holding that “neither the CIA’s administrative determination nor any court order in this case constitutes a prior restraint in the traditional sense upon [the plaintiff] or any other party”
How later courts described this case
- holding that “neither the CIA’s administrative determination nor any court order in this case constitutes a prior restraint in the traditional sense upon [the plaintiff] or any other party”
- holding in FOIA context that courts should "defer to CIA judgment as to the harmful results of publication" and apply the "presumption of regularity" if a rational explanation for classification is offered
- recognizing that “a litigant seeking release of government information under FOIA ... relies upon a statutory entitlement ... and not upon his constitutional right to free expression”
- holding that Agency employee retains “a strong first amendment interest in ensuring that CIA censorship of his [work] results from a proper classification of the censored portions”
Written by the judges who cited it.
The opinion
MacKINNON, Senior Circuit Judge
(concurring specially):
I concur generally in the foregoing opinion but not wholly in the statement in n. 22 that under Snepp v. United States, supra, there is an essential difference between upholding the secrecy agreement as to the classified information here and a case where the government might seek a prepublication injunction of the same information. In the first place, the statement in footnote 22 is not necessary to the decision of this case. Second, to my mind the two types of cases are essentially the same and the citation in support of that distinction provides weak support for the assertion. See Snepp v. United States, 444 U.S. at 513, n. 8, 100 S.Ct. at 767, n. 8.
The cited footnote in Snepp merely states that absent an arrival at a good-faith agreement between the Central Intelligence Agency and Snepp under the agency’s clearance procedure, “the Agency would have borne the burden of seeking an injunction against publication.” Id. (citations omitted). Thus the Court’s language said nothing of the weight of that burden, and certainly did not mandate “a much heavier *1151 burden,” as Judge Wald’s footnote 22 would have us believe. Any party seeking any injunction bears some burden. I would consider that enforcement of McGehee’s voluntary contractual agreement not to reveal classified information is more akin to the right of an author to enjoin the publication of copyrighted matter. In Westermann Co. v. Dispatch Co., 249 U.S. 100 , 39 S.Ct. 194 , 63 L.Ed. 499 (1919), the Supreme Court did not interfere with a district court injunction against the future infringement of certain copyrighted matter. Federal statutes also specifically authorize the issuance and enforcement of injunctions to restrain infringement of a copyright. 17 U.S.C. § 502 , 90 Stat. 2584 . See, e.g., Dodd, Mead & Co. v. Lilienthal, 514 F.Supp. 105 (S.D.N.Y.1981) (injunction granted: no first amendment right to breach exclusive publication contract); Encyclopaedia Brittanica, etc. v. Crooks, 447 F.Supp. 243 (W.D.N.Y.1978).
Footnote 22 also cites New York Times Co. v. United States, 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971), but the concurring opinions of Justices Stewart and White in that case narrow their concurrence with respect to the absolute nature of the restriction on prior restraint. 403 U.S. at 729-730, 731, 737 , 91 S.Ct. at 2149, 2150, 2153 . Justice Stewart remarked:
[I]t is clear to me that it is the constitutional duty of the Executive — as a matter of sovereign prerogative and not as a matter of law as the courts know law— through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.
403 U.S. at 729-30 , 91 S.Ct. at 2149 . Justice Stewart further indicated that the standard for injunction of publication of such allegedly damaging documents was whether their publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” 403 U.S. at 730 , 91 S.Ct. at 2149 . The various opinions in New York Times, which involved the so-called Pentagon Papers, draw distinctions between publishing matter that affects the “national interest” and matter that affects “national security.” Justice White’s remarks also indicate that the newspapers were not expected to publish all the material in the Pentagon Papers: “... a responsible press may choose never to publish the more sensitive materials.” 403 U.S. at 733 , 91 S.Ct. at 2151 . Justice White refers to the same material referred to in my separate opinion in United States v. Washington Post Company, 446 F.2d 1327, 1329 (1971):
[B]y agreement of the parties some of the documents will be protected ....
446 F.2d at 1329 . (MacKinnon, J.). Thus, the decision in the Pentagon Papers case is not as absolute a prohibition against prior restraint as some assert. As Justice Brennan remarked, it is only an absolute bar to the imposition of judicial restraints in circumstances of the kind presented in those cases — where the attempt to restrain the press was “predicated upon surmise or conjecture that untoward consequences may result.” 403 U.S. at 725-26 , 91 S.Ct. at 2147 .