U.S. Consistently Circumvents Whistleblowers’ Rights to Free Expression by Use of Contract Law (By Eric Harvey)
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In its pursuit of whistleblowers, the United States has circumvented 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 curtailing 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 Snepp v. United States, 444 U.S. 507 (1980), where the American government petitioned the U.S. Supreme Court for an enjoinder against former Vietnam War-era CIA interrogator Frank Warren Snepp, III, after his release of Decent Interval, 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.
In other words, when it comes to former government employees-turned-authorial-whistleblowers, compliance with contractual agreements trumps freedom of expression and press.