breach, it is
entitled to nominal damages." Id. at 936.
47. Snepp's counsel argued vigorously during the trial that the Government could not prove damages
for breach of contract because it was unable to demonstrate injury resulting from the release of unclassified
information. Record, vol. 1, at 25-26, 30-33, United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition
for cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871). This difficulty was aptly illustrated by
CIA Director Turner's testimony, which assessed injury to the Government flowing from the publication
of Snepp's book as follows:
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.
Id. vol. 2, at 113. Director Turner's assessment, however, does not supply a sufficient basis for the purpose
of proving causation because he was unable to attribute any loss of intelligence sources specifically to
Snepp's breach of contract. Indeed, Director Turner could only state that "[Snepp's] is one, and a very
serious one, of a number of incidents that have diminished this worldwide confidence in our ability." Id. Cf.
former CIA Director Colby's testimony that congressional investigations of the agency "had a great deal to
do with" the dimunition of foreign sources' confidence in the agency while he was Director. Id. vol. 2, at
179.
The Government's heavy burden of proving that harm was proximately caused by the release of Snepp's
book, which did not contain classified information, becomes apparent when compared to some of the other
"incidents" that have recently taken place concerning the protection of classified information. See, e.g.,
United States v. Kampiles, HCR 78-77 (N.D. Ill. Nov. 17, 1978) (low level CIA official stole, and sold to
Russians, top secret reconnaissance satellite manual). In an inventory taken after Kampiles' arrest, "the
CIA found that 13 other copies of the top secret manual--out of 350 printed in late 1976-are missing."
Wash. Post, Nov. 18, 1978, § A, at 10, col. 5; cf Wash. Post, May 19, 1979, § A, at 3, col. 3 (discovery that
document containing secret hydrogen bomb data had been copied by student American Civil Liberties
Union researcher after report had been mistakenly declassified over four years before and placed on shelves
of public library of Los Alamos laboratory in New Mexico). See also Brief for Appellant at 60 n.34, United
States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petitionfor cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979)
(No. 78-1871) (last U.S. Ambassador to Vietnam stored highly classified documents in trunk of his
automobile; car subsequently stolen and "these documents were scattered around the North Carolina
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
theory, inability to quantify damages and to prove causation are not barriers
to relief, because the court may use its equity power to impose a constructive
trust for the breach of fiduciary duty. 48 Because the Government must rely on
its breach of contract theory, it probably will be unable to obtain compensatory damages.
Moreover, allowing the Government to seek punitive damages solely for a
breach of contract, particularly when only nominal damages have been
awarded, is contrary to the weight of authority. 49 In most federal courts,
countryside."). Incidents such as these appear much more likely to cause loss of confidence in the CIA and
the intelligence community in general than does the unreviewed publication of a book by a former
employee.
Moreover, even if the element of causation were satisfied, it would be impossible to quantify contractual
damages based on Director Turner's testimony. Indeed, "[d]uring the pretrial proceedings in the present
case, the government conceded that it could not prove any dollar damages and that it had no adequate
remedy at law." United States v. Snepp, 595 F.2d 926, 940 (4th Cir. 1979)(Hoffman, J., concurring in part,
dissenting in part). Thus, the Government was forced to seek damages under a ficudiary theory of liability
wherein it "need not show any injury at all. The mere fact there has been a breach is sufficient." Record,
vol. 1, at 46, United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petitionfor cert. filed, 47 U.S.L.W. 3826
(U.S. June 18, 1979) (No. 78-1871) (Government stating its position on damages).
48. United States v. Snepp, 456 F. Supp. 176, 182 (E.D. Va. 1978), affd in part, rey'd in part, 595 F.2d
926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
49. According to the overwhelming weight of authority, punitive damages generally are not recoverable
in actions for breach of contract. See, e.g., Ranco Fertiservice, Inc. v. Laursen, 456 F.2d 988, 991 (8th Cir.
1972); Wood v. Citronelle-Mobile Gathering Sys. Co., 409 F.2d 367, 369 (5th Cir. 1968)(per curiam);
Cassady v. United States Ins. Co., 370 F. Supp. 388, 395 (W.D. Ark. 1974). See generally Annot. 84 A.L.R.
1345 (1933); 22 AM. JUR. 2D Damages § 245 (1965); 5 A. CORBIN, CONTRACTS § 1077 (1964);
RESTATEMENT OF CONTRACTS § 342 (1932); 2 S. WILLISTON, CONTRACTS § 1340 (3d ed. 1968). Even if a
party willfully or fraudulently breaches a contract, in many jurisdictions the opposing party cannot recover
punitive damages. See, e.g., Ranco Fertiservice, Inc. v. Laursen, 456 F.2d 988, 991 (8th Cir. 1972); Wood v.
Citronelle-Mobile Gathering Sys. Co., 409 F.2d 367, 369 (5th Cir. 1968); accord, Kingsley v. Baker/BeechNut Corp., 546 F.2d 1136, 1142 (5th Cir. 1977)(willful, malicious conduct accompanying breach of
contract will not support recovery of exemplary damages).
Most jurisdictions, however, have carved out exceptions to the general rule. The principle exception is
that punitive damages may be recovered for breach of contract in "exceptional cases" as when the breach
amounts to an independent, willful tort. 11 S. WILLISTON, CONTRACTS § 1340 (3d ed. 1968); 5 A. CORBIN,
CONTRACTS § 1077 (1964). To support such a claim most courts require that there be actual malice, fraud,
wantonness or oppression, before awarding punitive damages."The usual examples are suits for breach of
promise, suits against public service companies for breach of some contractual undertaking, and suits by a
depositor against a bank for wrongfully failing to honor checks or drafts." United States v. Snepp, 595 F.2d
926, 936 (4th Cir. 1979) petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871)
(footnote omitted); see 15 AM. JUR. 2D Damages § 273.
Although the court in Snepp acknowledged that "the instant case does not fit nicely into any of these
categories," it nevertheless held that Snepp's breach was an exception to the general rule against awarding
punitive damages. 595 F.2d at 937. The court reasoned that Snepp's breach constituted the independent
willful tort ofdeceit because Snepp had falsely represented to the CIA that he would submit his manuscript
for prepublication review, and instead surreptiously submitted it to his publisher which arguably deprived
the CIA of the opportunity to seek an injunction. 595 F.2d at 937. The court concluded that punitive
damages were permissible because it deemed Snepp's breach to have been "intentional and deliberate," and
having "the character of outrage frequently associated with crime.
...
595 F.2d at 937.
The court's analysis, however, is deficient because the situation presented in Snepp is distinguishable
from the "typical" cases where punitive damages have been awarded. In most of the "exceptional" cases
there have been compelling public policy considerations that persuaded the various courts to award
1979]
GOVERNMENT SECRECY AGREEMENTS
therefore, the Government has only a claim for nominal damages because
compensatory damages are virtually unprovable and punitive damages
generally are not permitted for a simple breach of contract. Thus, the form of
relief that the court of appeals adopted essentially undercuts the ability of
prepublication review contracts to deter former employees from publishing
without prior agency approval.
Notwithstanding the possible diminution of the efficacy of these contracts
by its decision the Fourth Circuit, in Snepp, nevertheless upheld for the first
time the constitutionality of prepublication review agreements. By basing its
decision primarily on Marchetti, however, the court did not explicitly
consider these agreements in terms of first amendment standards. Thus, a
basic first amendment question remains unanswered concerning the constitutionality of prepublication review provisions.5 0 This comment, therefore,
analyzes prepublication review provisions under two distinct first amendment
punitive damages. In Snepp. however, it is questionable whether such public policy concerns are served by
the attempt to deter former employees from publishing unclassified information by awarding punitive
damages. Similarly, the court overstated its point when it characterized the mere exercise of first
amendment rights as having the "character associated with crime," 595 F.2d at 937, thus enabling the
court to hold this simple breach of contract to be an "exceptional" case which warrants the waiver of the
general rule. Furthermore, even assuming arguendo that the breach of such an agreement provides
sufficient grounds to find an independent willful tort, the majority of courts will not award punitive
damages unless accompanied by actual compensatory damages. As Professor Prosser states:
The greater number of courts have said that they [punitive damages] are limited to cases in
which actual compensatory damages are found by the jury. Sometimes this obviously means
only that without a finding of such damages there is no cause of action at all, and nothing to
support the award; but some of these courts have gone further and have held that punitive
damages cannot be sustained where a cause of action is found but only nominal damages are
awarded.
W. PROSSER, LAW OF TORTS § 2 at 13-14 (4th ed. 1971)(footnote omitted). Because proof of the need for
compensatory damages in this type of case is virtually impossible, the Government in bringing such suits
will be forced to search for a forum that will award punitive damages when only nominal damages are
granted. See United States v. Snepp, 595 F.2d 926, 940 n.2 (4th Cir. 1979) (dissenting opinion), petition for
cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979)(No. 78-1871). See also 22 AM. JUR. 2D, Damages § 242
(split among jurisdictions as to whether nominal damages sufficient support for exemplary damages
awards). In short, even if the Government can convince a court that the breach of prepublication review
agreements constitutes an independent willful tort, it still will not be able to recover punitive damages in
many courts because compensatory damages are not granted in cases such as Snepp.
