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Spies Like Us?

Frank Snepp and George Blake:


Freedom of Speech and Restitutionary Remedies

Current Legal Problems; 4 February 2010

Dr Eoin O’Dell*

1. Abstract
“Espionage is a serious business” sang a moderately famous Irish pop singer of the
1980s.1 And so it is. It can be even more of a business when former spies seek to
publish their memoirs, and things can get very serious indeed if they fail to seek the
clearance of their former spymasters in advance. The decisions of the Supreme Court
of the United States in Snepp v US2 and of the House of Lords in AG v Blake3 make a
fascinating pair of cases in which former spies (unsuccessfully) argued that a
restitutionary remedy against uncleared publication of their memoirs infringed their
speech rights.

In this paper, I want to do three things. First, I want to present a thorough analysis of
the stories behind the decisions. How the opinion for the Court in Snepp evolved is a
fascinating tale in its own right; so too are many elements of the Blake saga, not least
the question of where the Snepp-like remedy in that case actually came from. So, I
will begin with these stories, tales and sagas.

Second, I want to look at the legitimacy of the restitutionary remedies in the cases in
their own terms, and to suggest in particular that whilst there may be some legitimacy
to the remedy announced in Blake, there is none for that announced in Snepp.
Working out quite why this was so will help to clarify two difficult areas in the law of
restitution: how, if at all, the law of restitution can justify awarding restitutionary
damages for breach of contract, and proprietary remedies generally.

Third, I want to measure the remedies awarded in Blake and Snepp against applicable
speech standards (the First Amendment to the US Constitution and Article 10 of the
European Convention on Human Rights, respectively), and to suggest in particular
that the speech analyses in both cases were sadly lacking. Working out quite why this
was so will help to clarify a difficult area of free speech law: how, if at all, non-
statutory common law and equitable doctrines and remedies can be made subject to
constitutional speech standards.

*
Fellow, Senior Lecturer, School of Law, Trinity College Dublin; I blog at
<http://www.cearta.ie>. I would like to dedicate this paper to the memory of the two people without
whom it would not have been written: Prof Peter Birks, University of Oxford, and Prof Louise Halper
of the University of Washington and Lee, Lexington, Virginia.
1
Chris de Burgh “Moonlight and Vodka” from Man on the Line (A&M, 1984); see
<http://www.cdeb.com/cdebnew/lyrics/vodka.html> (last visited 3 February 2010). Unfortunately, as
that website makes clear, he’s still touring and recording albums!
2
444 US 507 (1980).
3
[2001] 1 AC 268; [2000] UKHL 45 (27 July 2000).

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2. Introduction: How I Came to Offer This Paper Today
I was delighted and honoured to receive the invitation to deliver today’s Current
Legal Problem lecture. I vaguely mentioned something about the cases and stories of
Frank Snepp and George Blake. With two spies, I thought, there would be plenty of
colour to liven up the analysis of their surprisingly similar cases. And I thought little
more about it. Then, a little while later, in an example of that felicitous serendipity
that occasionally confirms a fancy, fate took a hand: I quickly discovered that Lewis
Powell, the author of the per curiam decision in Snepp had retired to W&L and had
left his papers to its Law School library. That decided matters: I consulted his file on
the case, and discovered such a fascinating story that it confirmed my topic for my
paper this evening.

Most of the papers presented in this series are usually described by their authors as
“works in progress”, constituting an important halting point on the road to publication
in the annual volume. So it is with this paper. Nevertheless, I hesitate to describe this
iteration of my paper as a “work in progress”; that would require that there be a
“work”, and that it be “in progress”. This presentation is different on both scores.
There is not so much a “work” as an “idea”; and there is not so much “progress” as
(perhaps) a “beginning” of the journey.

In a scene in the 1995 movie Father of the Bride, Part II,4 George and Nina Banks
(played by Steve Martin and Diane Keeton), are empty-nesters who have just sold
their house to Mr Habeeb (played by Eugene Levy in a movie-stealing cameo), who
wants to tear it down for redevelopment. However, when George and Nina learn that
she is pregnant, the nest no longer being empty, Nina despatches George to get the
house back from Mr Habeeb. George arrives just in time to see Mr Habeeb get a crane
with a wrecking ball in place to demolish the house. Frantic negotiations between
George and Mr Habeeb fail to bring about a deal, and waving his right index finger in
the air, Mr Habeeb instructs the driver of the crane with the wrecking ball:

“Commence to start”.5

And that is what I have done in this paper. It proceeds in three stages. First, because
every good story must have a cast, it examines the dramatis personæ: Frank Snepp,
George Blake, and Justice Powell. Second, because every good story must have a
dramatic crisis, it calls into question the remedies in the key judgments in the cases.
And third, in the grand tradition of soap opera’s introduction of a long lost relative to
drive the narrative forward, it fêtes the freedom of expression arguments unjustly
neglected in the same key judgments. Only the first act is complete; as they say in
Hollywood, the second and third acts still need some work, but relatively readable
versions of the arguments appear below.

