Amicus Curiae Brief — Marchetti v. United States

No% 2-482

VICTOR L. MARCHETTI,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF THE AUTHORS LEAGUE OF

AMERICA, INC. AS AMICUS CURIAE

IRWIN KARP

Attorney for the Authors League

of America, Inc., as Amicus Curiae

120 Broadway

New York, New York 10005

TABLE OF CONTENTS

PAGE

Interest of The Authors League ................ 1

EY CD oc chs hs csebeaneaneendewe 1

PoInT I—Judicial Enforcement of the Contract is

Limited by the First Amendment ............. 2

Point II—The System of Prior Restraint Imposed

by the Injunction Infringes the Public’s First

Amendment Right to be Informed ............ 4

TET Seer ere or errr re 7

AUTHORITIES CITED

Cases:

Barrows v. Jackson, 346 U.S. 249 (1953)...... 2,3

Freedman v. Maryland, 380 U.S. 51 (1965).... 5

Hannegan v. Esquire, Inc., 327 U.S. 146 (1946) 3

New York Times Co. v. Sullivan, 376 U.S. 254

SD | Sgknedsboes nndedekusceeseeensenes 3

New York Times Co. v. United States, 403 U.S.

PE Subdvin kevbadeuaseseeuexnpken sean 2

Shelley v. Kraemer, 334 U.S. 1 (1948)........ 2,3

Time, Inc. v. Hill, 385 U.S. 374 (1967)......... 3

Tinker v. Des Moines School District, 393 U.S.

Se SE ctadawkewechadvkees ue we eiacnes 3

IN THE

Supreme Court of the United States

October Term, 1972

No. 72-482

Victor L. MARCHETTI,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

. Respondent.

ai.

af

BRIEF OF THE AUTHORS LEAGUE OF

AMERICA, INC. AS AMICUS CURIAE

Interest of The Authors League

The Authors League of America is a national society of

professional writers. One of its principal concerns is the

preservation of freedom of expression. The Authors League

believes that the Injunction sustained by the Court of

Appeals is a grave encroachment on the First Amendment

freedoms of authors, publishers and the public.

Preliminary Statement

The Court of Appeals sustained the District Court order

prohibiting Petitioner, who resigned from the Central

Intelligence Agency three years ago, from submitting to

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publishers (or anyone else) any book or article about the

CIA, intelligence activities or sources — unless the CIA has

reviewed the manuscript and approved its release. The

injunction, as modified by the Court of Appeals, subjects

Mr. Marchetti to the CIA’s prior censorship over any

manuscript he has written or may write on these subjects,

The Petitioner’s brief establishes the corrosive effects of

the injunction on First Amendment rights. We agree, for

the reasons in his brief, that the injunction and the decision

of the Court of Appeals violate these rights (New York

Times Co. v. United States, 403 U.S. 713 (1971) ; and that

certiorari should be granted.

This brief is addressed to the point that the only real

effect of the injunction is to infringe the public’s First

Amendment right to be informed by a former employee of

one of its agencies, by imposing prior censorship that does

not increase the protection of national security to any ap-

preciable or practical extent.

POINT I

Judicial Enforcement of the Contract is Limited by

the First Amendment.

The Court of Appeals agreed that the First Amendment

barred the Congress and Executive agencies from imposing

by contract and injunction, restraints on free speech that

they could not constitutionally establish by statute or regu-

tion. In Shelly v. Kraemer, 334 U.S. 1, 17 (1948) and

Barrows v. Jackson, 346 U.S. 249 (1953) the Court ruled

that judges may not issue injunctions (or award damages)

to enforce contractual restraints on rights guaranteed by

3

the Bill of Rights. This prohibition applies, as do the other

safeguards of the First Amendment, to executive and ad-

ministrative agencies. Hannegan v. Esquire, Inc., 327 U.S.

146 (1946) ; Tinker v. Des Moines School District, 393 U.S.

503, 507 (1969).

The Court of Appeais also agreed that the Petitioner did

not “waive” his First Amendment rights to speak or write

about the CIA by signing the secrecy agreements. In

reality there was no waiver because the Petitioner was

bound to accept these restrictions, as he would have been

had they been imposed by regulation. Moreover, the courts

would be barred under Shelly v. Kraemer and Barrows v.

Jackson, supra, from issuing an injunction which restrained

First Amendment rights, to enforce the contract, even if

the agreement were a “waiver”.

Finally, and most important, the First Amendment

rights at stake are not solely Petitioner’s; and he did not

have the power to “waive” them. As the Court emphasized

in Time, Inc. v. Hill, 385 U.S. 374 (1967), the guarantees

of the First Amendment “are not for the benefit of the

press so much as for the benefit of all of us. A broadly

defined freedom of the press assures the maintenance of

our political system and an open society.” (p. 389). The

First Amendment protects Mr. Marchetti’s freedom to

write and publish information about the CIA for the bene-

fit of all of us, to “assure unfettered interchange of ideas

for the bringing about of political and social changes de-

sired by the people.” (New York Times Co. v. Sullivan,

376 U.S. 254, 269 (1964)). The First Amendment rights

at stake, being “for the benefit of all us”, were not Mr.

