In an article in today’s Guardian, I read that the punishment of US whistleblower Reality Winner (pictured right) was not only a conviction and sentence to 63 months in prison, but also a prohibition that she “can never be paid for telling her life story – whether in a book or through the several movies that have been made about her”. This rings three bells for me.
First, in the summer of 1977, New York was terrorized by a serial killer calling himself Son of Sam, who was identified as David Berkowitz and apprehended. Given his notoriety, the rights to his story were worth a great deal of money. As a consequence, New York enacted legislation requiring a publisher contracting with a person “accused or convicted of a crime” for the production of a book describing the crime to pay to the Crime Victims Board any money owed to that person under the contract. The Board would then use that money to compensate victims of crime. Simon & Schuster contracted to publish Wiseguy: Life in a Mafia Family (1985), a book about the life of admitted organized crime figure Henry Hill, written by Nicholas Pileggi, with paid assistance from Hill. When this came to the Board’s attention, they ordered Simon & Schuster to turn over all money payable to Hill.
In Simon & Schuster v Crime Victims Board 502 US 105 (1991), the Supreme Court struck down the New York legislation. O’Connor J (Rhenquist CJ, and White, Stevens, Scalia and Souter JJ, concurring) held that it was inconsistent with the First Amendment. It singled out speech on a particular subject for a financial burden that it placed on no other speech and no other income. And it was not narrowly tailored to achieve the State’s objective of compensating victims from the profits of crime.
To the extent that the prohibition on Winner derives from a statute (such as 18 USC § 793(h)(1) (the Espionage Act 1917)), Simon & Schuster suggests that the statute raises First Amendment concerns. Certainly, it singles out speech on a particular subject for a financial burden that it places on no other speech and no other income. However, Winner had leaked a classified intelligence report, which raises the State’s objective of protecting national security, clearly a stronger interest than compensating victims of crime, and one where there is often greater deference by the Courts in holding that legislation is narrowly tailored to serve that interest (cp Haig v Agee 435 US 280 (1981)), though there are limits to that deference (cp New York Times v United States 403 US 713 (1971)). So, the national security concerns may differentiate Winner’s case from Simon & Schuster, and be sufficient to uphold the prohibitions upon her here.
And that leads to the second bell. In Snepp v United States 444 US 507 (1980) (noted here and here on this blog), the US government relied on a private law claim to a constructive trust over the profits of a book by Frank Snepp about his time with the Central Intelligence Agency in Vietnam, rather than on legislation. In a First Amendment challenge, the Supreme Court upheld the trust, in part because the publication raised the State’s objective of protecting national security. Snepp had agreed not to publish a book without the Agency’s clearance in advance of publication. The Court held that the constructive trust as a remedy for breach of that agreement, and as a reliable deterrent against similar breaches of security, did not infringe Snepp’s First Amendment rights. The government had a substantial government interest in national security, and the agreement that Snepp signed was a reasonable means for protecting this vital interest. If this standard of scrutiny is applied to the legislative basis for the prohibition on Winner, the government here would plainly have a substantial interest in national security, and it would be an open question whether the prohibition amounts to a reasonable means for protecting this vital interest. “Reasonable” is quite a low bar, and I think it highly likely that US courts at present would hold that a provision that someone who leaked classified documents “can never be paid for telling her life story” is a reasonable means for protecting national security. Hence, to the extent that the prohibition on Winner derives from a pre-clearance agreement, Snepp suggests that national security concerns would still be sufficient to uphold the prohibitions upon Winner here.
By way of comparison, in Attorney General v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000), George Blake published his book No Other Choice (1990), about his time as a Russian mole in MI6 and his subsequent dramatic escape from prison, without getting pre-clearance. The Attorney General made various public law and private law claims to the profits of the book on various public law and private law grounds, and succeed before the House of Lords on the ground that the failure to obtain pre-clearance was a breach of contract giving rise to an account of profits.
Moreover, in R v Attorney-General for England and Wales [2003] UKPC 22 (17 March 2003), the Privy Council held that, in the ordinary course of events, pressure to sign such a pre-clearance agreement will not amount to duress sufficient to render the agreement voidable. However, in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 (18 April 2018) the UK Supreme Court held that the Blake account of profits was confined to exceptional case where other remedies were inadequate, and that Blake was an exceptional case where the State had a legitimate interest in national security to deprive the defendant of his profits.
Meanwhile, in Blake v United Kingdom 68890/01, (25 October 2005) (pdf) the European Court of Human Rights held that the interference with the applicant’s freedom of expression was not disproportionate to the legitimate aim of the protection of national security, and thus declared the application to be manifestly-ill found and inadmissible.However, the Court did permit a claim that the domestic proceedings against Blake were not pursued with the diligence required by Article 6(1) to proceed, and that claim was eventually successful (68890/01, [2006] ECHR 805 (26 September 2006)).
Hence, even if is not the basis of a general remedy of account of profits for breach of contract, Blake stands with Snepp as demonstrating that proportionate or reasonable profit-stripping remedies for publications in breach of National Security will not breach applicable free speech guarantees.
Third, on the one hand, Matt Bissonette published his book No Easy Day (2012), about his role as a US Navy Seal in the raid that killed Osama Bin Laden, without getting pre-clearance. The Department of Justice claimed the profits of the book, and the claim was settled by the payment of $7m profits accrued, and an agreement to forfeit all profits and royalties, as well as film rights and speaking fees. On the other hand, John Bolton published his book The Room Where it Happened (2020), about his time as National Security Advisor to President Donald Trump, without getting pre-clearance. Nevertheless, in 2021, the US Department of Justice dropped a claim to the profits of the book.
In all of this, the contrast between Bolton, on the one hand, and Snepp, Bissonette and Winner, on the other, is stark. The article in today’s Guardian was making the case that Winner should be pardoned. If she is, it will be interesting to see if the prohibition that she “can never be paid for telling her life story” is lifted too.