Held: A former employee of the Central Intelligence
Agency, who had agreed not to divulge classified information
without authorization and not to publish any information relating
to the Agency without prepublication clearance, breached a
fiduciary obligation when he published a book about certain Agency
activities without submitting his manuscript for prepublication
review. The proceeds of his breach are impressed with a
constructive trust for the benefit of the Government.
Certiorari granted; 595 F.2d 926, reversed in part and
remanded.
PER CURIAM.
In No. 78-1871, Frank W. Snepp III seeks review of a judgment
enforcing an agreement that he signed when he accepted employment
with the Central Intelligence Agency (CIA). He also contends that
punitive damages are an inappropriate remedy for the breach of his
promise to submit all writings about the Agency for prepublication
review. In No. 79-265, the United States conditionally
cross-petitions from a judgment refusing to find that profits
attributable to Snepp's breach.are impressed with a constructive
trust. We grant the petitions for certiorari in order to correct
the judgment from which both parties seek relief.
I
Based on his experiences as a CIA agent, Snepp published a book
about certain CIA activities in South Vietnam. Snepp published the
account without submitting it to the Agency for prepublication
review. As an express condition of his employment with the CIA in
1968, however, Snepp had
Page 444 U. S. 508
executed an agreement promising that he would
"not . . . publish . . . any information or material relating to
the Agency, its activities or intelligence activities generally,
either during or after the term of [his] employment . . . without
specific prior approval by the Agency."
App. to Pet. for Cert. in No. 78-1871, p. 59a. The promise was
an integral part of Snepp's concurrent undertaking "not to disclose
any classified information relating to the Agency without proper
authorization."
Id. at 58a. [
Footnote 1] Thus, Snepp had pledged not to divulge
classified information and not to publish any information without
prepublication clearance. The Government brought this suit to
enforce Snepp's agreement. It sought a declaration that Snepp had
breached the contract, an injunction requiring Snepp to submit
future writings for prepublication review, and an order imposing a
constructive trust for the Government's benefit on all profits that
Snepp might earn from publishing the book in violation of his
fiduciary obligations to the Agency. [
Footnote 2]
The District Court found that Snepp had "willfully, deliberately
and surreptitiously breached his position of trust with the CIA and
the [1968] secrecy agreement" by publishing his book without
submitting it for prepublication review.
456 F.
Supp. 176, 179 (ED Va.1978). The court also found that Snepp
deliberately misled CIA officials into believing that he would
submit the book for prepublication clearance. Finally, the court
determined as a fact that publication of the book had "caused the
United States irreparable harm and loss."
Page 444 U. S. 509
Id. at 180. he District Court therefore enjoined future
breaches of Snepp's agreement and imposed a constructive trust on
Snepp's profits.
The Court of Appeals accepted the findings of the District Court
and agreed that Snepp had breached a valid contract. [
Footnote 3] It specifically affirmed the
finding that Snepp's failure to submit his manuscript for
prepublication review had inflicted "irreparable harm" on
intelligence activities vital to our national security. 595 F.2d
926, 935 (CA4 1979). Thus, the court upheld the injunction against
future violations of Snepp's prepublication obligation. The court,
however, concluded that the record did not support imposition of a
constructive trust. The conclusion rested on the court's
perception
Page 444 U. S. 510
that Snepp had a First Amendment right to publish unclassified
information and the Government's concession -- for the purposes of
this litigation -- that Snepp's book divulged no classified
intelligence.
Id. at 935-936. [
Footnote 4] In other words, the court thought that Snepp's
fiduciary obligation extended only to preserving the
confidentiality of classified material. It therefore limited
recovery to nominal damages and to the possibility of punitive
damages if the Government -- in a jury trial -- could prove
tortious conduct.
Judge Hoffman, sitting by designation, dissented from the
refusal to find a constructive trust. The 1968 agreement, he wrote,
"was no ordinary contract; it gave life to a fiduciary relationship
and invested in Snepp the trust of the CIA."
Id. at 938.
Prepublication clearance was part of Snepp's undertaking to protect
confidences associated with his trust. Punitive damages, Judge
Hoffman argued, were both a speculative and inappropriate remedy
for Snepp's breach. We agree with Judge Hoffman that Snepp breached
a fiduciary obligation and that the proceeds of his breach are
impressed with a constructive trust.
II
Snepp's employment with the CIA involved an extremely high
degree of trust. In the opening sentence of the agreement that he
signed, Snepp explicitly recognized that he was entering a trust
relationship. [
Footnote 5] The
trust agreement specifically
Page 444 U. S. 511
imposed the obligation not to publish any information relating
to the Agency without submitting the information for clearance.
Snepp stipulated at trial that -- after undertaking this obligation
-- he had been "assigned to various positions of trust" and that he
had been granted "frequent access to classified information,
including information regarding intelligence sources and methods."