Marchetti’s to waive, even if he agreed to do so. While _

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cane Oe pee ew Wiliet cate -

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the Court of Appeals held that enforcement of the contract

was governed by the First Amendment, it concluded that

the Amendment does not bar prior censorship of the writ-

ings of former public servants, whether established by

statute or contract, to prevent the disclosure of “classified”

information.

The System of Prior Restraint Imposed by the In-

junction Infringes the Public's First Amendment Right

to be Informed.

Infringement of the public’s First Amendment right to

be informed ‘and Petitioner's freedom to publish) are the

only practical ‘results of the system of prior censorship

established by the injunction, as sustained by the Court of

Appeals. This drastic exception to the Amendment's pro-

hibition of prior censorship could not accomplish any

meaningful increase in national security, certainly none

that could warrant the sacrifice of First Amendment rights,

even if they must justify their worth under a “balancing”

test.

The public is entitled to read information and discus-

sion about its agencies, especially those so vital to its

interests as the CIA. Perhaps the most useful source of

such information, discussion, and criticism, is the writings

of former government employees; by Presidents Truman,

Eisenhower and Johnson, by advisers to former Presidents,

by officials of the CIA and other highly placed public

servants. They have written books and articles which con-

tained information about “the Central Intelligence Agency,

intelligence, intelligence activities. or intelligence sources

and methods” — the subjects covered by the injunction.

Their writings have described CIA activities in connection

with the “Bay of Pigs”, uprising in Iran, and other matters

of public interest; and have disclosed information not

previouly made known to the public. Under the Circuit

Court's decision, the Government could extend the system

of prior censorship to most of these former officials, by

contract or statute.

Actually, protection against disclosure by these officials

of information harmful to the security of the United States

has depended on statutes which punish certain disclosures,

after they are made ‘e.g. Espionage Acts.) ; and the good

faith and common sense of the officials. From a First

Amendment viewpoint, nothing more should be permitted ;

from a practical viewpoint, nothing further — ie. prior

censorship — is worth the cost it exacts. Prior censorship

is objectionable because it permits officials, deliberately,

negligently, or from an excess of caution— to suppress

information the public is entitled to have; and because the

whole mechanism, including limited judicial review under

vague standards, has a chilling effect on publication.°

The harmful effects of prior censorsh.p of the writings of

former government officials and employees cannot be

justified on “practical” grounds. Certainly it is not practi-

cal to assume that a former employee can be prevented

from disclosing “sensitive” information to an unfriendly

power by a contractual ban and an injunction. Obviously,

* Even assuming taat some measure of prict screening were

compatible with the First Amendment, the system embodied in

the injunction is, a» Petitioner notes, completely lacking im the

ison and safeguards required under Freedman v. Maryland.

a0 U.S. 51 (1905).

if he wanted to communicate that information to a foreign

government, he would not publish a book; he would use

more private means that do not give the United States the

opportunity to seek, or enforce an injunction.

Former officials may disseminate information by speech -

to individuals, to reporters and other writers, to lecture

audiences and in “live” interviews to television audiences.

Unless the Government obtained a broad injunction against

every employee who signed a secrecy contract, as soon as

he retired, and kept him under constant watch, it could

not prevent him—by injunction or other “prior restraint”

— from orally communicating, without prior warning, in-

formation of the sort that Mr. Marchetti wishes to publish,

and other former officials have published in books. The

information would thus be available to other countries: a

restraint on publication would only limit its effective dis-

semination to the American public.

Moreover, an ex-employee could avoid prior censorship

through injunction, by taking himself and the information

in his head to another country, and writing and publishing

his book there. Under the Court of Appeals’ decision, he

might be enjoined from distributing the book in the United

States. But again, foreign readers and unfriendly govern-

ments would have the material; and the only restraint

would be on the right of the American public to receive the

_ information.

We respectfully submit that prior censorship of the books -

or other writings of former government employees is

utterly repugnant to the letter and spirit of the First

Amendment. In the last analysis, the overwhelming ac-

complishment of prior censorship is destruction or curtail-

7

ment of the public's right to know, and this damage to the

foundation on which our democratic society depends, far

outweighs any limited protection of “security” that might

be claimed for prior censorship.

It is respectfully submitted that the Petition for

Certiorari should be granted.

Respectfully submitted,

Irwin KARP

Attorney for the Authors League

of America, Inc., as Amicus Curiae

120 Broadway

New York, New York 10005