Free Speech and Its Prior Restraint

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By Professor Victoria Sutton

September 29, 2025

Opinion. Publishing tell-all books is a common practice in Washington, D.C. where it pays to share secrets or insider information about familiar events of national notoriety. Typically there is a book contract negotiated while it is still a valuable property, and then writing and editing follow.

However, for those who work in the intelligence field, and in this case the Central Intelligence Agency, there is a pre-agreement that requires a pre-publication review of National Security Information (NSI). This is a lifelong agreement and covers anything that falls within the definition of classified information as defined by an Executive Order.

In 1976, a CIA employee named Snepp, in addition to his pre-publication agreement, also executed a “termination secrecy agreement” when he was leaving his job at the Agency. That agreement affirmed his agreement “never” to reveal “any classified information, or any information concerning intelligence or CIA that has not been made public by CIA . . . without the express written consent of the Director of Central Intelligence or his representative.”

Snepp petitioned the U.S. Supreme Court to review the lower court’s decision, In his petition for certiorari, Snepp relied primarily on the claim that his agreement is unenforceable as a prior restraint on protected speech. Snepp argued that this pre-publication agreement was a prior-restraint against free speech, and as in Near v. Minnesota, there was a clear presumption against prior restraint.

In a U.S. Supreme Court case in 1931, Near v. Minnesota, a state law was used to try to shut down a newspaper deemed “malicious, scandalous, and defamatory” and the court held that this prior restraint on speech was a violation of the First Amendment, Freedom of Speech clause. That is, you cannot punish future speech. This landmark case established a presumption against prior restraint of speech.

In Snepp, the publication involved national security information. So, the court carved out an exception for national security and prior restraint on speech.

The dissent (Stevens, Brennan, Marshall) disagreed, writing,

“the Court seems unaware of the fact that its drastic new remedy has been fashioned to enforce a species of prior restraint on a citizen’s right to criticize his government. Inherent in this prior restraint is the risk that 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.

The character of the covenant as a prior restraint on free speech surely imposes an especially heavy burden on the censor to justify the remedy it seeks. It would take more than the Court has written to persuade me that that burden has been met.”

The dissent saw this more as a constructive trust case, and that a trust had been created when Snepp was given access to national security information. The remedy for violating a constructive trust is disgorgement of the benefits. The court wrote:

“If the agent publishes unreviewed material in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness.”

So the punishment for violation of this agreement is forfeiting the profits from the book.

In a case styled, U.S. v. Ishmael Jones (a pseudonym), the government writes in their recitation of the facts: the CIA denied defendant permission to publish the manuscript; and that defendant published it anyway. The complaint alleges that this conduct breached the defendant's contractual obligations to the United States under defendant’s Secrecy Agreement and his common law fiduciary duties to his employer.

Ishmael Jones had submitted two versions of the book for prepublication review. He alleges the agency board drug their feet on the review, and then disapproved of the first version and only partially reviewed the second version. Ishmael Jones published the book, anyway, in 2008. The court said he should have gone to court rather than just publish the denied book.

The Agency then calculated damages in the final resolution, apparently.

Then in 2012, John Kiriakou published a book entitled, The Reluctant Spy. In this case, the Agency made a criminal complaint and among the five counts, alleged that Kiriakou divulged to journalists the role of an associate who played a role in the capture of Al Qaeda financier Abu Zubaydah in the months before the September 11, 2001 terrorist attacks. This was classified information as to his identity.

Another claim in the complaint accuses Kiriakou of also disclosing a covert officer’s name to an unidentified journalist. This came to light in the sealed legal brief for a detainee at the Guantanamo Bay, Cuba, facility.

On October 22, 2012, Kiriakou agreed to plead guilty to passing classified information to the media thereby violating the Intelligence Identities Protection Act. January 25, 2013, Kiriakou was sentenced to 30 months in prison.

Technically, the book triggered the filing of these criminal charges, resulting in his imprisonment.

The next book to raise publication issues was Matt Bissonnette’s No Easy Day: The Firsthand Account of the Mission that Killed Osama bin Laden (2012). As a Navy Seal, Matt Bissonnette had also signed a prepublication agreement. However, he failed to have his book reviewed at all, before publication. A Pentagon spokesman, George Little, told reporters that the book included sensitive and classified information contained in the book, and that “It is the height of irresponsibility not to have this material checked.”

In a settlement, filed in a Virginia federal district court, Matt agreed to pay $6.6 million dollars from book sales, and fines of $100,000 for presentations that included non-approved slides from the government.

Most recently, John Bolton was obligated to submit his book, The Room Where it Happened (2020), because of comparable prepublication agreements, as a presidential appointee (National Security Advisor). In addition he would have signed a Form 4414 that requires a prepublication review of “any writing or other preparation in any form, including a work of fiction, that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that [the individual has] reason to believe are derived from SCI.” Further, Instruction 80.04 requires a prepublication review of “all official and non-official information intended for publication that discusses the ODNI, the IC [Intelligence Community], or national security.”

There was some effort to prevent the publication of Bolton’s book claiming it still contained classified information, but it published without further claims in

Final thoughts

The protection of national security information is critical, and as the government argued that without prepublication, foreign governments might be reluctant to share information and sources. However, it can also have a chilling effect on criticism of the government for waste, fraud and abuse, and a myriad of other issues that transparency might cure. It also requires the good faith of the prepublication board to be timely in their reviews without intentional delays to cover perhaps governmental abuses that the book might reveal. Hopefully the good faith of the agencies will make as much publication of this information possible in the future.

To read more articles by Professor Sutton go to: https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is Director of the Center for Biodefense, Law & Public Policy and an Associated Faculty Member of The Military Law Center of Texas Tech University School of Law.