4
In fact, it is perhaps the only funny scene in an otherwise dull sequel to a poor and
unnecessary remake of the sparkling 1950 Vincente Minelli / Spenser Treacy original.
5
Of course, the hapless George gives in to Mr Habeeb’s exorbitant terms, and saves the house,
which then becomes the locus for the movie’s subsequent “comic” escapades. I suspect I am not alone
in wishing that the wrecking ball had demolished the house, and with it the remainder of the movie.

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3. Frank Snepp, George Blake, and Lewis Powell
3.1 Frank Snepp and Snepp v US
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.
In 1977, he wrote Decent Interval,6 a confessional account of these experiences. It
was prepared in total secrecy and published with great fanfare. But, 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.7 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 the dissent was
prepared to award the constructive trust but not punitive damages.8 The Supreme
Court, in an unsigned summary per curiam decision, not only upheld the agreement
but moreover went on to award the constructive trust as well.9

Snepp has written a further book about the court case,10 and 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”;11 for example, I heard Jack

6
F Snepp 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).
7
US v Snepp 456 F Supp 176 (DC Va, 1978). In the Alexandria Division of United States
District Court for the Eastern District of Virginia, Lewis J held (456 F Supp 176, 182):
One who breaches his trust and secrecy agreements with the agency of the United States
charged with the responsibility for protecting intelligence sources and methods ought not to be
permitted to retain his ill-gotten gains. Anything less will not suffice to prevent unauthorized
disclosure of such information.
Courts of equity frequently go much further to give relief in furtherance of the public interest
than they are accustomed to go when only private interests are at stake. Therefore the Court
will exercise its equity powers and impose a constructive trust over and require an accounting
of any and all revenue, gains, profits, royalties and other advantages derived by the defendant
from the sale, serialization, republication rights in any form, movie rights or other distribution
for profit of the work entitled Decent Interval.
8
US v Snepp 595 F 2d 926 (4th Cir, 1979). The Court therefore remanded the case for an
assessment of damages by a jury. On the question of a constructive trust, Winter J (Phillips J
concurring) held that “it was not shown on this record that defendant breached a fiduciary obligation,
and it was therefore improper for the district court to impose a constructive trust on the monies earned
from publication of the book” (595 F 2d 926, 929; see also id, 935-936); but Hoffman J (dissenting on
this issue) held that the agreement did in fact create a fiduciary obligation, the breach of which justified
a constructive trust (id, 938), and he went on to hold (id, 939, emphasis added):
A constructive trust is defined as a relationship with respect to property subjecting the person
by whom the property is held to an equitable duty to convey it to another on the ground that
his acquisition or retention of property is wrongful and that he would be unjustly enriched if
he were permitted to retain the property. … in some situations “a benefit has been received by
the defendant but the plaintiff has not suffered a corresponding loss or, in some cases, any
loss, but nevertheless the enrichment of the defendant would be unjust. In such cases, the
defendant may be under a duty to give to the plaintiff the amount by which he has been
enriched. … Snepp's case fits the foregoing statements like a glove. …
9
Snepp v US 444 US 507 (1980).
10
Snepp Irreperable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic
Battle Over Free Speech (Random House, NY, 1999).
11
The echo of the almost homophonous “to snip” must surely have helped this move.

3
Goldsmith on NPR say that his memoirs of his time writing memos for the Bush
White House have been “snepped”.12 Sounds painful.

3.2 George Blake and AG v Blake


George Blake13 was a KGB mole inside MI6 (Britain’s external Secret Intelligence
Service) from 1951 to 1960. After he was exposed, in 1961 he was convicted14 and
sentenced to 42 years in prison. In 1966, he escaped from the high security
Wormwood Scrubs prison, and fled first to Berlin and thence to Moscow. (I hope I
might be permitted a brief digression to observe that Blake escaped with the
assistance of an Irish rogue, Seán Bourke.15 Like Blake, Bourke absconded to
Moscow, but two years later he returned to Ireland, where he successfully resisted an
attempt to extradition to the UK.16) In Moscow, Blake was a Hero of the Soviet Union
and a Colonel of Foreign Intelligence.17 In 1990, he published his memoirs, No Other
Choice.18 But, in breach of his contract with MI6, 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. They failed at first
instance,19 but succeeded on this point in the Court of Appeal20 and in the House of
Lords.21 Lord Nicholls22 held that circumstances do arise when the just response to a

