Saigon was the capital of South Vietnam, and its fall to the North Vietnamese 40 years ago this week, on 30 April 1975, effectively ended the Vietnam War. The image, left, is often taken as panic-stricken US citizens on the roof of the US Embassy trying to board the last helicopter out of Saigon. In fact, although there Many images images of the Embassy on that fateful day, the building in this famous photo is an apartment complex at 22 Gia Long Street; the people fleeing are Vietnamese; it was taken on 29 April; and the last helicopter took off at 07:53am the following day. Saigon is now Ho Chi Minh City, the largest city in the Socialist Republic of Viet Nam, where the war now seems like a very distant memory, the US has been slower to learn the foreign policy lessons.

Reading about this anniversary this week brought to mind the case of Snepp v US 444 US 507 (1980). Frank Snepp was a member of the CIA in Saigon during the Vietnam War, and was one of the last Americans to leave the city as it fell to the North Vietnamese in 1975. The fall of the city and the evacuation of the Embassy was, he said, “of the most shameful moments I’ve ever lived through”. Moreover, “[a]fter experiencing the collapse of Saigon firsthand, … [he] quit the CIA in a fit of anguish” (Time magazine called it “the last grim goodbye”). Two years later, he published a confessional account of these experiences: Decent Interval: An Insider’s Account of Saigon’s Indecent End Told by the CIA’s Chief Strategy Analyst in Vietnam (Random House, NY, 1977). It was prepared in total secrecy and published with great fanfare. In Snepp’s words, it dealt with “botched intelligence and the abandonment of … [the United States’] Vietnamese allies”.

However, in breach of his contract with the CIA, it had not been cleared by them in advance. The government sought to enforce the contract, and, by way of remedy for its breach, to recover from him the proceeds of the book by means of a constructive trust. The Federal District Court upheld the validity of the agreement and awarded the constructive trust over his proceeds (US v Snepp 456 F Supp 176 (ED Va, 1978)). The Court of Appeals for the Fourth Circuit unanimously upheld the agreement, for the breach of which the majority were prepared to award damages (including punitive damages) but not a constructive trust, whilst Hoffmann J in dissent was prepared to award the constructive trust but not punitive damages. (US v Snepp 595 F 2d 926 (4th Cir, 1979)). The Supreme Court, in an unsigned summary per curiam decision (probably written by Powell J, a WWII army intelligence officer), not only upheld the agreement but held that his failure to submit the book for prepublication review had breached a fiduciary obligation, and he therefore reinstated the severe remedy of the constructive trust which had been granted by Lewis J at first instance but denied on appeal. (Snepp v US 444 US 507 (1980)). Snepp says that the Government

set out to chill all potential whistle-blowers by seeking severe penalties against me … without any proof of damage to anybody.

The Supreme Court obliged them in spades. It declared that I had irrevocably damaged the country by creating the appearance of a CIA security meltdown and decreed that I be gagged for life — required to submit to agency screeners anything I might write about what I’d learned “as a result of” my government service, whatever that means. The government was also allowed to confiscate every cent I had earned from Decent Interval, including the equivalent of all the taxes I had already paid on those earnings. Profits from any reprints or film rights are also forfeited — forever.

Snepp wrote a further book about the court case: Irreperable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle Over Free Speech (Random House, NY, 1999). He now works as a television journalist and producer in Los Angeles. His name has become a verb: “to snepp” now means “to pre-clear a sensitive volume for publication”; The echo of the almost homophonous “to snip” must surely have helped this move. It sounds painful. Presumably, he had Irreperable Harm snepped before publication.

I have argued elsewhere is hard to justify the extent of the private law remedy in Snepp (Edelman; Jerian; McCamus; Rendleman; Note Yale LJ; Roberts: here, here and here; Whatley) – it is difficult to shake the impression that the urge to strip the Snepp of his profits was driven primarily by a visceral distaste for his revelations and only secondarily by doctrine. Moreover, applicable First Amendment principles are very faint in the per curiam, and it is even harder to justify the almost complete failure to consider the First Amendment (Anawalt; Charleson; Cheh; Chimes; Franck & Eisen; Kitrosser; Klein; Medow; Miovski; Orentlicher; Sandler; but cf Amiri; Seng; White). In these respects, it is very similar to the decision of the House of Lords in Attorney General v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). Snepp and Blake are a well-matched pair which went overboard on ill-reasoned private law remedies to the detriment of freedom of expression. In both cases, the remedies awarded in those cases, even if justifiable in private law terms, should then have been measured against applicable free speech standards. But this did not happen, probably because, as spies, they were very much the wrong people.