50. A former CIA officer has requested the United States District Court for the District of Columbia to
declare unenforceable the prepublication review secrecy agreements signed by him, alleging that they
created an impermissible burden on his first amendment rights. Complaint for Declaratory and Injunctive
Relief, McGehee v. Turner, No. 78-2407 (D.D.C. Dec. 22, 1978). The former official, Ralph W. McGehee,
seeks declaratory and injunctive relief to prevent the agency from restraining or penalizing him for
publishing a book that would deal, in part, with alleged intelligence failures in Asia. Id. at 3. The book is
based on research McGehee conducted after leaving the agency in 1977 and on information acquired
during his 25 years with the agency, including tours of duty in Vietnam and Thailand. Id. McGehee,
however, "does not plan to include in his book any information which is classified and which has not
already been made public by the CIA and other United States Government agencies." Id. at 4. McGehee
believes that he is capable of distinguishing between classified and unclassified information because
"[d]uring his employment with the CIA, classification authority was delegated to him, and he was
empowered to classify and declassify information. Additionally, he was given extensive training on the
protection of classified information." Plaintiffs' Memorandum of Points and Authorities in Support of
their Motion for Summary Judgment at 2, McGehee v. Turner, No. 78-2407 (D.D.C. Jan. 29, 1979).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
standards. First, it examines these agreements according to the first amendment standard of reasonableness. Despite the relative weakness of this
standard in protecting first amendment rights, the Government's interest is
nevertheless outweighed by the public employee's rights. Second, the comment addresses prepublication provisions under the doctrine of prior restraint
in order to demonstrate that the Government has not carried the heavy
burden required by this higher first amendment standard.
II.
THE FIRST AMENDMENT STANDARD OF REASONABLENESS
Historically, the Government's power to restrict a public employee's first
amendment rights has been virtually unlimited. As Justice Holmes stated,
"[t]he petitioner may have a constitutional right to talk politics, but he has no
constitutional right to be a policeman." 51 Subsequently, this concept became
known as the right-privilege doctrine: although citizens had a first amendment right to free speech, public employment was a privilege that could be
denied when that employee's free speech became offensive.
52
In recent years, however, the right-privilege distinction has been rejected.
In its place, a new reasonableness standard has emerged. 53 Under this
51. McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892).
52. The right-privilege doctrine is no longer followed by the Supreme Court. "IT]his Court now has
rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as
a 'right' or as a 'privilege.' " Graham v. Richardson, 403 U.S. 365, 374 (1971). For example, in Perry v.
Sindermann, 408 U.S. 593 (1972), a teacher alleged that because the state college system's decision not to
rehire him was based on his public criticism of the college administration, it infringed upon his right to free
speech. The Court held that Sindermann's lack of a contractual or tenure "right" was immaterial to his free
speech claim, stating:
For at least a quarter century, this Court has made clear that even though a person has no
"right" to a valuable governmental benefit and even though the government may deny him
the benefit for any number of reasons, there are some reasons upon which the government
may not rely. It may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests-especially, his interest in freedom of speech. For if the
government could deny a benefit to a person because of his constitutionally protected speech
or associations, his exercise of those freedoms would in effect be penalized and inhibited. This
would allow the government to "produce a result which [it] could not command directly."
Such interference with constitutional rights is impermissible.
Id. at 597 (citation omitted); see Bell v. Burson, 402 U.S. 535, 539 (1971); Goldberg v. Kelly, 397 U.S. 254,
262 (1970); Sherbert v. Verner, 374 U.S. 398, 404 (1963). See generally Van Alstyne, The Demise of the
Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968).
53. The first clear use of the reasonableness standard occurred in Adler v. Board of Education, 342 U.S.
485 (1952). Construing a New York statute that made teachers who advocated the overthrow of the
government ineligible for employment, the Court stated:
It is clear that such persons have the right under our law to assemble, speak, think and believe
as they will. It is equally clear that they have no right to work for the State in the school
system on their own terms. They may work for the school system upon reasonable terms laid
down by the proper authorities of New York. If they do not choose to work on such terms,
they are at liberty to retain their beliefs and associations and go elsewhere. Has the state
1979]
GOVERNMENT SECRECY AGREEMENTS
standard, the Government's power to impose contractual conditions upon
first amendment rights as a prerequisite to public employment is narrowly
circumscribed to situations where the surrender of the employee's rights is
reasonably necessary to protect an important governmental interest.
A. THE CONTOURS OF THE REASONABLENESS STANDARD
Under the reasonableness standard, the Government may not, as a
condition of employment, require an employee to surrender his first amendment rights. Rather, the Government may restrict such rights only if
reasonably necessary to protect an important governmental interest. 54 Several
cases have utilized this test when first amendment rights are at issue.
Pickering v. Board of Education55 is the leading case defining the first
amendment right of government employees to criticize publicly their superiors or the policies of their agency. In Pickering, the United States Supreme
Court expressed the reasonableness standard in the following terms:
[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how
unreasonable, has been uniformly rejected. At the same time it
cannot be gainsaid that the State has interests as an employer in
regulating the speech of its employees that differ significantly from
those it possesses in connection with regulation of the speech of the
citizenry in general. The problem in any case is to arrive at a
deprived them of any right to free speech or assembly? We think not.
Id. at 492 (citation omitted). The Court subsequently stated this principle in Keyishian v. Board of
Regents, 385 U.S. 589 (1967), in which a New York statute required teachers to take a loyalty oath that
they were not Communists. "'[The theory that public employment which may be denied altogether may
be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Indeed, that
theory was expressly rejected in a series of decisions following Adler." Id. at 605-06 (citations omitted).
54. This approach has been followed widely by courts of appeals in cases where public employees have
been dismissed for publicly criticizing their superiors or policies of their organizations. See, e.g., Ring v.
Schlesinger, 502 F.2d 479, 484 (D.C. Cir. 1974); Jannetta v. Cole, 493 F.2d 1334, 1337 (4th Cir. 1974);
Smith v. Losee, 485 F.2d 334, 339 (10th Cir. 1973); Hostrop v. Board of Junior College Dist. No. 515, 471
F.2d 488, 492 (7th Cir. 1972); lannarelli v. Morton, 327 F. Supp. 873, 880, affd, 463 F.2d 179 (3d Cir.
1972). Indeed, the Government in Snepp acknowledged the applicability of this standard to prepublication
review agreements when it stated: "It is well-recognized that the validity of conditions of public
employment which affect the First Amendment are to be measured by a balancing test. . . . As indicated
by these cases, a majority of the Supreme Court applies a general test of reasonableness in light of the
competing interests." Brief for Appellee at 32 n.24 (citations omitted), United States v. Snepp, 595 F.2d
926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871).
55. 391 U.S. 563 (1968). Pickering, a high school teacher, was dismissed for writing and submitting to a
newspaper an inflammatory letter that criticized the local school board. The letter revealed information
that purportedly discredited the policies of the Board of Education, and the Board found it to be
"detrimental to the efficient operation and administration of the schools of the district." Id. at 571. The
information contained in Pickering's letter was partly false, but partly correct. The Court held that the false
statements were entitled to the same protection afforded statements made by a member of the general
public. Absent proof that those false statements were knowingly or recklessly made, the Board was not
justified in dismissing Pickering from public employment. Id. at 573-75; see New York Times Co. v.
Sullivan, 376 U.S. 254 (1964).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
balance between the interests of the teacher, as a citizen in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
56
services it performs through its employees.
According to the Court, an employee's free speech is protected by the first
amendment as long as it does not impair the efficient administration of public
57
services in which the employee is engaged.
The Supreme Court has also employed the reasonableness standard when
balancing various governmental interests against the individual's first amendment right of free association. In United States v. Robel,58 for example, the
Court held that a statute making it a crime for Communist Party members to
work in defense facilities violated the defendant's right of free association
protected by the first amendment, notwithstanding the substantial governmental interest in protecting defense facilities from threats of sabotage and
espionage. 59
56. 391 U.S. at 568 (citations omitted). In Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 276, 284
(1977), the Court cites Pickering with approval, thereby indicating that the reasonableness test remains in
effect.
57. 391 U.S. at 572-73; accord, Donahue v. Staunton, 471 F.2d 475, 481 (7th Cir. 1972), cert. denied,
410 U.S. 955 (1973) (where chaplain at state mental hospital was discharged for publicly criticizing
hospital procedures, court held that his first amendment rights were violated because "the interest of
society in 'uninhibited and robust debate' on matters of public concern, such as mental health care, and the
plaintiff's individual interest in being free to speak out on matters of concern to him outweigh those of the
State as an employer."); Commonwealth ex rel. Rafferty v. Philadelphia Psychiatric Center, 356 F. Supp
500 (1973) (nurse's discharge for criticizing her supervisors in newspaper violated first amendment).
Belshaw v. City of Berkeley, 246 Cal. App. 2d 493, 54 Cal. Rptr. 727 (1966)(court upheld, on first
amendment grounds, reinstatement of fireman dismissed for writing letter to editor criticizing city's hiring
practices).
58. 389 U.S. 258 (1967).
