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Wednesday, Nov. 15, 2000

Under current law, the silence of both government and private employees can usually be accomplished easily; criminal penalties are unnecessary. This silence is effected by contracts that themselves incorporate harsh civil penalties. And it is enforced by civil suits that enforce these contracts, which employees can bring against both the "leaker" and the news outlet that seeks to publish the "leaked" information. Or else, it is enforced simply by the threat that such suits will be brought and will bankrupt the individual "leaker" — a threat that creates a chilling effect, the result of which is coerced silence.

As a society, we should outlaw many of these contracts requiring silence — or at a minimum, outlaw the broadest and most oppressive of them — but so far we have not even seriously considered doing so.

Government Contracts for Silence: A Failed First Amendment Challenge

As far as government employees are concerned, a significant battle over contracts for silence was already lost twenty years ago, in the case of Snepp v. United States.

In that decision, the Supreme Court held that a former CIA agent’s confidentiality contract with the Agency was fully enforceable, even to the extent that it reached non-classified material. The Court therefore affirmed an order impounding the profits from the agent’s forthcoming book - despite the CIA’s concession that none of the information in the book was classified.

Because the book did not contain any classified information, the CIA had to rely solely on its contract with the agent, Snepp, in court. The contract went much further than relevant statutes that punished the release of classified information did. Specifically, the contract provided for the Agency’s pre-publication review not just of classified material, but more broadly of "any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [the agent’s] employment."

The contract also provided that no such material could be published "without specific prior approval by the Agency." Since Snepp had not submitted his manuscript for prior review and approval, the CIA argued that he had violated the contract and that his book profits were properly impounded by the lower court.

Under First Amendment doctrine, the type of pre-publication review that the CIA sought to conduct is a classic "prior restraint," specially disfavored by courts on the ground that it is tantamount to censorship. Nevertheless, the Court upheld the contract.

In his dissent, Justice John Paul Stevens (joined by Justices Marshall and Brennan) suggested that the covenant that allowed pre-publication review by the CIA was not valid. He argued that this covenant probably should be stricken from the contract, pursuant to the rule of reason — a common law doctrine under which a court may balance the interests of employees and employers, when construing contracts that restrain employees for working or speaking, and effectively rewrite contracts that are overly restrictive of employees’ rights.

However, Justice Stevens’ view — and the First Amendment — lost the day. And the situation for employees of private corporations, who are not even protected by the First Amendment in their dealings with their employers, is if anything, worse.

Contracting For Silence in the Private Sector: The Case of Richard Blow

Richard Blow, the former George editor whose $750,000 contract for a book about John F. Kennedy Jr. was cancelled last summer — apparently because of the threat of legal action based upon a confidentiality agreement Blow had signed — may have some empathy for Snepp’s plight. Like Snepp, he too lost all the profits he would have garnered from his book because of a contract that attempted to guarantee a broad and complete silence and went far beyond background law that would otherwise have applied.

As reported by Abigail Pogrebin in Brill’s Content, Blow faced harsh criticism from many of his colleagues and others for his decision to publish, despite the agreement and after JFK Jr.’s death. But was the harshness really merited?

Background laws imposing fiduciary duties on employees not to disclose trade secrets and other confidential information, guarding against libel and ensuring privacy, already protected George and JFK Jr. before Blow’s contract was ever signed. Thus, the contractual promise that was exacted from Blow as a condition of his working at George was clearly meant to go further — and it did.

Specifically, as Pogrebin reported, Blow’s agreement prohibited him from disclosing "any financial, proprietary, or confidential information related to GEORGE or its Co-founders, or any personal information related to the Co-founders" — including, of course, JFK Jr.

In exacting this promise from his employees, celebrity-journalist JFK Jr.was much more celebrity than journalist. As a journalist, JFK Jr. himself was not above writing about those with whom he had personal connections and private knowledge: In one editor’s note, he famously criticized his own cousins’ foibles. And any journalist’s attempt to silence other writers must inherently be suspect — journalists are supposed to fight limits on speech, not impose them. But as a celebrity, JFK Jr. not only understandably sought silence and privacy, he went further, seeking to ensure them by contract if he could.

Still, should JFK Jr. really be faulted? Blow could have refused to sign the contract, after all — or could he? When such covenants of confidentiality are common, refusal to sign becomes a sine qua non of employment. Worse, he (or she) who refuses to sign is marked as a traitor, a leak just waiting to spring. The contract becomes a sort of loyalty oath. And for journalists, of all people, to be offered loyalty oaths is frightening. The Fourth Estate helped defeat McCarthy in the end; but McCarthyism within the Fourth Estate might prevent that kind of policing.

How the Law Can Help Employees Recapture the Right to Speak and Write

In addition, employers, usually wealthier and with far more access to legal representation than their employees, are well-placed to avail themselves of traditional legal recourses. They exact further contractual promises not because they must, but because they can. Such promises have a special power to zipper employees’ lips, even where what they would say would be entirely legal — for the promises can be accompanied by automatic penalties of cash forfeitures so high any individual would balk at risking them, even for the public good.

In short, the extra protection and confidentiality employers might coerce by contract is unnecessary for them; they receive sufficient protection from background law that protects them regardless of whether a contract is signed. And such contracts are oppressive for the employees who must sign their free speech rights away. Control of what one may write is only a step away from control of what one may think. And discretion may be proper, but it should be earned, not bought. Loyalty, similarly, should not be required but inspired.

Finally, the rights at issue are not just those of writers and speakers, but those of readers and citizens who want to be informed. Society is poorer for the stories that, because of contracts, are untold; for the writers whose works, because of contracts, remain undone; and for the loss of the valuable information (from evidence of tobacco company wrongs, to the Pentagon Papers) that comes from what we refer to pejoratively as "leaks."

In vetoing the recent "leaks" bill, President Clinton implicitly recognized that for our society to function, employees should sometimes be able to speak even when their employers may most want to muzzle them. We should follow this principle more generally, and outlaw the muzzles that confidentiality contracts impose, too.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998, and is working on a novel.

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