12
See (or, rather, listen to) <http://www.law.harvard.edu/news/2007/09/10_freshair.php> (last
visited November 6, 2007). The memo memoir is J Goldsmith The Terror Presidency: Law and
Judgment Inside the Bush Administration (WW Norton, 2007). Snepp himself seems to have accepted
this usage; see Irreparable Harm 360.
13
See Hyde George Blake Superspy (Constable, London, 1987).
14
He pleaded guilty to unlawfully communicating information contrary to section 1(1)(c) of the
Official Secrets Act, 1911.
15
Bourke The Springing of George Blake (Cassell, London, 1970); O’Connor Blake and Bourke
and the End of Empires (Prendeville Publishing, Dublin, 2003). In springing Blake, Burke had the help
of two other inmates, Michael Randle and Pat Pottle; see Randle and Pottle The Blake Escape. How we
Freed George Blake and Why (Harrap, London, 1989). Hedley (n00 below, at n1) explains that, “on the
strength of their own revelations, Pottle and Randle were prosecuted for aiding Blake's escape. Before
trial, a charging order under the Criminal Justice Act 1988 was made in respect of the proceeds of their
book. However, in an unusually clear example of jury nullification, the pair were acquitted, and the
order was accordingly discharged”.
16
Bourke v AG [1972] IR 36 (SC); his bail during the extradition proceedings was posted by
Sheamus Smith, then a producer on 7 Days (a current affairs programme rather like the BBC’s
Newsnight), and recently retired as the Director of the Irish Film Classification Office; see Smith Off
Screen. A Memoir (Gill & Macmillan, Dublin 2008) 125-128.
17
Indeed, on his 85th birthday in 2007, Blake received another honour, the Order of Friendship;
see “Vladimir Putin honours traitor George Blake with tit-for-tat birthday medal” The Times (14
November 2007) < http://www.timesonline.co.uk/tol/news/world/europe/article2865969.ece> (last
visited, 14 November 2007).
18
Blake No Other Choice (Jonathan Cape, London, 1990). Blake’s story still has extraordinary
contemporary currency: for example, wikipedia tells me that the play Cell Mates (1995) by Simon Gray
is about Blake and Bourke. The original production starred Stephen Fry as Blake and Rik Mayall as
Bourke. The production was famously thrown into turmoil when, following a bad review, and after
only three performances, Fry walked out and disappeared for a time (well, he went to Belgium, which
is probably the same thing). Again, the radio play After the Break (2002) by Ian Curteis centres on the
uncomfortable relationship between Blake and Bourke after they had both fled to Moscow. See, eg,
<http://en.wikipedia.org/wiki/George_Blake> (last visited 3 February 2010) and
<http://en.wikipedia.org/wiki/Cell_Mates_(play)> (last visited 3 February 2010).
19
[1997] Ch 84 (Scott VC).
20
[1998] Ch 439 (Lord Woolf MR, Millett and Mummery LJJ).
21
[2000] UKHL 45; [2001] 1 AC 268 (27 July 2000).
22
Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Steyn concurred; Lord Hobhouse
of Woodborough dissented.

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breach of contract is that the wrongdoer should not be permitted to retain any profit
from the breach. Hence, when, exceptionally, a just response to a breach of contract
so requires, the court should be able to grant the discretionary remedy of requiring a
defendant to account to the plaintiff for the benefits he has received from his breach
of contract. And he added:

As a footnote I observe that a similar conclusion, requiring the contract-breaker


to disgorge his profits, was reached in the majority decision of the United States
Supreme Court in Snepp v United States … In order to achieve this result the
court 'imposed' a constructive trust on Snepp's profits. In this country, affording
the plaintiff the remedy of an account of profits is a different means to the same
end.

Lord Steyn, in his short concurring speech, made a similar observation:

The decision of the United States Supreme Court in Snepp v United States … is
instructive. On very similar facts the Supreme Court imposed a constructive
trust on the intelligence officer's profits. Our law is also mature enough to
provide a remedy in such a case but does so by the route of the exceptional
recognition of a claim for disgorgement of profits against the contract breaker.
In my view therefore there is a valid claim vesting in the Attorney-General
against Blake for disgorgement of his gain.