59. In considering the interests involved, the Court noted:
The Government emphasizes that the purpose of § 5(a)(1)(D) is to reduce the threat of
sabotage and espionage in the Nation's defense plants. The Government's interest in such a
prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to
implement that governmental purpose in this instance cut deeply into the right of association
.... The statute quite literally establishes guilt by association alone, without any need to
establish that an individual's association poses the threat feared by the Government in
proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear.
Id. at 264-65.
The Court in Robel explicitly denied that it was " 'balancing' the governmental interests expressed in §
5(a)(1)(D) against the First Amendment rights asserted .. ."Id. at 268 n.20. Rather, it ruled "only that
the Constitution requires that the conflict between congressional power and individual rights be
accommodated by legislation drawn more narrowly to avoid the conflict." Id. This denial of balancing
under the guise of the "less restrictive alternatives" approach, however, has been criticized as unpersuasive
Professor Gunther, in commenting upon the Robel decision, states:
[T]he Court acknowledges that the case is one of competing values: there is no denial of the
Government's interest in preventive legislation; there is no blinking at the impact on
protected activity; there is above all recognition of the "delicate and difficult task" ofjudging
when congressional powers and individual liberties clash. Yet a long and strange concluding
footnote seems determined to make that task appear less delicate, less difficult, more
1979]
GOVERNMENT SECRECY AGREEMENTS
Similarly, in a series of cases involving government-imposed loyalty
oaths, 60 the Court closely examined the Government's purported security and
efficiency interests in balancing them against individual first amendment
rights. In Elfbrandt v. Russell,61 for example, the Court held a loyalty oath to
be overly broad because it did not distinguish between employees who joined
subversive organizations with the specific intent to further unlawful aims and
those who did not. 62 Concluding that the state's interest in ascertaining the
loyalty of public employees was outweighed by the employee's first amendment rights, 63 the Court held that the oath infringed unreasonably upon
freedom of association protected by the first amendment. 64 Likewise, a
government that legitimately seeks to bar disloyal employees cannot exclude
individuals solely on the basis of organization membership, irrespective of
mechanistic than it is or can be.
.
.
. The Court's disavowals are, of course, not persuasive
[P]erhaps some day it will be able to confront competing ultimate values, as it does here,
without denying that it is doing so-whether the process is called "balancing" or has another
label to which the majority is less allergic.
Gunther, Reflections on Robel: It's Not What the Court Did But the Way That It Did It, 20 STAN. L. REi.
1140, 1147-48 (1968). In short, it appears that the Court in Robel is implicitly balancing the competing
interests despite its contradictory "less restrictive means" language. See Note, Less Drastic Means and the
First Amendment, 78 YALE L.J. 464, 464 (1969) ("invocation of the phrase 'less drastic means' does not so
much explain the result as announce it"); cf Shelton v. Tucker, 364 U.S. 479, 493 (1960) (Frankfurter, J.,
dissenting) ("Consideration of alternatives may focus the precise exercise of state legislative authority
which is tested . . . by the standard of reasonableness, but it does not alter or displace that standard.").
60. E.g., Whitehill v. Elkins, 389 U.S. 54 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967);
Elfbrandt v. Russell, 384 U.S. 11 (1966); Baggett v. Bullitt, 377 U.S. 360 (1964); Speiser v. Randall, 357
U.S. 513 (1958); Wieman v. Updegraff, 344 U.S. 183 (1952).
61. 384 U.S. 11 (1966). An Arizona statute required state employees to swear under oath that they were
not Communist Party members. The statute made it a felony to take the oath if the employee knowingly
was a member of any organization that had as one of its purposes the overthrow of the government. Id. at
12-13.
62. Id. at 17.
63. A similar result was reached in Shelton v. Tucker, 364 U.S. 479 (1960). The Court conceded the
legitimacy and importance of the governmental interest-ascertaining the fitness and competence of public
school teachers-but nevertheless struck down an Arkansas statute that required every publicly employed
teacher to file an annual affidavit listing every organization to which he has .belonged or has regularly
contributed within the previous five years. The Court found that the statute was overly broad because it
required a teacher to disclose every associational tie, including clubs and political parties. Because it went
"far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and
competency of its teachers," id. at 490, the statute violated the teachers' right of free association, "a right
closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free
society." Id. at 486.
64, Cf. Torcaso v. Watkins, 367 U.S. 488 (1961) (freedom of religion infringed by requirement that
public official swear under oath his belief in God); Slochower v. Board of Higher Educ., 350 U.S. 551
(1956) (professor's dismissal following assertion of his fifth amendment privilege against self-incrimination
to block a congressional investigation into his past Communist Party activities violates Constitution). In
Slochower, the Court noted the delicate nature of the standard to be applied:
The problem of balancing the State's interest in the loyalty of those in its service with the
traditional safeguards of individual rights is a continuing one. To state that a person does not
have a constitutional right to government employment is only to say that he must comply
with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities.
Id. at 555.
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[Vol. 28:395
their knowledge concerning the activities and purposes of the organization. 65
Such broad exclusion unreasonably infringes upon the fundamental right of
66
public employees to associate freely.
B. THE REASONABLENESS STANDARD APPLIED TO PREPUBLICATION
REVIEW PROVISIONS
The Court will apply the standard of reasonableness whenever the
Government seeks to protect its interests in security and efficiency by placing
conditions on public employment that restrict employees' first amendment
freedoms of speech and association. Under this standard, the reasonableness
of an employment contract is determined by balancing the Government's
interests against an employee's first amendment rights. Of critical importance
to the balance is the gravity of the threat to government security or the degree
of impairment to government efficiency, and the reasonableness of the means
used to protect against
it.67
1. The Government's Interest
Primarily, the Government seeks to protect national security by the
imposition of prepublication review provisions. The need for secrecy with
respect to the Government's classified intelligence information is well established. 68 By using prepublication review provisions, however, the Government
goes beyond restricting merely classified information by restraining all
69
information until it determines which information is unclassified.
65. In Wieman v. Updegraff, 344 U.S. 183 (1952), an Oklahoma statute required all state employees to
take a loyalty oath stating that they are not presently, nor have they been for the preceding five years,
members of any organization listed by the Attorney General as "a communist front or subversive
organization." Id. at 186. The Court found that this statute violated due process because it imposed
sanctions for membership in subversive organizations without distinguishing between knowing and
innocent associations. Id. at 190-91.
66. Cf.The Hatch Act cases-Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548
(1973), and United Pub. Workers v. Mitchell, 330 U.S. 75 (1957)-in which the Court applied the
reasonableness test in upholding provisions of the Hatch Act, Pub. L. No. 89-554, 80 Stat. 525
(1966)(current version at 5 U.S.C. §§ 7321-7327 (1976 & Supp. 1979), which makes it unlawful for federal
employees to actively participate in political campaigns. For an excellent examination of the Court's
reasoning in these cases, see Government Information Leaks, supra note 43, at 137-39.
67. See, e.g., text accompanying notes 31-32 supra. The Government's interest in the efficiency of the
service is not directly implicated when the focus is on former, rather than current, employees as in this
comment.
68. See, e.g., Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)("The
President. . .has available intelligence services whose reports are not and ought not to be published to the
world."); United States v. Curtiss-Wright Export Corp. 299 U.S. 304, 320 (1936)("Secrecy in respect of
information gathered . . . may be highly necessary, and the premature disclosure of it productive of
harmful results."); E.W. Bliss Co. v. United States, 248 U.S. 37 (1918) (defense contractor enjoined from
divulging the details of a torpedo to other customers). See also New York Times Co. v. United States, 403
U.S. 713, 728-30 (1971) (Stewart, J., concurring) (Pentagon Papers Case); see generally Henkin, The Right
to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U. PA. L. REV. 271 (1971).
69. The Government maintains that "[o]nly those at the top of the intelligence community pyramid
1979]
GOVERNMENT SECRECY AGREEMENTS
As justification for the broad sweep of these provisions, the Government
purports to protect intelligence sources and methods, most of which are
classified, from disclosure. 70 Both the current director of the CIA and a
former director testified at Snepp's trial that agency control over publication
72
was essential to protect agency secrets. 7 1 Although the Espionage Act
provides criminal sanctions for the release of classified information, the
Government maintains that the practical difficulties of applying such sanctions renders them inadequate. 73 Federal prosecutors, for example, are
have the total view of the many pieces of the puzzle to know the implication of the release of any one item."
Government's Memorandum of Points and Authorities for Judgment on the Pleadings or in the
Alternative for Summary Judgment at 20, United States v. Snepp, 456 F. Supp. 176 (E.D. Va. 1978), affd
in part, rev'd in part. 595 F.2d 926 (4th Cir. 1979), petition for cert.filed, 47 U.S.L.W. 3826 (U.S. June 18,
1979) (No. 78-1871). The Fourth Circuit accepted this view in United States v. Marchetti, 466 F.2d 1309,
1318 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), and most recently in United States v. Snepp, 595 F.2d
926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. (U.S. June 18, 1979) (No. 78-1871).