456 F. Supp. at 178. [
Footnote
6] Snepp published his book about CIA activities on the basis
of this background and exposure. He deliberately and
surreptitiously violated his obligation to submit all material for
prepublication review. Thus, he exposed the classified information
with which he had been entrusted to the risk of disclosure.
Whether Snepp violated his trust does not depend upon whether
his book actually contained classified information. The Government
does not deny -- as a general principle -- Snepp's right to publish
unclassified information. Nor does it contend -- at this stage of
the litigation -- that Snepp's book contains classified material.
The Government simply claims that, in light of the special trust
reposed in him and the agreement that he signed, Snepp should have
given the CIA an opportunity to determine whether the material he
proposed to publish would compromise classified information or
sources. Neither of the Government's concessions undercuts its
claim that Snepp's failure to submit to prepublication review was a
breach of his trust.
Both the District Court and the Court of Appeals found that a
former intelligence agent's publication of unreviewed material
relating to intelligence activities can be detrimental
Page 444 U. S. 512
to vital national interests even if the published information is
unclassified. When a former agent relies on his own judgment about
what information is detrimental, he may reveal information that the
CIA -- with its broader understanding of what may expose classified
information and confidential sources -- could have identified as
harmful. In addition to receiving intelligence from domestically
based or controlled sources, the CIA obtains information from the
intelligence services of friendly nations [
Footnote 7] and from agents operating in foreign
countries. The continued availability of these foreign sources
depends upon the CIA's ability to guarantee the security of
information that might compromise them and even endanger the
personal safety of foreign agents.
Undisputed evidence in this case shows that a CIA agent's
violation of his obligation to submit writings about the Agency for
prepublication review impairs the CIA's ability to perform its
statutory duties. Admiral Turner, Director of the CIA, testified
without contradiction that Snepp's book and others like it have
seriously impaired the effectiveness of American intelligence
operations. He said:
"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
Page 444 U. S. 513
to you how many potential sources or liaison arrangements have
never germinated because people were unwilling to enter into
business with us."
456 F. Supp. at 179-180. [
Footnote 8] In view of this and other evidence in the
record, both the District Court and the Court of Appeals recognized
that Snepp's breach of his explicit obligation to submit his
material -- classified or not -- for prepublication clearance has
irreparably harmed the United States Government. 595 F.2d at 935;
456 F. Supp. at 180. [
Footnote
9]
Page 444 U. S. 514
III
The decision of the Court of Appeals denies the Government the
most appropriate remedy for Snepp's acknowledged wrong. Indeed, as
a practical matter, the decision may well leave the Government with
no reliable deterrent against similar breaches of security. No one
disputes that the actual damages attributable to a publication such
as Snepp's generally are unquantifiable. Nominal damages are a
hollow alternative, certain to deter no one. The punitive damages
recoverable after a jury trial are speculative and unusual. Even if
recovered, they may bear no relation to either the Government's
irreparable loss or Snepp's unjust gain.
The Government could not pursue the only remedy that the Court
of Appeals left it [
Footnote
10] without losing the benefit of the bargain it seeks to
enforce. Proof of the tortious conduct necessary to sustain an
award of punitive damages might force the Government to disclose
some of the very confidences that Snepp promised to protect. The
trial of such a suit, before a jury if the defendant so elects,
would subject the CIA and its
Page 444 U. S. 515
officials to probing discovery into the Agency's highly
confidential affairs. Rarely would the Government run this risk. In
a letter introduced at Snepp's trial, former CIA Director Colby
noted the analogous problem in criminal cases. Existing law, he
stated,
"requires the revelation in open court of confirming or
additional information of such a nature that the potential damage
to the national security precludes prosecution."
App. to Pet. for Cert. in No. 78-1871, p. 68a. When the
Government cannot secure its remedy without unacceptable risks, it
has no remedy at all.
A constructive trust, on the other hand, protects both the
Government and the former agent from unwarranted risks. This remedy
is the natural and customary consequence of a breach of trust.
[
Footnote 11] It deals
fairly with both parties by conforming relief to the dimensions of
the wrong. If the agent secures prepublication clearance, he can
publish with no fear of liability. If the agent publishes
unreviewed material in violation of his fiduciary and contractual
obligation, the trust remedy simply requires him to disgorge the
benefits of his faithlessness. Since the remedy is swift and sure,
it is tailored to deter those who would place sensitive information
at risk. And since the remedy reaches only funds attributable to
the
Page 444 U. S. 516
breach, it cannot saddle the former agent with exemplary damages
out of all proportion to his gain. The decision of the Court of
Appeals would deprive the Government of this equitable and
effective means of protecting intelligence that may contribute to
national security. We therefore reverse the judgment of the Court
of Appeals insofar as it refused to impose a constructive trust on
Snepp's profits, and we remand the cases to the Court of Appeals
for reinstatement of the full judgment of the District Court.
So ordered.
* Together with No. 79-265,
United States v. Snepp,
also on petition for certiorari to the same court.