Blake still lives in Moscow, and in 2004 he published a Russian memoir, Transparent
Walls. I am unaware whether his name has become a verb.23

3.3 Lewis Powell and Snepp v US


The Lewis Powell Archives contained his file on Snepp.24 Against the decision of the
Federal Circuit Court, Snepp petitioned for cert on the question of the validity of the
agreement, and the US conditionally cross-petitioned on the question of the
availability of the trust remedy.25 It seems that, at the Court’s cert conference on 5
October 1979, Powell would have granted cert, but the other eight justices would have
denied it, so Powell determined to take the unusual step of writing a dissent from the
denial of cert, and he had the case relisted (for a future court conference) so that he
could write it.26

23
What might “to blake” mean? Would having something “blaked” be painful?
24
See Supreme Court Case Files, Lewis F. Powell Jr. Papers, Washington and Lee University
School of Law, Lexington, VA, USA (hereafter, Powell Papers). I am enormously grateful to John
Jacob, Archivst of the Powell Papers, for all of his advice and assistance as I worked through Powell’s
file relating to Snepp.
25
Snepp’s petition was case number 78-1871, the government’s later cross-petition was case
number 79-265, but it was treated by all parties as a single case. In his holographic notes on the cert
pool memo, Powell wrote that “SG says that if we deny Snepp’s petition we should deny X. petition as
well … I don’t know why U.S. would throw in [the] sponge this way” (Powell Papers: Preliminary
Memorandum, 5 October 1979, 78-1871 (Snepp v US), p1).
26
On the cover of the cert pool memo, in a pen different from that in which he had marked up
the memo originally, he wrote “I will write” (Powell Papers: Preliminary Memorandum, 5 October
1979, 79-265) (Snepp v US), p1); on his cert sheet for Snepp’s appeal, he wrote “reslisted for me to
write” (26 October 1979, 78-1871 (Snepp v US)); and on the cert sheet for the conditional cross appeal,
he wrote “relisted for me” (26 October 1979, 79-265 (US v Snepp)).

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The cert pool memo27 had broadly focused on the First Amendment issues, and he
received a memo on the First Amendment issues from one of his clerks on 18
October.28 However, the following day he produced a draft of an opinion which
barely mentioned the First Amendment but instead proceeded from the view that the
“holding of the Court of Appeals that there was no constructive trust may well leave
the government, as a practical matter, with no effective deterrent against similar
breaches of security”.29 Even more clearly, in the next draft of the opinion, on 23
October, he wrote that he “would grant the petitions for certiorari in order to reimpose
the constructive trust found [to exist] by the District Court”.30 Hence, Powell, the
WWII army intelligence officer, wanted to grant cert so as to reinstate the severe
remedy of the constructive trust which had been granted by Lewis J at first instance
but denied on appeal over the dissent of Hoffman J.31

After a little more work, the opinion was ready to go to the Court’s printers on 24
October,32 but he was still working on it,33 and he had not as yet circulated a draft, so
the case was once again relisted for him at the Court’s 26 October conference.34
Meantime, he wrote to Harry Blackmun asking him to have a look at the draft. He
acknowledged that Blackmun might

wonder why I trouble you with precirculation review. I would prefer not to take
the cases for argument, and thus I would like to know what the chances are of
four other Justices joining me in a summary reversal. At this time, I have spoken
only to Potter [Stewart], who – at the first Conference on this case – indicated to
me some interest. I believe that he will “join 4” to deal with the cases
summarily. Although I have not yet talked to the C[hief ]J[ustice] or W[illiam
]H[]R[henquist], I am sure that they will be influenced by your thinking.35

This is a stunning letter; it seems clear that Powell was hoping to transmute his
dissent into a grant of cert and a summary disposition of the case. His files do not

27
Ibid.
28
It was prepared by Gregory May, and Powell noted on its first page: “Excellent memo, with
which I agree”; see Powell Papers: Memorandum from Gregory May to Mr Justice Powell, 18 October
1979, 78-1871 (Snepp v US) and 79-265 (US v Snepp), p1.
29
Powell Papers: 1fp/ss, draft dissent, 78-1871 (Snepp v US), 19 October 1979, at p9. This
sentence survived into the final published opinion: --
30
Powell Papers: Chambers draft, draft dissent, 78-1871 and 79-265 (Snepp v US), 23 October
1979, at p1. The portion in italics in the text is a holographic addition to the printed draft. This sentence
too survived into the final published opinion: --
31
For what it is worth, Hoffman and Powell were WLU classmates (I am grateful to John Jacob
for this information). Hoffman’s files are also in the Powell Archive, but on Snepp they amount to no
more than a full transcript of the proceedings before the Court of Appeals. The file is interesting, but
adds nothing to the story below.
32
Powell Papers: First Draft Chambers Draft, 78-1871 and 79-265 (Snepp v US), 24 October
1979 [the first version that came back from the printer was headed “Chambers Draft”, but that is
crossed out and the words “First Draft” are handwritten above].
33
See Powell Papers: First Draft, 78-1871 and 79-265 (Snepp v US), 25 October 1979.
34
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 26 October 1979)
and the cross-appeal (Powell Papers: 79-265 (Snepp v US), 26 October 1979) Powell wrote “Relist for
LFP”.
35
Powell Papers: Letter from Powell to Blackmun, 78-1871 and 79-265 (Snepp v US), 31
October 1979.