70. The court in United States v. Snepp, 456 F. Supp. 176 (E.D. Va. 1978), affd in part, rev'd in part,
595 F.2d 926 (4th Cir. 1979), petition for cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871),
defines sources and methods in the following terms:
The undisputed evidence discloses that the CIA collects intelligence by two generic
ways--one is through human sources who tell us information-we call that "sources"-the
other is through technical means of collecting data, where a machine does it for you in one
way or another-we call those "methods" of collecting intelligence.
Id. at 179.
71. See note 47 supra.
72. 18 U.S.C. §§ 793-799 (1976). Sections 793 and 798 of Title 18 are the statutes most consistently
cited in entrance secrecy agreements. For example, one agreement provides: "I have read the provisions of
the espionage laws (section 793, 794, and 798 of Title 18, United States Code) and I am aware that
unauthorized disclosures of classified information relating to the national defense may subject me to
prosecution for violation of those laws." CIA Entrance on Duty Secrecy Agreement Form 2-74. Section
793(d) provides in pertinent part:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any
document, writing. . . or information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates . . . the same to any person not
entitled to receive it ... [s]hall be fined not more than $10,000 or imprisoned not more than
ten years, or both.
18 U.S.C. § 793(d) (1976). Contrast this with § 798(a) of Title 18:
Whoever knowingly and willfully communicates . . . or publishes, or uses in any manner
prejudicial to the safety or interest of the United States or for the benefit of any foreign
government. . . any classified information. . . concerning the communication intelligence
activities of the United States or any foreign government; or obtained by the process of
communication intelligence from the communications of any foreign government, knowing
the same to have been obtained by such processes-[s]hall be fined not more than $10,000 or
imprisoned not more than ten years, or both.
18 U.S.C. § 798(a) (1976). See generally, Developments in the Law-National Security Interest and Civil
Liberties, 85 HARV. L. REV. 1130, 1234-39 (1972).
73. In criminal cases, for example, the Government must prove beyond a reasonable doubt that the
classified information disclosed actually caused damage to the national security. "Thus, communication of
classified information is not in itself a substantive evil of sufficient magnitude to cause the application of a
criminal statute.'" Note, supra note 15, at 1101. Conversely, in a civil action for breach of contract, the
Government need only persuade the court that the prepublication review contract was valid in order to win
its case. See United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petitionfor cert.filed, 47 U.S.L.W. 3826
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
reluctant to prosecute criminal cases that involve national security because
they might have to release more classified information to prove the case
successfully. 74 To enforce criminal sanctions, therefore, the Government must
confront the dilemma of prosecuting, and possibly further endangering
national security, or not prosecuting, and removing the deterrent effect of the
75
statute.
Injunctions present an alternative means by which the Government can
prevent the release of classified information. As it demonstrated in Marchetti,
the Government can seek a judicial order to prevent disclosure when there is a
threatened unauthorized release of classified material. 76 If the order is
granted, the Government can enjoin such disclosure by an employee who has
shown, by his past or present activities, a proclivity to release classified
information. 77 Injunctive relief, however, does not function automatically as
(U.S. June 18, 1979) (No. 78-1871). The Government is not required to introduce any classified documents
or debate whether the materials should have been classified originally. See notes 25-41 & accompanying
text supra.
74. To sustain its burden of proof, the Government must introduce into evidence at least the classified
material allegedly disclosed by the defendant. As one United States intelligence source said: "One of the
problems is that in order to prosecute we might have to release classified information and we just can't do
that." Wash. Post, Aug. 20, 1978, § A, at 1, col. 3; see, e.g., United States v. Berrellez, Crim. No. 78-120
(D.D.C. Oct. 23, 1978), in which the judge dismissed the jury in the perjury and conspiracy trial of an
International Telephone and Telegraph Corp. (ITT) executive, Robert Berrellez, rather than accept the
Justice Department's special procedure for protecting sensitive information. Wash. Post, Nov. 14, 1978, §
A, at 6, col. 5. Berrellez was charged with lying and conspiring with CIA officers to obstruct a 1973 Senate
investigation of efforts by the CIA and ITT to block the 1970 election of Salvador Allende as president of
Chile. Id. The Justice Department requested that it be allowed to challenge the relevancy of defense
evidence before, rather than after, the evidence was presented in open court so that CIA officers and their
stations would not be revealed. But cf.United States v. Kampiles, HCR 78-77 (N.D. Ind. Nov. 17, 1978),
in which a former CIA officer was convicted of espionage for selling top secret information to the Russians.
During the trial, the judge ordered procedures that would protect against wholesale disclosures of classified
material. Wash. Post, Nov. 15, 1978, § A, at 6, col.1.
75. The burden that the disclose-dismiss dilemma places on the Government's prosecutorial policy,
however, is substantially eased in those cases where the court orders protective procedures for the handling
of extremely sensitive classified material. See, e.g., United States v. Kampiles, HCR 78-77 (N.D. Ind., Nov.
17, 1978), discussed in note 47 supra. Lacovara, Resolving the 'Disclosureor Dismiss' Dilemma, NAT'L L.J.,
May 14, 1979, at 19, col. 1. Mr. Lacovara, a former member of the Watergate prosecution team, suggests
that procedures similar to those used in United States v. Ehrlichman, 376 F. Supp. 29 (D.D.C. 1974), affd,
546 F.2d 910 (D.C. Cir. 1976), cert. denied, 429 U.S. 1120 (1977), might be employed to avoid the disclosedismiss dilemma. In Ehrlichman, "[t]he special prosecutor's office determined that it was not necessary to
confront the 'disclose or dismiss' dilemma unless and until the trial court ruled that the sensitive
information was actually relevant." Lacovara, at 19, col. 3. The trial judge ultimately held that the sensitive
evidence involved "was not legally relevant." Id. col. 4. "Thus by contesting the demand for disclosure in
court, it became unnecessary to decide whether secrecy or prosecution should take priority." Id.
76. See notes 17-20 & accompanying text supra.
77. Exec. Order No. 11,905, 41 Fed. Reg. 7703 (1976) explicitly provided the authority for the
Government to seek an injunction in situations where there is a "threatened unauthorized disclosure of
intelligence sources and methods by a person who has signed a secrecy agreement." With the supersession
of Exec. Order 11,905 by Exec. Order 12,036, 43 Fed. Reg. 3691 (1978), it would appear that the various
intelligence agencies will have to rely solely on the Marchetti precedent when seeking an injunction on
national security grounds. See United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S.
1063 (1972).
1979]
GOVERNMENT SECRECY AGREEMENTS
does prepublication review; 78 rather, the Government must put forward
sufficient evidence to convince a court that release of harmful classified
information is imminent, thereby warranting issuance of the injunction. 79 The
Government asserts, therefore, that prepublication review is the more
effective means to curtail the release of classified information. Because the
Government need not wait to establish sufficient grounds, as it would for an
injunction, it can ensure more definitely that no classified information will be
released without authorization. 80
2. The Public Employee's Interest
The countervailing interest implicated by prepublication review provisions
is the public employee's first amendment right of free speech. 8' Under the
78. Prepublication review has been deemed to function automatically-that is, without the requisite
evidentiary showing necessary for an injunction-only in the Fourth Circuit. See United States v. Snepp,
595 F.2d 926 (4th Cir. 1979), petition for cert. filed, (U.S. June 18, 1979) (No. 1871). This comment,
however, proposes that prepublication review is a prior restraint comparable to an injunction. See notes
100-01 & accompanying text infra. Consequently, the evidentiary showing required for injunctions also
should be applied to prepublication review agreements.
An interesting perspective on the interaction between prepublication review and injunctive relief can be
discerned from the recent situation in which a former CIA official, Jay Mullen, wrote a 7,000 word article
for OREGON MAGAZINE entitled I Was Idi Amin's Basketball Czar. See Wash. Post, Apr. 17, 1979, § A, at
15, col. 1. The article, a humorous account of how Mullen infiltrated Amin's regime by becoming coach of
the Ugandan national basketball team, was submitted voluntarily for prepublication review to the CIA.
The CIA subsequently ordered that a number of deletions be made from the article prior to its publication
for national security reasons. The editor agreed to 28 separate deletions, "but drew the line at the remaining
" Id. Although the Government considered seeking an injunction, it did not attempt to
16 words ....
enjoin the article's publication.
79. For the standard the Government must meet when seeking an injunction, see note 112 &
accompanying text infra.
80. This argument presupposes, however, that civil penalties imposed for breach of a prepublication
review agreement will sufficiently deter former employees from publishing without first submitting to
prepublication review. This assumption is questionable in light of the Fourth Circuit's reversal of a lower
court's finding of a fiduciary liability in United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition for
cert. filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871). For an analysis of the difficulties in
recovering damages for breach of contract absent fiduciary liability, see notes 45-49 & accompanying text
supra. Moreover, the imposition of civil penalties will not deter a former employee intent on committing
treason from revealing national secrets.