[
Footnote 1]
Upon the eve of his departure from the Agency in 1976, Snepp
also executed a "termination secrecy agreement." That document
reaffirmed his obligation "never" to reveal
"any classified information, or any information concerning
intelligence or CIA that has not been made public by CIA . . .
without the express written consent of the Director of Central
Intelligence or his representative."
App. to Pct. for Cert. in No. 78-1871, p. 61a.
[
Footnote 2]
At the time of suit, Snepp already had received about $60,000 in
advance payments. His contract with his publisher provides for
royalties and other potential profits.
456 F.
Supp. 176, 179 (ED Va.1978).
[
Footnote 3]
The Court of Appeals and the District Court rejected each of
Snepp's defenses to the enforcement of his contract. 595 F.2d 926,
931-934 (CA4 1979); 456 F. Supp. at 180-181. In his petition for
certiorari, Snepp relies primarily on the claim that his agreement
is unenforceable as a prior restraint on protected speech.
When Snepp accepted employment with the CIA, he voluntarily
signed the agreement that expressly obligated him to submit any
proposed publication for prior review. He does not claim that he
executed this agreement under duress. Indeed, he voluntarily
reaffirmed his obligation when he left the Agency. We agree with
the Court of Appeals that Snepp's agreement is an "entirely
appropriate" exercise of the CIA Director's statutory mandate to
"protec[t] intelligence sources and methods from unauthorized
disclosure," 50 U.S.C. § 403(d)(3). 595 F.2d at 932. Moreover, this
Court's cases make clear that -- even in the absence of an express
agreement -- the CIA could have acted to protect substantial
government interests by imposing reasonable restrictions on
employee activities that, in other contexts, might be protected by
the First Amendment.
CSC v. Letter Carriers, 413 U.
S. 548,
413 U. S. 565
(1973);
see Brown v. Glines, ante, p.
444 U. S. 348.
Buckley v Valeo, 424 U. S. 1,
424 U. S. 25-28
(1976);
Greer v. Spock, 424 U. S. 828
(1976);
id. at
424 U. S.
844-848 (POWELL, J., concurring);
Cole v.
Richardson, 405 U. S. 676
(1972). The Government has a compelling interest in protecting both
the secrecy of information important to our national security and
the appearance of confidentiality so essential to the effective
operation of our foreign intelligence service.
See infra
at
444 U. S.
511-512. The agreement that Snepp signed is a reasonable
means for protecting this vital interest.
[
Footnote 4]
The Government's concession distinguished this litigation from
United States v. Marchetti, 466 F.2d 1309 (CA4),
cert.
denied, 409 U.S. 1063 (1972). There, the Government claimed
that a former CIA employee intended to violate his agreement not to
publish any classified information. 466 F.2d at 1313. Marchetti
therefore did not consider the appropriate remedy for the breach of
an agreement to submit all material for prepublication review. By
relying on
Marchetti in this litigation, the Court of
Appeals overlooked the difference between Snepp's breach and the
violation at issue in
Marchetti.
[
Footnote 5]
The first sentence of the 1968 agreement read:
"I, Frank W. Snepp, III, understand that upon entering duty with
the Central Intelligence Agency I am undertaking a position of
trust in that Agency of the Government. . . ."
App. to Pet. for Cert. in No. 78 1871, p. 58a.
[
Footnote 6]
Quite apart from the plain language of the agreement, the nature
of Snepp's duties and his conceded access to confidential sources
and materials could establish a trust relationship.
See
595 F.2d at 939 (Hoffman, J., concurring in part and dissenting in
part). Few types of governmental employment involve a higher degree
of trust than that reposed in a CIA employee with Snepp's
duties.
[
Footnote 7]
Every major nation in the world has an intelligence service.
Whatever fairly may be said about some of its past activities, the
CIA (or its predecessor the Office of Strategic Services) is an
agency thought by every President since Franklin D. Roosevelt to be
essential to the security of the United States and -- in a sense --
the free world. It is impossible for a government wisely to make
critical decisions about foreign policy and national defense
without the benefit of dependable foreign intelligence.
See
generally T. Powers, The Man Who Kept the Secrets (1979).
[
Footnote 8]
In questioning the force of Admiral Turner's testimony, MR.
JUSTICE STEVENS' dissenting opinion suggests that the concern of
foreign intelligence services may not be occasioned by the hazards
of allowing an agent like Snepp to publish whatever he pleases, but
by the release of classified information or simply the disagreement
of foreign agencies with our Government's classification policy.
Post at
444 U. S.
522-523. MR. JUSTICE STEVENS' views in this respect not
only find no support in the record, but they also reflect a
misapprehension of the concern reflected by Admiral Turner's
testimony. If in fact information is unclassified or in the public
domain, neither the CIA nor foreign agencies would be concerned.
The problem is to ensure in advance, and by proper procedures, that
information detrimental to national interest is not published.
Without a dependable prepublication review procedure, no
intelligence agency or responsible Government official could be
assured that an employee privy to sensitive information might not
conclude on his own -- innocently or otherwise -- that it should be
disclosed to the world.
