Is the Press Losing the First Amendment?


Writers have had an up and down time in the courts recently. The press is worried about a series of new judicial decisions that it believes will sharply decrease its powers and shrink the role of the First Amendment in American society. The latest of these is the amazing case of US v. Snepp, in which the Supreme Court ordered an author to turn over all his profits to the government without even holding a hearing on the issue. But the press has also won what it regards as important victories. The most recent of these is the Richmond Newspapers case, decided only a few months ago, in which the Court reversed its decision in an earlier case and held that reporters, at least in principle, have a right to attend criminal trials even when the defendant wishes to exclude them.1

US v. Snepp is much the more important of the two cases. Frank Snepp signed a contract when he joined the CIA, promising to submit to it, before publication, anything he later wrote about it. The CIA argues that that agreement, which it obtains from every agent, is necessary so that it can make its own judgment, in advance, about whether any of the material an author proposes to publish is classified, and take legal action to enjoin what it does consider classified if the author does not accept its judgment. Snepp wrote a book called Decent Interval, after leaving the agency, in which he sharply criticized the CIA’s behavior in Vietnam during the final months of the war. He feared that the agency would use its right to review his manuscript to delay and harass him by claiming that matters of no importance to security were classified, as the agency had certainly done in the case of Victor Marchetti, another former agent who had written and submitted a book.2 After much indecision Snepp decided to publish his book without submitting it to the CIA first.

The agency sued him under the contract. Snepp argued that the First Amendment made his contractual agreement null and void because it was a form of censorship. But neither the federal district court nor the Circuit Court of Appeals, to which Snepp appealed, accepted that claim. The district court ordered Snepp, by way of remedy, to hand over to the government all his profits on the book—his only earnings for several years of work—but the Circuit Court did reverse the district court on this point. It said that the government must be content with such actual financial damages as it could prove it suffered because Snepp had broken his contract, which is the normal remedy in breach of contract cases.

Snepp appealed to the Supreme Court on the First Amendment point. The government asked the Court not to take the case for review, and said that it was satisfied under the circumstances with the damage remedy the Circuit Court had ordered. But it added that if the Court did take…

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