81. In United States v. Marchetti, 466 F.2d 1309, (4th Cir.), cert. denied, 409 U.S. 1063 (1972), the
court expressed the parameters of this right: "Thus Marchetti retains the right to speak and write about the
CIA and its operations, and to criticize it as any other citizen may, but he may not disclose classified
information .... " 466 F.2d at 1317. In Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970), a civilian
employee was permanently excluded from the military base where she was working because she was caught
entering the base with 50 pounds of anti-Vietnam literature. The court held that this expulsion from the
post and the concomitant loss of her civilian employment violated her rights of free speech and association
under the first amendment. The court defined the employee's rights:
A citizen's right to engage in protected expression or debate is substantially unaffected by the
fact that he is also an employee of the government and, as a general rule, he cannot be
deprived of his employment merely because he exercises those rights. This is so because
dismissal from government employment, like criminal sanctions or damages, may inhibit the
propensity of a citizen to exercise his right to freedom of speech and association.
Id. at 749 (citation omitted).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
review provisions, an employee is forced to submit to the agency for
prepublication approval any information learned through his employment,
regardless of its classification.8 2 As a result, prepublication review provisions
have a chilling effect on the employee's exercise of first amendment rights,
particularly when the employee is attempting to expose mismanagement or
corruption based on information acquired during his employment at the
agency in question. 83 Because they may inhibit a former employee from even
criticizing past or present policies of the agency, prepublication review
provisions infringe upon not only the employee's first amendment rights, but
also the public's right to receive information concerning the operations of
84
government.
The indiscriminate sweep of such provisions that require employees to
submit even unclassified information for prepublication review is unreasonable because the government cannot show that release of non-classified
information will cause demonstrable harm to its national security interest.8 5
Absent a showing of harmful effect to an important governmental interest,
the Supreme Court should not uphold as reasonable a contract that curtails a
first amendment freedom.86 Moreover, prepublication review provisions may
82. See notes 22-24 & accompanying text supra.
83. Since the focus of this comment is on former, rather than current, employees, see note 11 supra,
these employees should not be confused with those employees labeled "whistle blowers." Whistle blowers,
by definition, are current "government employees who, at some risk of reprisal, step out of the bureaucratic
shadows and tell all-usually to Congress or the press-concerning corruption, mismanagement and other
forms of misbehavior in the agencies they work for." Greenfield, Blowing the Whistle, NEWSWEEK, Sept.
25, 1978, at 112; see STAFF OF SENATE COMM. ON GOVERNMENTAL AFFAIRS, 95TH CONG., 2D SESS.,
WHISTLEBLOWERS: REPORT ON FEDERAL EMPLOYEES WHO DISCLOSE ACTS OF GOVERNMENTAL
WASTE, ABUSE, AND CORRUPTION (Comm. Print 1978).
84. The Court has noted that the primary function of the first amendment is to ensure "the widest
possible dissemination of information," Associated Press v. United States, 326 U.S. 1, 20 (1945), and the
"unfettered interchange of ideas," Roth v. United States, 354 U.S. 476, 484 (1957), concerning "all issues
about which information is needed or appropriate to enable the members of society to cope with the
exigencies of their period," Thornhill v. Alabama, 310 U.S. 88, 102 (1940). See also Linmark Assocs., Inc.
Township of Willingboro, 431 U.S. 85, 96 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 757 (1976); Garrison v. Louisiana, 379 U.S. 64, 75 (1964);
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
As the court of appeals stated in Kiiskila v. Nichols: "To protect society's interest in uninhibited and
robust debate the first amendment demands that government be prohibited from inhibiting or suppressing
speech by indirection through discharge of a government employee when the same objective could not be
constitutionally achieved by criminal sanctions or other direct means." 433 F.2d 745, 749 (7th Cir. 1970).
Similarly, in United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), the court noted that "[t]he 'right to
know' is in a period of gestation. I think that the people will increasingly insist upon knowing what their
government is doing and that, because this knowledge is vital to government by the people, the 'right to
know' will grow." Id. at 1318-19 (Craven, J., concurring). See generally Hastie, Free Speech: Contrasting
Constitutional Conceptsand Their Consequences,9 HARV. C.R.-C.L. L. REV. 428 (1974); Symposium-The
First Amendment and the Right to Know, 1976 WASH. U.L.Q. 1.
85. That prepublication review provisions are not used by the majority of intelligence organizations
strongly indicates that they are not crucial to national security. See note 21 & accompanying text supra. In
fact, even the CIA, which is the first organization ever to seek enforcement of such provisions, has not used
these clauses in most of its secrecy contracts. See note 23 supra.
86. In the "loyalty oath" cases, see notes 60-65 & accompanying text supra, the Supreme Court held
1979]
GOVERNMENT SECRECY AGREEMENTS
be overly broad, and therefore constitutionally deficient, because they restrain
disclosure of classified information by restricting the release of all information.8 7 Thus, the unclassified nature of the material that is being indiscriminately restrained tips the balance heavily in favor of the public employee's
first amendment interests.8 8 The unreasonableness of prepublication review
provisions is further evidenced by the broad applicability of these provisions
to former, as well as current, employees.8 9 Assuming arguendo that some
distinction can be drawn between the constitutional rights afforded public
employees and those of private citizens, a question still remains whether
prepublication review provisions are enforceable in perpetuity. If, for example, a former public employee who had signed a contract containing a
prepublication review provision wanted to question publicly an agency policy
many years after that policy was enacted, he would be prohibited without
prior agency approval. Such a prohibition ignores the desensitizing effect of
the passage of time. 90
that those statutes were overly broad and hence unreasonable because government employment would be
lost for any form of membership in the Communist Party, regardless of whether that membership was
initiated with the "specific intent to further the illegal purposes of the Communist Party." Keyishian v.
Board of Regents, 385 U.S. 589, 607 (1967) (citing Eltbrandt v. Russell, 384 U.S. 11, 15-16 (1966)); see
United States v. Robel, 389 U.S. 258, 265-66 (1967); Slochower v. Board of Higher Educ., 350 U.S. 551,
556 (1956).
87. The Court in United States v. Robel, 389 U.S. 258 (1967), struck down a statute which prohibited
Communists from working in defense plants, despite the Government's strong national security interest,
because the scope of the statute was not limited to knowing and active members of an organization whose
goal was the overthrow of the government. The statute, therefore, suffered from "the fatal defect of
overbreadth because it seeks to bar employment both for association which may be proscribed and for
association which may not be proscribed consistently with First Amendment rights." Id. at 266.
88. In addition, the efficacy of enforcing these provisions has been called into question by the actions of
several former employees who have used the artifice of co-authorship to avoid having their manuscripts
subjected to prepublication review. For example, the FBI agent in charge of the Patty Hearst investigation,
after retiring in 1977, participated in a series of interviews conducted by a television scriptwriter. The result
of this collaboration was a television movie dealing with the FBI's manhunt for Hearst. While the former
employee was paid for his interviews, he was not given any writing credit. This former employee claimed,
therefore, that because he was not the actual author, the television script did not have to be submitted for
prepublication review. Shearer, Intelligence Report, Get Patty Hearst, Wash. Post, Oct. 29, 1978, Parade
(Magazine), at 7. See P. AGEE & L. WOLF supra note 2, which was co-authored by a former CIA agent and
was not subjected to prepublication review, despite the fact that it identified over 700 people as CIA agents.
Wash. Post, Sept. 25, 1978, § A, at 1, col. 1. But see the DIA's secrecy agreement, which specifically
subjects such collaborative efforts to prepublication review, at note 22 supra.
89. See, e.g., United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W.
3826 (June 18, 1979)(No. 78-1871).
90. Furthermore, the very nature of these restrictions directly conflicts with the present administration's policy of open government. President Carter's Executive Order concerning the declassification of
information evinces the most recent expression of this policy. Exec. Order No. 12,065, 43 Fed. Reg. 28,949
(1978). In recognition of the "public's interest in access to Government information," the Executive Order
declares that "Idleclassification of classified information shall be given emphasis comparable to that
accorded classification." Id. at 28,955. Additionally, the Order provides limitations on the duration of
classification, as well as mandating procedures for the systematic review of classified information. Id. Thus,
prepublication review provisions that attempt to restrain public employees from releasing nonclassified
information, even years after they have left government service, appear to be in direct conflict with this
Executive Order. See generally Symposium-Openness in Government, 34 FED. B.J. 279 (1975).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
Although the Supreme Court has not explicitly ruled on the permissible
duration of these restrictions, it has held that the Government may not
unreasonably condition the terms of public employment, particularly when
those conditions infringe upon first amendment rights. 9' The Court has
showil that it will scrutinize the Government's interest to insure that there is a
danger of sufficient gravity and imminence to warrant the infringement of
first amendment rights, and to guarantee that only the narrowest means are
used to protect this interest. 92 The need for the sweeping protection afforded
by prepublication review provisions is unwarranted, therefore, in light of
existing sanctions that prohibit both current and former employees from
releasing classified information. 93 Further, when there is sufficient cause to
believe that an imminent threat of unauthorized disclosure of classified
information is present, the Government can seek an injunction against the
94
guilty employee.
3. Striking the Balance
When the first amendment reasonableness standard is applied to prepublication review provisions, the public employee's right of free speech far
outweighs the government's interest in safeguarding national security.
Prepublication review agreements are not only overly broad in scope because
they restrain unclassified as well as classified information, but they are also
unreasonable because they restrain in perpetuity. Moreover, these provisions
are particularly onerous in light of the less restrictive alternatives-criminal
and civil sanctions and injunctive relief-that already exist.