The dissent argues that the Court is allowing the CIA to
"censor" its employees' publications.
Post at
444 U. S. 522.
Snepp's contract, however, requires no more than a clearance
procedure subject to judicial review. If Snepp, in compliance with
his contract, had submitted his manuscript for review and the
Agency had found it to contain sensitive material, presumably -- if
one accepts Snepp's present assertion of good intentions -- an
effort would have been made to eliminate harmful disclosures.
Absent agreement in this respect, the Agency would have borne the
burden of seeking an injunction against publication.
See Alfred
A. Knopf, Inc. v. Colby, 509 F.2d 1362 (CA4),
cert.
denied, 421 U.S. 992 (1975);
United State v.
Marchetti, 466 F.2d 1309 (CA4),
cert. denied, 409
U.S. 1063 (1972).
[
Footnote 9]
Although both the District Court and the Court of Appeals
expressly found otherwise, MR. JUSTICE STEVENS says that "the
interest in confidentiality that Snepp's contract was designed to
protect has not been compromised."
Post at
444 U. S.
516-517. Thus, on the basis of a premise wholly at odds
with the record, the dissent bifurcates Snepp's 1968 agreement and
treats its interdependent provisions as if they imposed unrelated
obligations. MR. JUSTICE STEVENS then analogizes Snepp's
prepublication review agreement with the Government to a private
employee's covenant not to compete with his employer.
Post
at
444 U. S.
518-520. A body of private law intended to preserve
competition, however, simply has no bearing on a contract made by
the Director of the CIA in conformity with his statutory obligation
to "protec[t] intelligence sources and methods from unauthorized
disclosure." 50 U.S.C. § 403(d)(3).
[
Footnote 10]
Judge Hoffman's dissent suggests that even this remedy may be
unavailable if the Government must bring suit in a State that
allows punitive damages only upon proof of compensatory damages.
595 F.2d at 940. The Court of Appeals majority, however, held as a
matter of federal law that the nominal damages recoverable for any
breach of a trust agreement will support an exemplary award.
See id. at 936, and n. 10, 937-938.
[
Footnote 11]
See id. at 939 (Hoffman, J., concurring in part and
dissenting in part). MR. JUSTICE STEVENS concedes that, even in the
absence of a written contract, an employee has a fiduciary
obligation to protect confidential information obtained during the
course of his employment.
Post at
444 U. S. 518.
He also concedes that all personal profits gained from the
exploitation of such information are impressed with a constructive
trust in favor of the employer.
Post at
444 U. S. 521.
In this case, he seems to think that the common law would not treat
information as "confidential" unless it were "classified."
See,
e.g., post at
444 U. S. 518.
We have thought that the common law obligation was considerably
more expansive.
See, e.g., Restatement (Second) of Agency
§§ 396(c), 400 and Comment c, 404 and Comments b, d (1958); 5 A.
Scott, Trusts § 505 (3d ed.1967). But since this case involves the
breach of a trust agreement that specifically required the
prepublication review of all information about the employer, we
need not look to the common law to determine the scope of Snepp's
fiduciary obligation.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
In 1968, Frank W. Snepp signed an employment agreement with the
CIA in which he agreed to submit to the Agency any information he
intended to publish about it for prepublication review. [
Footnote 2/1] The purpose of such an
agreement, as the Fourth Circuit held, is not to give the CIA the
power to censor its employees' critical speech, but rather to
ensure that classified, nonpublic information is not disclosed
without the Agency's permission. 595 F.2d 926, 932 (1979);
see
also United States v. Marchetti, 466 F.2d 1309, 1317 (CA4
1972),
cert. denied, 409 U.S. 1063.
In this case, Snepp admittedly breached his duty to submit the
manuscript of his book, Decent Interval, to the CIA for
prepublication review. However, the Government has conceded that
the book contains no classified, nonpublic material. [
Footnote 2/2] Thus, by definition, the
interest in confidentiality
Page 444 U. S. 517
that Snepp's contract was designed to protect has not been
compromised. Nevertheless, the Court today grants the Government
unprecedented and drastic relief in the form of a constructive
trust over the profits derived by Snepp from the sale of the book.
Because that remedy is not authorized by any applicable law, and
because it is most inappropriate for the Court to dispose of this
novel issue summarily on the Government's conditional
cross-petition for certiorari, I respectfully dissent.
I
The rule of law the Court announces today is not supported by
statute, by the contract, or by the common law. Although Congress
has enacted a number of criminal statutes punishing the
unauthorized dissemination of certain types of classified
information, [
Footnote 2/3] it has
not seen fit to authorize the constructive trust remedy the Court
creates today. Nor does either of the contracts Snepp signed with
the Agency provide for any such remedy in the event of a breach.
