Reading Room Document

Constitutionality of Regulations Requiring Prepublication Clearance of Books by Former Iranian Hostages

Under the Supreme Court's holding in Snepp v. United States, 444 U.S. 507 (1980), the broad prepublication clearance requirements in regulations of the International Communications Agency (ICA) would be held unenforceable through judicial process in a wide variety of applications, notably insofar as they apply to previously disclosed information or to the expression of personal opinions by persons who do not regularly have access to classified information. The Supreme Court is not likely to uphold a prior restraint on publication by ICA employees in the absence of some powerful showing that substantial and specific harm to the United States would probably result if the publication were permitted. The expression of personal opinion not based on classified information would not satisfy this test. While the issue is not free from doubt, a strong argument can be made that disciplinary action against an employee based on the need for a foreign policy free from internal dissension in the Foreign Service would not be constitutionally impermissible, particularly if the employee maintained responsibilities at a highly visible level. However, the courts might find discipline involving discharge appropriate only if the statements ultimately made severely and irreparably impaired an individual's ability to perform some services as an employee. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/22666/download.

June 11, 1981