(Editors’ note: This post also appears on Lawfare. This the first in our series on the Supreme Court petition in Edgar v. Haines. The next in the series may be found here.)

The U.S. government’s prepublication review process for written works by certain current and former government officials is a mammoth system of prior restraint that impacts the speech of millions. We and others have highlighted the problems with this system, including its scale, lack of adequate process, arbitrariness, violation of the First Amendment, massive chilling effect, and adverse consequences for national security.

The challenge has been figuring out a way to fix the system. Almost six years ago, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concerns with the pre-publication review process and directed the intelligence community (IC) to issue a policy within 180 days that was more consistent with due process and the First Amendment. Though the IC normally takes steps to comply with such non-legislative HPSCI directives “as a matter of comity,” six years later the IC has not implemented a change in prepublication policy. Another route to change – litigation to challenge the constitutionality of the prepublication review system – has been rare. The main reason is the widely held belief that the Supreme Court blessed the modern massive prior restraint system in the 1980 case Snepp v. U.S.

This belief is false: the Supreme Court did no such thing in Snepp. In explaining why this is so, this post and a subsequent one draw on an amicus brief that we filed in support of the pending cert. petition in Edgar v. Haines. The petition asks the Court to overrule Snepp or to clarify that lower courts should not read the decision to preclude meaningful scrutiny of the federal government’s current prepublication review regime under the First Amendment. The thrust of our amicus brief is that Snepp is an illegitimate foundation for today’s prior restraint system. (David Zimmer and Benjamin Hayes of Goodwin Procter, to whom we are very grateful, drafted and filed the brief, which we rely on here in part.) The first reason for this conclusion, discussed in this post, is that the Supreme Court in Snepp decided the foundational First Amendment issue in a brief footnote in the procedural history section of a shadow docket summary reversal without merits briefing or oral argument, and with other procedural irregularities. The second reason, discussed in subsequent posts, is that the illegitimate decision in Snepp became the foundation for a massively broader, different-in-kind, and worse system of prepublication review than was in place at the time of Snepp.

I. The Background to Snepp

The prepublication review system in place when Snepp was decided in 1980 is nothing like the one that today restricts the speech of many millions of current and former government employees. Prepublication review began in the 1950s as a small and casual system in the Central Intelligence Agency and the National Security Agency. With the increase in writing by current and former officials amidst the 1970s upheavals sparked by Watergate and the Church Commission, the CIA in the late 1970s established a Publication Review Board to review the writings of current and former agency officials. In 1980, the year Snepp was decided, only 148 publications were submitted for review.

The Snepp decision grew out of former CIA analyst Frank Snepp’s publication of a book about CIA activities that Snepp declined to submit to the Publication Review Board. Snepp thus defied his employment contract pledge to “not . . . publish . . . any information or material relating to the [CIA], its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the [CIA].” The Government sued Snepp to enforce the agreement and obtain a constructive trust for the Government’s benefit on Snepp’s profits. The district court enjoined Snepp from future breaches of his secrecy agreements, imposed the requested constructive trust, and dismissed in a few sentences a claim that Snepp had raised under the First Amendment. The Fourth Circuit also rejected Snepp’s First Amendment argument. But it declined to impose a constructive trust and reversed the district court on that issue.

Snepp filed a petition for a writ of certiorari that raised the issue of whether a “system of prior restraint sanctioned by the court of appeals impermissibly burdens the First Amendment rights of thousands of government employees and the public.” The government opposed the petition but filed (separately) a cross-petition conditioned on the grant of Snepp’s petition. The government’s cross-petition stated that “the contract remedy provided by the court of appeals appear[ed] to be sufficient . . . to protect the [CIA’s] interest.” The only reason for filing the cross-petition, the government explained, was so the Supreme Court “may review the entire judgment of the court of appeals” if it granted Snepp’s petition. The government made clear that, “[i]f [Snepp’s] petition . . . is denied, this petition should also be denied.” The constructive trust issue, the government made clear, was not independently certworthy.

II. Snepp’s Illegitimacy

“What this Court did next was highly irregular,” as our brief says. Three months after cert-stage briefing closed, the Court issued a per curiam opinion without oral argument and without any merits briefing. The Supreme Court summarily reversed the Fourth Circuit on the constructive trust issue that the government said did not warrant independent review, and, in a footnote in the procedural history section of the opinion, it addressed the issue on which Snepp had sought certiorari. The totality of the Court’s First Amendment “analysis,” in footnote 3, is as follows (citations omitted):

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

These three sentences became the sole foundation of all subsequent First Amendment scrutiny of prepublication review.

What made Snepp’s First Amendment discussion irregular was not (just) that it occurred as a brief aside in a per curiam summary reversal on another issue (the constructive trust). As Justice Stevens explained in his three-Justice dissent, the decision contained other “unprecedented” elements.

Justice Stevens noted that the majority “obviously does not believe that Snepp’s claims merit this Court’s consideration, for they are summarily dismissed in a footnote.” The Court’s cursory treatment of the First Amendment issue, Stevens added, makes “clear that Snepp’s petition would not have been granted on its own merits.” Against this background, Stevens argued that it was “highly inappropriate” for the Supreme Court to “grant the Government’s” conditional cross-petition while “in essence” denying Snepp’s petition. In other words, it was inappropriate to grant Snepp’s petition, which was independently uncertworthy, only to reach an issue that the government said in its cross-petition need not be reviewed, since its interests were adequately protected on other grounds. The Court had “reach[ed] out to decide a question not necessarily presented to it.”

The context of these untoward procedural shenanigans made them much worse, since the Court in its throwaway footnote “fashioned” a “drastic new remedy . . . to enforce a species of prior restraint on a citizen’s right to criticize his government.” Justice Stevens accurately predicted how the government would deploy the new “reasonableness” standard for prior restraints: “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.” Justice Stevens acknowledged “the national interest in maintaining an effective intelligence service” and the possible need for some system of prior restraint. But he bemoaned the fact that this critical First Amendment issue was decided “in the absence of full briefing and argument.”

So too did Archibald Cox in the Harvard Law Review. “One would have supposed that the extent of the government’s authority to silence its officials and employees and thereby deprive the public of access to information about government activity was not too obvious to deserve deliberate judicial consideration,” he said. Diane Orentlicher noted at the time that the majority’s “summary treatment of the first amendment issues raised by Snepp and its decision to forego oral argument and briefs are particularly noteworthy in view of the fact that Snepp was the first occasion on which the Supreme Court considered the enforceability of the CIA secrecy agreement.” Unfortunately, it was also the last occasion on which the Court addressed the issue. For over four decades, Snepp’s footnote has governed.

* * *

We have not said a word in this post, and we do not say a word in our brief, about how out of step Snepp’s “reasonableness” test is with the Court’s First Amendment, and especially its prior restraint, jurisprudence. That issue is fully covered in the petition. The emphasis in our amicus brief is on the procedural context of Snepp and the decision’s original legitimacy. One would think that the colossal system of prior restraint that inheres in the government’s prepublication review system “would have been subject to careful scrutiny from this Court,” the Introduction to our brief notes. This is especially so since, as the Supreme Court has emphasized, “[a]ny system of prior restraint . . . bear[s] a heavy presumption against its constitutional validity. To the contrary, as our brief explains, “the federal government’s publication-review edifice rests on the shakiest of judicial foundations: a footnote in the procedural history section of a case this Court decided without merits briefing or oral argument.” This is one important reason why “Snepp’s drive-by constitutional ruling should not be the last word on this vitally important issue.”