Use of the standard form agreement without prepublication review provisions does not gravely and imminently imperil the government's security
interest. In fact, although all intelligence agencies handle classified information, only three agencies protect the disclosure of such information by
requiring prepublication review. 95 Moreover, with the exception of the DIA,
the agencies that use these provisions have not done so consistently. Thus, no
compelling governmental interest is being protected that would mandate the
surrender of the employee's first amendment rights. Because prepublication
review provisions found in certain secrecy agreements fail to meet the
standard of reasonableness enunciated by the Supreme Court, they should be
held constitutionally invalid.
91.
92.
93.
94.
95.
See
Id.
See
See
See
notes 52-66 & accompanying text supra.
note 72 & accompanying text supra.
notes 76-77 & accompanying text supra.
note 10 supra.
1979]
GOVERNMENT SECRECY AGREEMENTS
417
III. THE DOCTRINE OF PRIOR RESTRAINT
Secrecy agreements that contain prepublication review provisions also
require careful scrutiny under the higher first amendment standard of the
prior restraint doctrine. The doctrine is designed to protect against any
96
attempt by the government to restrict expression in advance of publication.
Because secrecy agreements that contain prepublication review provisions
permit a government agency to prevent dissemination of information prior to
publication, they are constitutionally suspect.
Protection by the doctrine against prior restraints, however, is not
absolutely unlimited; in "exceptional cases," the Supreme Court may find
that such restraints are constitutionally permissible. Although the Court
delimited three "exceptional cases"-national security, sedition, and obscenity-in which it would sanction a prior restraint, 97 the government nevertheless "carries a heavy burden of showing justification for the imposition of such
a restraint" 98 because "[a]ny system of prior restraint comes to this Court
bearing a heavy presumption against its constitutional validity." 99
96. The Supreme Court repeatedly has held that the first amendment "afford[s] special protection
against orders that prohibit the publication or broadcast of particular information or commentary." E.g.,
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556 (1976); Carrol v. President of Princess Anne, 393 U.S.
175, 181 (1968) ("prior restraint upon speech suppresses the precise freedom which the First Amendment
sought to protect against abridgement"); Grosjean v. American Press Co., 247 U.S. 233, 249 (1937) (first
amendment precludes states "from adopting any form of previous restraint upon printed publications").
The rationale for providing citizens with special protection against prior restraints was explained by
Blackstone more than 200 years ago:
The liberty of the press is indeed essential to the nature of a free state; but this consists in
laying no previous restraints upon publications, and not in freedom from censure for criminal
matter when published. Every freeman has an undoubted right to lay what sentiments he
pleases before the public, to forbid this is to destroy freedom of the press; but if he publishes
what is improper, mischievous, or illegal, he must take the consequences of his own temerity
I . . . Thus, the will of individuals is still left free; the abuse only of that free will is the object
of legal punishment.
4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (1765); see T. EMERSON, THE
SYSTEM OF FREEDOM OF EXPRESSION 506 (1970).
97. Near v. Minnesota, 283 U.S. 697 (1931). In dictum, Chief Justice Hughes gave three illustrations of
"exceptional cases":
[] When a nation is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight and that no
Court could regard them as protected by any constitutional right. No one would question but
that a government might prevent actual obstruction to its recruiting service or the publication
of the sailing dates of transports or the number and location of troops. [2] On similar grounds,
the primary requirements of decency may be enforced against obscene publications. [3] The
security of the community life may be protected against incitements to acts of violence and the
overthrow by force of orderly government. The constitutional guaranty of free speech does
not "protect a man from an injunction against uttering words that may have all the effect of
force."
Id. at 716 (citations omitted).
98. New York Times Co. v. United States, 403 U.S. 713,714 (1971) (per curiam) (quoting Organization
for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).
99. Id. (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
To determine the constitutionality of prepublication review provisions
under this doctrine of prior restraint, a two-tiered analysis is required. First,
prepublication review requirements must be analyzed to ascertain whether
they constitute a prior restraint. Second, if prepublication review provisions
are a form of prior restraint, the determination must be made as to whether
they fall within one of the "exceptional cases."
A. PREPUBLICATION REVIEW AS A PRIOR RESTRAINT
Professor Thomas Emerson, a leading authority on the doctrine of prior
restraint, has described the "classic form of prior restraint" as a "system that
prohibit[s] publication without advance approval of an executive official."' 100
Prepublication review agreements require the employee, prior to publication,
to submit to the agency for censorship of classified information all material
that relates to the agency.10 1 Because these agreements permit a government
agency to restrain information prior to its publication, they appear to be a
classic form of prior restraint.10 2
Prior restraints have always been considered more constitutionally offensive than the criminal and civil sanctions that can be imposed after the release
of harmful classified information. 0 3 The Court in Southeastern Promotion,
Ltd. v. Conrad'0 4 described why greater first amendment protection is
accorded against prior restraints than against subsequent punishments:
[A] free society prefers to punish the few who abuse rights of
speech after they break the law than to throttle them and all others
beforehand. It is always difficult to know in advance what an
100. T. EMERSON, supra note 96, at 505. See also Emerson, The Doctrine of PriorRestraint, 20 LAW
CONTEMP. PROB. 648 (1955) [hereinafter cited as Prior Restraint].
101. See note 22 & accompanying text supra.
102. Although the doctrine of prior restraint is often associated with prior judicial injunctions on the
press, the range of the doctrine should not be underestimated. Indeed, the broad parameters of the doctrine
have led Professor Emerson to write that "[d]espite an ancient and celebrated history, the doctrine of prior
restraint remains today curiously confused and unformed." PriorRestraint, supra note 100, at 649. The
doctrine has been employed to strike down other schemes of governmental censorship of films, see, e.g.,
Freedman v. Maryland, 380 U.S. 51 (1965); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); books,
see, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); and plays, see, e.g., Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546 (1975); and to invalidate discriminatory taxes on the press, see, e.g., Grosjean
v. American Press Co., 397 U.S. 233, 250 (1936) (tax on receipts of certain newspapers invalid because it
was "a deliberate and calculated device in the guise of a tax" to punish critics of Huey Long).
Prepublication review agreements, therefore, appear to fit easily within the confines of the doctrine.
103. As Professor Emerson explained:
A system of prior restraint is in many ways more inhibiting than a system of subsequent
punishment: It is likely to bring under government scrutiny a far wider range of expression; it
shuts off communication before it takes place; suppression by a stroke of the pen is more likely
to be applied than suppression through a criminal process; the procedures do not require
attention to the safeguards of the criminal process; the system allows less opportunity for
public appraisal and criticism; the dynamics of the system drive toward excesses, as the
history of all censorship shows. T. Emerson, supra note 96, at 506.
104. 420 U.S. 546 (1975).
19791
GOVERNMENT SECRECY AGREEMENTS
individual will say, and the line between legitimate and illegitimate
speech is often so finely drawn that the risks of freewheeling
05
censorship are formidable.
Particularly in the case of prepublication review agreements, the governmental restriction comes prior to publication. Hence, these agreements establish a
system of governmental prior restraints-restraints that are not viewed
favorably by the Court.
B. THE NATIONAL SECURITY "EXCEPTION"-THE NEW YORK TIMES
STANDARD
Because prior restraints are not unconstitutional per se, it is necessary to
determine whether prepublication review provisions fall within one of the
three "exceptional cases" in which the Court will uphold a prior restraint.
1 06
The most likely exception, if any, for these provisions is national security.
In New York Times Co. v. United States,107 the Supreme Court enunciated the
standard to be applied to government attempts to qualify a prior restraint as
an exception for national security purposes. In New York Times, the
Government sought to restrain publication of the Pentagon Papers, alleging
that publication would cause grave damage to national security. The Court,
however, refused to enjoin the publication, even temporarily, holding that the
Government had not met the "heavy burden of showing justification for the
imposition of such a restraint."1 08
Although a majority of the Court was convinced that "revelation of these
documents [would] do substantial damage to public interests,"' 109 no Justice
could say "that disclosure of any of them [would] surely result in direct,
immediate, and irreparable damage to our Nation or its people."110 According
to Justice Brennan:
The entire thrust of Government's claim throughout these cases
has been that publication of the material sought to be enjoined
"could," or "might," or "may" prejudice the national interest in
various ways. But the First Amendment tolerates absolutely no
prior judicial restraints of the press predicated upon surmise or
conjecture that untoward consequences may result."'
Thus, the New York Times standard dictates that when the Government seeks
to place a prior restraint on speech because of its potential impact on
"4national security," such restraints will be granted only on an adequate
105. Id. at 559.
106. See exception [1] in note 97 supra.
107. 403 U.S. 713 (1971) (per curiam).
108. Id. at 714; see generally Henkin, supra note 68.
109. 403 U.S. at 731 (White, J., concurring).
110. Id. at 730 (Stewart, J., concurring).
111. Id. at 725-26 (Brennan, J., concurring) (footnote omitted).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
showing that publication would surely and immediately result in grave
12
damage to the nation.
