U.S. Consistently Undermines Whistleblowers’ Rights to Free Expression by Use of Contract Law
Updated: Jun 28
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By Eric Harvey
COPYRIGHT PENDING 2021
In its pursuit of whistleblowers, the United States has undermined constitutionally guaranteed rights to freedom of expression. As it pursues such entities, it rarely deals in questions of constitutional freedoms. Historically, in its attempts at restricting the free expression of whistleblowers, the American government pursues them on grounds that are unrelated to The First Amendment.
In cases where former government workers publish books on the problematic practices of the United States, which these whistleblowers have witnessed during their employment by the American government, the grounds for undermining their rights often revolve around aspects of contract law. In such cases, these aspects of contract law deal with violations of non-disclosure agreements.
In other words, when it comes to former government employees-turned-authorial-whistleblowers, the need for compliance with contractual agreements trumps emphasis upon freedom of expression and press.
In Snepp v. United States, 444 U.S. 507 (1980), former Vietnam War-era CIA interrogator Frank Warren Snepp, III appealed a lower court's decision to enforce an enjoinder against him, after the release of his book, Decent Interval. Entitling the government to the royalties of the book, the enjoinder effectively de-incentivized authorial whistleblowing. The Supreme Court's opinion, handed down February 19, 1980, refers to the non-disclosure agreement Snepp signed as a condition of his employment, quoting it:
“[Snepp agreed] not [to] 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."
Id. at 1.
In Decent Interval, Snepp blew the whistle on problematic aspects of America’s campaign against Communism during the Vietnam War. In its review of the government’s petition, The Supreme Court observed the validity of the non-disclosure agreement that stipulated the maintenance of confidentiality as it was articulated around government secrets to which Snepp had been exposed. The court observed that Snepp had not submitted to pre-publication review by any government agency. Such a review was intended to determine whether the content of Snepp’s book was classified in order to enforce his compliance with the non-disclosure agreement.
The highest court in America upheld the enjoinder the government sought against Snepp. The Supreme Court mandated that the former CIA interrogator submit to pre-publication review by government agencies to determine whether any books he would release in the future featured classified information. It also upheld the government’s petition for seizure of proceeds from the sales of Decent Interval.
As the United States could not viably seek prior restraint against publication of even classified information, under New York Times Co. v. United States, 403 U.S. 713 (1971), it instead relied on contract laws mandating compliance with non-disclosure agreements. Prior restraint is defined as a pre-publication bar on release of information that is deemed to be libelous or harmful.
In New York Times Co., the United States sought to enjoin the newspaper from releasing The Pentagon Papers, a study of America’s conduct in Southeast Asia during the Vietnam War. The opinion handed down by the majority in New York Times Co. recognized an urgent need for compliance with The First Amendment, essentially holding that bars on publication of the nearly-9,000-page study would cause irreparable damage to the newspaper’s right to freedom of the press.
In New York Times Co., Supreme Court justices in the majority recognized that the information found within The Papers was essential to the public interest, asserting that the release of this information in that interest was consistent with the democratic principles behind the absence of restrictions on news media.
While The New York Times was not ultimately prosecuted for any criminal offense, the whistleblower that leaked The Papers, Dr. Daniel Ellsberg, a former government intelligence strategist, was subjected to criminal proceedings. Nevertheless, when it was discovered that unofficial employees of the Nixon Administration had engaged in illegal evidence gathering practices by breaking into Dr. Ellsberg’s psychiatrist’s office to obtain evidence, the case was dismissed.
In Snepp, precedent was set for future and comparable restrictions on whistleblowers, such as that which occurred in the case against Edward Snowden in the wake of Permanent Record—a memoir by the former government contractor, which dealt to varying degrees with illegal government surveillance of Americans. In the case against Snowden, government attorneys relied on Snepp in the arguments they presented before a federal court. On September 29, 2020, the U.S. District Court for the Eastern District of Virginia imposed a permanent injunction on Snowden’s release of the book. Possibly inconsistent with what one might expect because of this ruling, a United States court ultimately found this surveillance to be illegal seven years after The Guardian released material on the surveillance and a short while before the court in Virginia granted the government’s request to seize proceeds from sales of Snowden’s book. Snowden had first disclosed the surveillance to lawyer-turned-journalist Glenn Greenwald in the early 2010s. Writing stories on the Snowden leaks for The Guardian, Greenwald was the deciding factor in the British news outlet’s winning The Pulitzer Prize.
Whatever the case may be, in relying on facets of contract law in its assaults on whistleblowers that have authored books revealing classified information after their employment by the American government, the United States has undermined constitutional rights to freedom of expression and freedom of the press.
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