[
Footnote 2/4] The Court's per
curiam
Page 444 U. S. 518
opinion seems to suggest that its result is supported by a blend
of the law of trusts and the law of contracts. [
Footnote 2/5] But neither of these branches of the
common law supports the imposition of a constructive trust under
the circumstances of this case.
Plainly this is not a typical trust situation in which a settlor
has conveyed legal title to certain assets to a trustee for the use
and benefit of designated beneficiaries. Rather, it is an
employment relationship in which the employee possesses fiduciary
obligations arising out of his duty of loyalty to his employer. One
of those obligations, long recognized by the common law even in the
absence of a written employment agreement, is the duty to protect
confidential or "classified" information. If Snepp had breached
that obligation, the common law would support the implication of a
constructive trust upon the benefits derived from his misuse of
confidential information. [
Footnote
2/6]
But Snepp did not breach his duty to protect confidential
information. Rather, he breached a contractual duty, imposed in aid
of the basic duty to maintain confidentiality, to
Page 444 U. S. 519
obtain prepublication clearance. In order to justify the
imposition of a constructive trust, the majority attempts to equate
this contractual duty with Snepp's duty not to disclose, labeling
them both as "fiduciary." I find nothing in the common law to
support such an approach.
Employment agreements often contain covenants designed to ensure
in various ways that an employee fully complies with his duty not
to disclose or misuse confidential information. One of the most
common is a covenant not to compete. Contrary to the majority's
approach in this case, the courts have not construed such covenants
broadly simply because they support a basic fiduciary duty; nor
have they granted sweeping remedies to enforce them. On the
contrary, because such covenants are agreements in restraint of an
individual's freedom of trade, they are enforceable only if they
can survive scrutiny under the "rule of reason." That rule
originally laid down in the seminal case of
Mitchel v.
Reynolds, 1 P.Wms. 181, 24 Eng.Rep. 347 (1711), requires that
the covenant be reasonably necessary to protect a legitimate
interest of the employer (such as an interest in confidentiality),
that the employer's interest not be outweighed by the public
interest, [
Footnote 2/7] and that
the covenant not be of any longer duration or wider geographical
scope than necessary to protect the employer's interest. [
Footnote 2/8]
Page 444 U. S. 520
The Court. has not persuaded me that a rule of reason analysis
should not be applied to Snepp's covenant to submit to
prepublication review. Like an ordinary employer, the CIA has a
vital interest in protecting certain types of information; at the
same time, the CIA employee has a countervailing interest in
preserving a wide range of work opportunities (including work as an
author) and in protecting his First Amendment rights. The public
interest lies in a proper accommodation that will preserve the
intelligence mission of the Agency while not abridging the free
flow of unclassified information. When the Government seeks to
enforce a harsh restriction on the employee's freedom, [
Footnote 2/9] despite its admission that
the interest the agreement was designed to protect -- the
confidentiality of classified information -- has not been
compromised, an equity court might well be persuaded that the case
is not one in which the covenant should be enforced. [
Footnote 2/10]
Page 444 U. S. 521
But even assuming that Snepp's covenant to submit to
prepublication review should be enforced, the constructive trust
imposed by the Court is not an appropriate remedy. If an employee
has used his employer's confidential information for his own
personal profit, a constructive trust over those profits is
obviously an appropriate remedy, because the profits are the direct
result of the breach. But Snepp admittedly did not use confidential
information in his book; nor were the profits from his book in any
sense a product of his failure to submit the book for
prepublication review. For even if Snepp had submitted the book to
the Agency for prepublication review, the Government's censorship
authority would surely have been limited to the excision of
classified material. In this case, then, it would have been obliged
to clear the book for publication in precisely the same form as it
now stands. [
Footnote 2/11] Thus,
Snepp has not gained any profits as a result of his breach; the
Government, rather than Snepp, will be unjustly enriched if he is
required to disgorge profits attributable entirely to his own
legitimate activity.
Despite the fact that Snepp has not caused the Government the
type of harm that would ordinarily be remedied by
Page 444 U. S. 522
the imposition of a constructive trust, the Court attempts to
justify a constructive trust remedy on the ground that the
Government has suffered some harm. The Court states that
publication of "unreviewed material" by a former CIA agent "can be
detrimental to vital national interests even if the published
information is unclassified."
Ante at
444 U. S.
511-512. It then seems to suggest that the injury in
such cases sterns from the Agency's inability to catch "harmful"
but unclassified information before it is published. I do not
believe, however, that the Agency has any authority to censor its
employees' publication of unclassified information on the basis of
its opinion that publication may be "detrimental to vital national
interests" or otherwise "identified as harmful."
Ibid. The
CIA never attempted to assert such power over Snepp in either of
the contracts he signed; rather, the Agency itself limited its
censorship power to preventing the disclosure of "classified"
information. Moreover, even if such a wide-ranging prior restraint
would be good national security policy, I would have great
difficulty reconciling it with the demands of the First
Amendment.