Under this imminent threat standard, the Government has not made an
adequate showing of harm to national security sufficient to justify prepublication review. The Government's national security justification for the use of
prepublication review provisions can be discerned from its arguments in
Snepp.113 In that case, the Government maintained that prepublication review
was essential, even if it was subsequently determined that the writing
contained only unclassified material, because only an authorized CIA official
can make a classification determination. 114 According to the Government,
review of a manuscript provides a mechanism by which the CIA can assure
foreign intelligence sources that the secrets they provide will remain confidential.1 5 The Government contends, therefore, that the CIA has a
and
legitimate interest in maintaining a reputation for internal discipline
'" 16
confidence."
"world-wide
secure
to
order
in
protection of sources
The argument that publication of unclassified materials without prior
agency review will result in legitimately classified secrets being disclosed does
not sufficiently meet the requirement of immediate harm that the Supreme
Court has indicated is needed to justify imposition of a prior restraint.' "7
Indeed, the difficulty with the Government's contention is that the perceived
threat to national security is speculative rather than a matter of substantial
8
certainty. "1
112. But see United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972),
discussed in notes 15-20 & accompanying text supra. The court of appeals, which upheld an injunction
because publication would have been in violation of the standard form contract, noted that the government
has the right to prevent disclosure of information that "may reasonably be thought to be inconsistent with
the national interest." 466 F.2d at 1315. New York Times established, however, that only upon a showing
that disclosure will "surely result in direct, immediate, and irreparable" harm to the nation can the
imposition of prior restraints be justified. 403 U.S. at 730. Moreover, the factual predicate for the judicial
restraint in Marchetti is not present in the context of prepublication review contracts. See notes 37-42 &
accompanying text supra. Consequently, Marchetti cannot be used to support prepublication review
contracts as prior restraints.
113. See notes 25-50 & accompanying text supra.
114. See Brief for Appellee at 22, United States v. Snepp, 465 F. Supp. 176 (E.D. Va. 1978), affd in
part, rev'd in part, 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3826 (U.S. June 18,
1979) (No. 78-1871).
115. Id. at 16-18. But see note 47 supra.
116. Id. at 17. But see note 47 supra.
117. New York Times Co. v. United States, 403 U.S. 713, 730 (1971) (Stewart, J., concurring).
118. Even though the case did not involve a prior restraint, the Supreme Court recognized that a
speculative threat or danger is insufficient to overcome first amendment rights in Tinker v. Des Moines
Community School Dist., 393 U.S. 503 (1969). In Tinker, the school prohibited students from wearing
black armbands in protest of the Vietnam war, justifying its ban on the fear that the protest would interfere
with education and would cause skirmishes among students. The Court held that the prohibition violated
first amendment rights. It said:
The district court concluded that the action of the school authorities was reasonable because
it was based upon their fear of a disturbance from wearing of armbands. But, in our system,
1979]
GOVERNMENT SECRECY AGREEMENTS
The Government, in fact, seems to be presuming that harm will result
merely because the publication is written by a former employee. Such a
presumption, however, is not sufficient justification for the imposition of a
prior restraint. The national security exception should be construed narrowly' 19 so as to allow prior restraints only when there is "governmental
allegation and proof that publication [will] inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of
a transport already at sea . . . In no event may mere conclusions be
sufficient."'120 Thus, the Government has not carried the burden of demonstrating that, absent a system of prior review, harm of the requisite magnitude
or immediacy will occur.
Even though the information restrained by the majority of prepublication
review provisions will not meet the New York Times standard, the information nevertheless will be withheld from the public while the agency reviews
the employee's manuscript. 21 Moreover, in those instances where there is a
dispute between author and agency over the deletion of material before
publication, the public will be further deprived of information while the
dispute winds its way through the courts. Yet the Supreme Court has stated
that restraints "of even a day or two" will not be constitutionally acceptable
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to
freedom of expression.
Id. at 508. Cf.Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563 (1976) (impact of pretrial prejudicial
publicity on defendant's fair trial right too "speculative" to justify prior restraint on publication).
119. According to Justice Brennan:
Our cases. . . have indicated that there is a single, extremely narrow class of cases in which
the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus
far indicated that such cases may arise only when the Nation "is at war," during which times
-[n]o one would question but that a government might prevent actual obstruction to its
recruiting service or the publications of the sailing dates of transports or the number and
location of troops" . . . .
New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971) (Brennan, J., concurring) (citations
omitted).
120. Id.
121. Prepublication review contracts are particularly onerous because they contain no time period
during which the agency must complete the review process. Thus, the agency can prolong the review
process at will, while the author is without contractual remedy. Although some of the agencies have
guidelines defining the period of review, such policy statements are not binding. The CIA, for example, has
stated: "[t]he Board will attempt to complete its review of manuscripts within 30 days." Non-Official
Publication by Employees and Former Employees HN 7-21 (Mar. 1, 1977) (CIA Administrative Internal
Notice). Even if the CIA's Publication Review Board can comply with these guidelines, the author will not
necessarily be deprived of his manuscript for "only" 30 days. All manuscripts are submitted to the CIA's
Office of General Counsel before they are distributed to the Board. Id. Moreover, if the author appeals the
Board's decision, there arguably will be a longer delay while he exhausts the agency appellate process.
Communications, therefore, can be restrained for a considerable period of time, thereby permitting the
government to destroy the immediacy of the intended speech. See note 125 & accompanying text infra. Cf
United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), in which the
court imposed a 30-day time limit upon the CIA's review of a manuscript written by a former employee.
The CIA's right to review the manuscript, however, was not founded on a prepublication review contract;
rather, it resulted from a court-ordered injunction. Thus, the time constraint is not binding on the agency
review process under prepublication contracts. See notes 37-42 & accompanying text supra.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
when applied to" 'political' speech in which the element of timeliness may be
important."' 122 The speech restrained by prepublication review agreements, if
it does not constitute properly classified information, is such political speech.
In McGehee v. United States,1 23 for example, a former CIA official has filed
suit for declaratory relief to prevent the agency from blocking publication of a
partially completed book dealing in part with alleged intelligence failures in
Asia.' 24 The author maintains that his book will "contribute to the current
public debate over the performance of the CIA with respect to producing and
analyzing intelligence concerning recent events in Iran."125 If McGehee's
122. Carroll v. President of Princess Anne, 393 U.S. 175, 182 (1968). As Chief Justice Burger observed
in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976): "The Court's conclusion in New York Times
v. United States suggested that the burden on the Government is not reduced by the temporary nature of a
restraint." But see United States v. Progressive, 467 F. Supp. 990 (W.D. Wis. 1979), appeal docketed, No.
79-1428 (7th Cir. Apr. 24, 1979). In Progressive, the Government sought an injunction against the
magazine to halt publication of an article The H-Bomb Secret: How We Got It, Why We're Telling It. The
Government argued that although much of the information in the article was not classified, the injunction
should issue because the article synthesized classified and unclassified information in a way that
endangered national security. The defendants contended that the data used was in the "public domain and
readily available to any diligent seeker." Id. at 993. They argued that the national security exception to
prior restraints is narrow and should not be sustained unless the nation is at war or the threat is not merely
speculative. Id. at 991. The district court judge, however, issued the injunction, recognizing that "few
things, save grave national security concerns, are sufficient to override First Amendment interests." Id. at
992. The court said that although the article was not a "do-it- yourself" kit for building a hydrogen bomb,
could provide other nations with necessary information and, therefore, increase the dangers of nuclear
proliferation. Examining the defendants' first amendment rights in light of the threat of "thermonuclear
annihilation," the court concluded that the Government had met its heavy burden for issuance of a prior
restraint. Id. at 996. In so concluding, the court distinguished the New York Times case, stating:
This case is different in several important respects. In the first place, the study involved in the
New York Times case contained historical data relating to events some three to twenty years
previously. Secondly, the Supreme Court agreed with the lower court that no cogent reasons
were advanced by the government as to why the article affected national security except that
publication might cause some embarrassment to the United States.
Id. at 994. This last statement indicates that the prior restraint rationale in Progressive, if upheld, should
not be used to justify prepublication review in cases like Snepp. In Snepp, the publication involved past CIA
practices with regard to the Vietnam war. In addition, the Government's asserted interests in Snepp were
the dangers to the CIA's confidentiality and reputation. The Snepp case, therefore, is more analogous to the
New York Times case than to Progressive.See Brief of Amicus Curiaeat 14-15, The Reporters Committee
for Freedom of the Press, United States v. Snepp, 595 F.2d 926 (4th Cir. 1979), petition for cert. filed, 47
U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871); notes 113-19 & accompanying text supra. See also note
14 infra.
The defendant magazine in Progressive sought a writ of mandamus to the Court of Appeals for the
Seventh Circuit ordering it to expedite appellate review of the district court order restraining publication of
the article. Morland v. Sprecher, 47 U.S.L.W. 3838 (U.S. July 2, 1979) (No. 78-1904) (per curiam) (White
& Brennan, J.J., dissenting). The Court denied the motion because the petitioners delayed in filing a
meaningful motion for expedited appellate review. The Court noted that the preliminary injunction was
entered on March 26, 1979, but that "petitioners waited until June 15, 1979, to file a meaningful motion for
expedited review before the Court of Appeal." Id. The Court, therefore, ruled that petitioners "forebore
any right to expedition that the Constitution might otherwise have afforded them." Id.