The Court also relies to some extent on the Government's theory
at trial that Snepp caused it harm by flouting his prepublication
review obligation and thus making it appear that the CIA was
powerless to prevent its agents from publishing any information
they chose to publish, whether classified or not. The Government
theorized that this appearance of weakness would discourage foreign
governments from cooperating with the CIA because of a fear that
their secrets might also be compromised. In support of its position
that Snepp's book had in fact had such an impact, the Government
introduced testimony by the Director of the CIA, Admiral Stansfield
Turner, stating that Snepp's book and others like it had
jeopardized the CIA's relationship with foreign intelligence
services by making them unsure of the Agency's ability to maintain
confidentiality. Admiral Turner's truncated testimony does not
explain, however, whether these unidentified
Page 444 U. S. 523
"other" books actually contained classified information.
[
Footnote 2/12] If so, it is
difficult to believe that the publication of a book like Snepp's,
which does not reveal classified information, has significantly
weakened the Agency's position. Nor does it explain whether the
unidentified foreign agencies who have stopped cooperating with the
CIA have done so because of a legitimate fear that secrets will be
revealed or because they merely disagree with our Government's
classification policies. [
Footnote
2/13]
In any event, to the extent that the Government seeks to punish
Snepp for the generalized harm he has caused by failing to submit
to prepublication review and to deter others from following in his
footsteps, punitive damages is, as the Court of Appeals held,
clearly the preferable remedy,
"since a constructive trust depends on the concept of unjust
enrichment, rather than deterrence and punishment.
See D.
Dobbs, Law of Remedies § 3.9 at 205 and § 4.3 at 246 (1973)."
595 F.2d at 937. [
Footnote
2/14]
Page 444 U. S. 524
II
The Court's decision to dispose of this case summarily on the
Government's conditional cross-petition for certiorari is just as
unprecedented as its disposition of the merits.
Snepp filed a petition for certiorari challenging the Fourth
Circuit's decision insofar as it affirmed the entry of an
injunction requiring him to submit all future manuscripts for
prepublication review and remanded for a determination of whether
punitive damages would be appropriate for his failure to submit
Decent Interval to the Agency prior to its publication. The
Government filed a brief in opposition, as well as a cross-petition
for certiorari; the Government specifically stated, however, that
it was cross-petitioning only to bring the entire case before the
Court in the event that the Court should decide to grant Snepp's
petition. The Government explained that,
"[b]ecause the contract remedy provided by the court of appeals
appears to be sufficient in this case to protect the Agency's
interest, the government has not independently sought review in
this Court."
In its concluding paragraph, the Government stated:
"If this Court grants [Snepp's] . . . petition for a writ of
certiorari in No. 78-1871, it should also grant this
cross-petition. If the petition in No. 78-1871 is denied, this
petition should also be denied."
Pet. for Cert. in No. 79-265, p. 5.
Given the Government's position, it would be highly
inappropriate, and perhaps even beyond this Court's jurisdiction,
to grant the Government's petition while denying Snepp's. Yet that
is in essence what has been done. [
Footnote 2/15] The majority obviously does not believe
that Snepp's claims merit this Court's consideration, for they are
summarily dismissed in a
Page 444 U. S. 525
footnote.
Ante at
444 U. S. 509,
n. 3. It is clear that Snepp's petition would not have been granted
on its own merits.
The Court's opinion is a good demonstration of why this Court
should not reach out to decide a question not necessarily presented
to it, as it has done in this case. Despite the fact that the
Government has specifically stated that the punitive damages remedy
is "sufficient" to protect its interests, the Court forges ahead
and summarily rejects that remedy on the grounds that (a) it is too
speculative, and thus would not provide the Government with a
"reliable deterrent against similar breaches of security,"
ante at
444 U. S. 514,
and (b) it might require the Government to reveal confidential
information in court, the Government might forgo damages rather
than make such disclosures, and the Government might thus be left
with "no remedy at all,"
ante at
444 U. S. 515.
It seems to me that the Court is foreclosed from relying upon
either ground by the Government's acquiescence in the punitive
damages remedy. Moreover, the second rationale [
Footnote 2/16] is entirely speculative and, in
this case at least, almost certainly wrong. The Court states
that
"[p]roof of the tortious conduct necessary to sustain an award
of punitive damages might force the Government to disclose some of
the very confidences that Snepp promised to protect."
Ante at
444 U. S.
514.
Yet under the Court of Appeals' opinion, the Government would be
entitled to punitive damages simply by proving that Snepp deceived
it into believing that he was going to comply with his duty to
submit the manuscript for prepublication review and that the
Government relied on these misrepresentations to its detriment. I
fail to see how such a showing would require the Government to
reveal any confidential information or to expose itself to "probing
discovery into the Agency's highly confidential affairs."
Ante at
444 U. S.
515.
Page 444 U. S. 526
III
The uninhibited character of today's exercise in lawmaking is
highlighted by the Court's disregard of two venerable principles
that favor a more conservative approach to this case.
First, for centuries, the English-speaking judiciary refused to
grant equitable relief unless the plaintiff could show that his
remedy at law was inadequate. Without waiting for an opportunity to
appraise the adequacy of the punitive damages remedy in this case,
the Court has jumped to the conclusion that equitable relief is
necessary.
Second, and of greater importance, the Court seems unaware of
the fact that its drastic new remedy has been fashioned to enforce
a species of prior restraint on a citizen's right to criticize his
government. [
Footnote 2/17]
Inherent in this prior restraint is the risk that the reviewing
agency will misuse its authority to delay the publication of a
critical work or to persuade an author to modify the contents of
his work beyond the demands of secrecy. The character of the
covenant as a prior restraint on free speech surely imposes an
especially heavy burden on the censor to justify the remedy it
seeks. It would take more than the Court has written to persuade me
that that burden has been met.
I respectfully dissent.
[
Footnote 2/1]
Snepp also signed a termination agreement in 1976 in which he
made substantially the same commitment.
[
Footnote 2/2]
In response to an interrogatory asking whether it contended that
"Decent Interval contains classified information or any information
concerning intelligence or CIA that has not been made public by
CIA," the Government stated that, "[f]or the purpose of this
action, plaintiff does not so contend." Record Item No. 24, p. 14.
Because of this concession, the District Judge sustained the
Government's objections to defense efforts to determine whether
Decent Interval in fact contains information that the Government
considers classified.
See, e.g., the testimony of Admiral
Stansfield Turner, Director of the CIA, Tr. 135; and of Herbert
Hetu, the CIA's Director of Public Affairs, Tr. 153.
[
Footnote 2/3]
See, e.g., 18 U.S.C. § 798, which imposes a prison term
of 10 years and a $10,000 fine for knowingly and willfully
publishing certain types of classified information; 18 U.S.C. §
794, which makes it a criminal offense punishable by life in prison
to communicate national defense information to a foreign
government; and 5 U.S.C. § 8312, which withdraws the right to
Government retirement benefits from a person convicted of violating
these statutes.
See also Exec.Order No. 12065, 3 CFR 190
(1979), note following 50 U.S.C. § 401 (1976 ed., Supp. II), which
provides administrative sanctions, including discharge, against
employees who publish classified information. Thus, even in the
absence of a constructive trust remedy, an agent like Snepp would
hardly be free, as the majority suggests, "to publish whatever he
pleases."
Ante at
444 U. S. 513, n. 8.
[
Footnote 2/4]
In both his original employment agreement and the termination
agreement Snepp acknowledged the criminal penalties that might
attach to any publication of classified information. In his
employment agreement, he also agreed that a breach of the agreement
would be cause for termination of his employment. No other remedies
were mentioned in either agreement.
[
Footnote 2/5]
In a footnote,
see ante at
444 U. S. 515,
n. 11, the Court suggests that it need not look to the common law
to support its holding because the case involves a written
contract. But inasmuch as the contract itself does not state what
remedy is to be applied in the event of a breach, the common law is
the only source of law to which we can look to determine what
constitutes an appropriate remedy.
[
Footnote 2/6]
See, e.g., Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d
1387, 1392 (CA4 1971) (Virginia law),
cert. denied, 405
U.S. 1017;
Tlapek v. Chevron Oil Co., 407 F.2d 1129 (CA8
1969) (Arkansas law);
Structural Dynamics Research Corp. v.
Engineering Mechanic Research Corp., 401 F.
Supp. 1102, 1120 (ED Mich.1975) (Michigan law); Restatement
(Second) of Agency § 396(c) (1958) ("Unless otherwise agreed, after
the termination of the agency, the agent: . . . (c) has a duty to
account for profits made by the sale or use of trade secrets and
other confidential information, whether or not in competition with
the principal . . .").
[
Footnote 2/7]
As the court held in
Herbert Morris, Ltd. v. Sacelby,
[1916] A. C. 688, 704, the employer's interest in protecting trade
secrets does not outweigh the public interest in keeping the
employee in the workforce:
"[A]n employer can[not] prevent his employee from using the
skill and knowledge in his trade or profession which he has learnt
in the course of his employment by means of directions or
instructions from the employer. That information and that
additional skill he is entitled to use for the benefit of himself
and the benefit of the public who gain the advantage of his having
had such admirable instruction. The case in which the Court
interferes for the purpose of protection is where use is made not
of the skill which the man may have acquired, but of the secrets of
the trade or profession which he had no right to reveal to any one
else. . . ."
[
Footnote 2/8]
See, e.g., Briggs v. R. R. Donnelley & Sons Co., 59
F.2d 39, 41 (CA1 1978) (Illinois law);
American Hot Rod Assn.,
Inc. v. Carrier, 50 F.2d 1269, 1277 (CA4 1974) (North Carolina
law);
Alston Studios, Inc. v. Lloyd V. Gress &
Associates, 492 F.2d 279, 282 (CA4 1974) (Virginia law);
Mixing Equipment Co. v. Philadelphia Gear, Inc., 436 F.2d
1308, 1312 (CA3 1971) (New York law);
Water Services, Inc. v.