123. Complaint, McGehee v. Turner, No. 78-2407 (D.D.C. Dec. 22, 1978).
124. Id. at 3; see note 50 supra. See also the discussion of Snepp in notes 25-49 & accompanying text
supra.
125. Complaint at 5. The nature of the information restrained is also important because "[tihe damage
1979]
GOVERNMENT SECRECY AGREEMENTS
allegations are correct, restraints upon this type of political speech will
undercut the basic principle underlying the presumption against the constitutionality of prior restraints-government censorship of legitimate public
26
debate.1
In short, the Government's justifications for prior review of employee
publications are too conjectural to meet the heavy burden required for the
imposition of prior restraints on publication. Consequently, prepublication
review agreements are unconstitutional prior restraints.
IV. NECESSITY FOR EXPRESS PRESIDENTIAL OR CONGRESSIONAL
AUTHORITY FOR PREPUBLICATION REVIEW AGREEMENTS
In conjunction with the first amendment objections, there is perhaps an
even more fundamental defect in prepublication review provisions-the lack
of express legal authority for the creation of these provisions. A government
agency cannot develop regulations that restrict employees' fundamental
constitutional rights unless Congress or the President has granted them the
explicit authority. 127 In Greene v. McElroy, 128 for example, the Court struck
down Defense Department regulations that permitted the department to
dismiss employees without having granted them an opportunity to confront
and cross-examine the witnesses against them. The Court held that it could
not approve the denial of a fundamental due process right unless Congress or
the President specifically authorized the denial. 129 Since the public employee's
can be particularly great when the prior restraint falls upon communication of news and commentary or
current events." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). There can be no question,
therefore, that the restraint in McGehee is causing great damage by depriving the public of information that
it needs in order to scrutinize the conduct of government affairs and officials. Of course, if the government
could demonstrate to a court that the release of information in McGehee would "surely result in direct,
immediate and irreparable damage" to the country then McGehee would be denied declaratory relief.
Indeed, the constitutional invalidation of prepublication review agreements would not bar prior restraints
in "exceptional" circumstances, but would require that the government once again meet the "heavy
burden" traditionally imposed on such restraints. See notes 97-99, 122 & accompanying text supra.
126. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556-61 (1976).
127. Hampton v. Mow Sun Wong, 426 U.S. 98 (1976) (congressional or presidential authorization
required for agency restriction of aliens' rights); Cafeteria & Restaurant Workers Union v. McElroy, 367
U.S. 886 (1961) (upholding naval regulations that barred civilian cook from job at naval installation after
her security clearance was revoked without explanation, because regulations had been "expressly
approved" by the President); Greene v. McElroy, 360 U.S. 474 (1959).
128. 360 U.S. 474 (1959).
129. The Court stated:
[I]t must be made clear that the President or Congress within their respective constitutional
powers, specifically has decided that the imposed procedures are necessary and warranted
and has authorized their use. . . .Such decisions cannot be assumed by acquiescence or nonaction . . . . They must be made explicitly not only to assure that individuals are not
deprived of cherished rights under procedures not actually authorized. . . but also because
explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 28:395
first amendment right to communicate unclassified information without the
prior restraint mandated by prepublication review provisions is as fundamental a constitutional value as due process, it should require specific congressional or presidential authorization. In the case of prepublication review
agreements, however, there is no indication that either the President or
Congress has explicitly authorized their use. 30 Although authority for use of
standard form secrecy agreements may arguably be derived from provisions
in the National Security Act of 1947, one provision of which charges the
Director of the CIA with the responsibility for "protecting intelligence
sources and methods from unauthorized disclosure," 131 such enabling statutes
32 In
do not constitute authorization for prepublication review agreements.
Greene, the Government relied on similar enabling statutes authorizing the
protection of government information. The Court held, however, that the
Government's actions were unjustified because the statutes did not explicitly
explicit action by lawmakers, decisions of great constitutional import and effect would be
relegated by default to administrators who, under our system of government, are not endowed
with authority to decide them.
Id. at 507 (citations omitted).
130. See notes 131-34 & accompanying text infra.
131. 50 U.S.C. § 403(d)(3) (1970).
132. The Government, however, maintains that § 403(d)(3) provides the requisite explicit congressional
authority for prepublication review secrecy agreements. Brief for Appellee at 29-30, United States v.
Snepp, 456 F. Supp. 176 (E.D. Va. 1978), offd in part, rev'd in part, 595 F.2d 926 (4th Cir. 1979), petition
for cert.filed, 47 U.S.L.W. 3826 (U.S. June 18, 1979) (No. 78-1871). The Government seeks to support its
view that these agreements are statutorily authorized by relying on United States v. Marchetti, 466 F.2d
1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), which stated:
Congress has imposed upon the Director of Central Intelligence the responsibility for
protecting intelligence sources and methods. 50 U.S.C. § 403(d)(3). In attempting to comply
with this duty, the Agency requires its employees as a condition of employment to sign a
secrecy agreement, and such agreements are entirely appropriate to a program in implementation of the congressional direction of secrecy.
466 F.2d at 1316.
These contentions, however, are without merit. First, the language of § 403(d)(3) falls far short of the
explicit authorization that the Court requires for such procedures. Second, the Government's reliance on
Marchettiis inapposite, because the instant argument was not pressed in Marchetti. See Brief for Appellant,
United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972). Moreover,
Marchetti's contract was the standard type and therefore contained no prepublication review provision.
Rather, it was his continuing disclosures of classified information that triggered the director's responsibility to prevent further disclosures. See notes 18-20 & accompanying text supra. These same considerations
apply equally to the FBI and the DIA, two other agencies that utilize prepublication review contracts,
because they also rely primarily on § 403(d)(3) as the source of authority for these agreements. See Letters
of Response of the DIA and the FBI (Apr. 11, 1978) to a questionnaire from Rep. Don Edwards' office
(Mar. 27, 1978) requesting "to know the source of authority" for their secrecy agreements. (unpublished
correspondence located in Rep. Don Edwards' office files.) See also United States v. Progressive, 467 F.
Supp. 990 (W.D. Wis. 1979), appeal docketed, No. 79-1428 (7th Cir. Apr. 24, 1979), in which the
Government based its request for injunction on 42 U.S.C. §§ 2274, 2280 (1976). Section 2274(a) provides
that anyone who possesses or disseminates restricted materials "with the intent to injure the United States
or with intent to secure an advantage to any foreign nation," 42 U.S.C. § 2274(a) (1976), can be subject to
life imprisonment and a fine. The existence of these statutes represents another reason why the prior
restraint in the Progressive case is distinguishable from prepublication review procedures. See note 122
supra.
1979]
GOVERNMENT SECRECY AGREEMENTS
authorize the challenged procedures. The Court in Greene clearly stated:
"Although these statutes make it apparent that Congress recognizes the
existence of military secrets, they hardly constitute an authorization to create
an elaborate clearance program which embodies procedures traditionally
believed to be inadequate to protect affected persons." 133 Similarly, in the New
York Times case, which involved classified information, Justices White and
Stewart joined in vacating the injunctions because there was no "express and
appropriately limited congressional authorization for prior restraints in
134
circumstances such as these."'
The National Security Act, therefore, does not provide the explicit
delegation of authority necessary to justify either the existence of the CIA's
prepublication review provision or its enforcement through suits for breach of
contractual and fiduciary duties. These constitutionally questionable provisions that impinge so severely upon the employees' first amendment rights
have been promulgated without express authority from either the President or
Congress. Consequently, prepublication review provisions, which are supported solely by the authority of the internal policies of the agencies that use
these contracts, should be deemed unenforceable.
V. CONCLUSION
The courts presently are confronting a new episode in the perennial conflict
between the government's need for secrecy and the citizen's first amendment
rights. To better secure the nation's secrets, the Federal Government has
attempted to add the novel device of prepublication review agreements to its
arsenal of legal weapons. Apparently, the Government deemed such agreements necessary to halt the increasing number of expos6s by former intelligence officers about their agencies' policies.
Although the Government has a legitimate interest in protecting national
security by restricting unauthorized disclosures of classified information by
former employees, the means it employs nevertheless must comply with legal
and constitutional standards. Prepublication review agreements do not
comport with constitutional imperatives because their conditions are unreasonably overbroad, therefore violating the employee's first amendment
rights of free speech. Moreover, the Court traditionally has expressed hostility
toward the Government's use of prior restraints, sustaining such restraints
only in circumstances that pose an imminent threat to the nation's security.
Absent such compelling justification, governmental prior restraints such as
prepublication review agreements impede the public employee's fundamental
133. Greene v. McElroy, 360 U.S. 474, 504 (1959).
134. New York Times Co. v. United States, 403 U.S. 713, 713 (1971); see id. at 741-48 (Marshall, J.,
concurring).
426
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[Vol. 28:395
first amendment rights. Furthermore, the Government lacks the explicit legal
authority to enforce such agreements. In resolving the conflict between
government secrecy and the free flow of information, therefore, the courts
should hold these contracts to be unenforceable and in violation of first
amendment standards.
JAMES PETER RAU