Tesco Chemicals, Inc., 410 F.2d 163, 167 (CA5 1969) (Georgia
law); Restatement (Second) of Contracts § 330 (Tent.Draft No. 12,
Mar. 1, 1977).
[
Footnote 2/9]
The covenant imposes a serious prior restraint on Snepp's
ability to speak freely,
see 444
U.S. 507fn2/17|>n. 17,
infra, and is of indefinite
duration and scope -- factors that would make most similar
covenants unenforceable.
See, e.g., Alston Studios, Inc. v.
Lloyd V. Gress & Associates, supra at 283 (holding void
under Virginia law a covenant with no geographical limitation);
American Hot Rod Assn., Inc. v. Carrier, supra at 1279
(holding void under North Carolina law a covenant with no
durational or geographical limitation);
E. L. Conwell & Co.
v. Gutberlet, 429 F.2d 527, 528 (CA4 1970) (holding void under
Maryland law a covenant with no durational or geographical
limitation).
[
Footnote 2/10]
The Court correctly points out that the Government may regulate
certain activities of its employees that would be protected by the
First Amendment in other contexts.
Ante at
444 U. S. 509,
n. 3. But none of the cases it cites involved a requirement that an
employee submit all proposed public statements for prerelease
censorship or approval. The Court has not previously considered the
enforceability of this kind of prior restraint or the remedy that
should be imposed in the event of a breach.
[
Footnote 2/11]
If he had submitted the book to the Agency and the Agency had
refused to consent to the publication of certain material in it,
Snepp could have obtained judicial review to determine whether the
Agency was correct in considering the material classified.
See
United States v. Marchetti, 466 F.2d 1309, 1317 (CA4 1972),
cert. denied, 409 U.S. 1063. It is noteworthy that the
Court does not disagree with the Fourth Circuit's view in
Marchetti, reiterated in
Snepp, that a CIA
employee has a First Amendment right to publish unclassified
information. Thus, despite its reference in footnote 3 of its
opinion to the Government's so-called compelling interest in
protecting "the appearance of confidentiality,"
ante at
444 U. S. 509,
n. 3, and despite some ambiguity in the Court's reference to
"detrimental" and "harmful" as opposed to "classified" information,
ante at
444 U. S.
511-512, I do not understand the Court to imply that the
Government could obtain an injunction against the publication of
unclassified information.
[
Footnote 2/12]
The District Judge sustained the Government's objections to
questions concerning the identity of other agents who had published
the unauthorized works to which Admiral Turner referred. Tr. 136.
However, Admiral Turner did testify that the harmful materials
involved "[p]rimarily the appearance in the United States media of
identification of sources and methods of collecting intelligence. .
. ."
Id. at 143. This type of information is certainly
classified, and is specifically the type of information that Snepp
has maintained he did
not reveal in Decent Interval.
See, e.g., Snepp's December 7, 1977, interview on the
Tomorrow show, in which he stated: "I have made a very determined
effort not to expose sources or methods. . . ." Government's
Requests for Admissions, Record Item 19, Exhibit I, p. 5.
[
Footnote 2/13]
Snepp's attorneys were foreclosed from asking Admiral Turner
whether particular foreign sources had stopped cooperating with
United States' authorities as a direct result of the publication of
Decent Interval. Tr. 138. Thus, it is unclear whether or why
foreign sources may have reacted unfavorably to its publication.
However, William E. Colby, the CIA's former Director, did indicate
in his testimony that foreign nations generally have a stricter
secrecy code than does the United States.
Id. at
175-176.
[
Footnote 2/14]
One of the Court's justifications for its constructive trust
remedy is that "it cannot saddle the former agent with exemplary
damages out of all proportion to his gain."
Ante at
444 U. S. 516.
This solicitude for Snepp's welfare is rather ironic in view of the
Draconian nature of the remedy imposed by the Court today.
[
Footnote 2/15]
I have been unable to discover any previous case in which the
Court has acted as it does today, reaching the merits of a
conditional cross-petition despite its belief that the petition
does not merit granting certiorari.
[
Footnote 2/16]
Which, it should be noted, does not appear anywhere in the
Government's 5-page cross-petition.
[
Footnote 2/17]
The mere fact that the Agency has the authority to review the
text of a critical book in search of classified information before
it is published is bound to have an inhibiting effect on the
author's writing. Moreover, the right to delay publication until
the review is completed is itself a form of prior restraint that
would not be tolerated in other contexts.
See, e.g., New York
Times Co. v. United States, 403 U. S. 713;
Nebraska Press Assn. v. Stuart, 427 U.
S. 539. In view of the national interest in maintaining
an effective intelligence service, I am not prepared to say that
the restraint is necessarily intolerable in this context. I am,
however, prepared to say that, certiorari having been granted, the
issue surely should not be resolved in the absence of full briefing
and argument.