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contain Blackmun’s response, if any.36 But the case was also relisted at the 2
November conference.37 And the first sign that his transmutation strategy was
working came on 6 November, when Rhenquist sent a handwritten note indicating
that he was willing to join Powell’s dissent.38

The case was also relisted at the 9 November conference,39 after which Powell
quickly circulated drafts of his dissent on 1640 and 1941 November. Then, very
quickly, Powell got a Court. On 16 November, Burger and Stewart wrote to him,
asking to be joined to the dissent;42 on 19 November, Blackmun wrote to him that he
had written a “persuasive dissent” which he was happy to join;43 then, on 20
November, the usually more efficient Rhenquist, in effect formally confirming his
earlier handwritten note, wrote to Powell, asking to be joined in the dissent.44 But of
course it was no longer a dissent. It now commanded (at least45) five votes. At the 21
November conference, it was again relisted,46 presumably so that Powell, now in
possession of a majority, could convert his dissent into an opinion for the Court. And
since he was proposing to grant cert and dispose of the case summarily, the opinion
would be a per curiam.

Handwriting changes on a 19 November draft of the opinion confirm that Powell’s


chambers set to work on the conversion immediately,47 and he was in a position to

36
Nor would Blackmun’s papers appear to be much help: there is nothing in the index at
<http://www.loc.gov/rr/mss/> (last visited 7 November 2007) for “Snepp” or for either of the docket
numbers of the consolidated cases (I am grateful to John Jacob for this information).
37
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 2 November 1979)
and the cross-appeal (Powell Papers: 79-265 (Snepp v US), 2 November 1979) Powell wrote “Relist for
LFP”.
38
Powell Papers: Memorandum from William [Rhenquist] to Lewis [Powell], 79-265 (Snepp v
US), 2 November 1979.
39
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 9 November 1979)
and the cross-appeal (Powell Papers: 79-265 (Snepp v US), 9 November 1979) Powell wrote “Relist for
LFP”.
40
Powell Papers: 1st Draft Dissent, 78-1871 (Snepp v US) and 79-265 (US v Snepp) 16
November 1979.
41
Powell Papers: 2nd Draft Dissent, 78-1871 (Snepp v US) and 79-265 (US v Snepp) 19
November 1979.
42
Powell Papers: Letter from the Chief Justice to Mr Justice Powell, 78-1871 (Snepp v US) and
79-265 (US v Snepp) 16 November 1979; Letter from Mr Justice Stewart to Mr Justice Powell, 78-
1871 and 79-265 (Snepp v US) 16 November 1979. If Rhenquist’s handwritten note (n00 above) is
included, then at this stage Powell had four votes, enough for a formal grant of cert.
43
Powell Papers: Letter from Mr Justice Blackmun to Mr Justice Powell, 78-1871 (Snepp v US)
and 79-265 (US v Snepp) 19 November 1979. Even without Rhenquist’s vote, Powell now had four
votes, enough to grant cert.
44
Powell Papers: Letter from Mr Justice Rhenquist to Mr Justice Powell, 78-1871 and 79-265
(Snepp v US) 20 November 1979.
45
Of the others, given that Stevens, Brennan and Marshall ultimately dissented, we can probably
assume that they never at any stage indicated an intention to join Powell. White certainly joined Powell
later (see n00 below), but there is nothing in the files to indicate that he joined at this stage.
46
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 21 November 1979)
and the cross-appeal (Powell Papers: 79-265 (Snepp v US), 21 November 1979) Powell wrote “Relist
for LFP”.
47
For example, “Mr Justice Powell, dissenting.” has a line through it, and it is replaced with
“Per Curiam:”; the heading “2nd Draft” [of the dissent] has a line through it, and it is replaced with “1st
Draft” [for the Court]; in the text, “I would grant” certiorari becomes “We grant”. See Powell Papers:
2nd Draft Dissent = 1st Draft Opinion, 78-1871 (Snepp v US) and 79-265 (US v Snepp) 16 November
1979.

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circulate a draft per curiam on November 27. Blackmun48 joined it the same day,
Stewart49 and the Chief Justice50 the following day, and Rhenquist51 the day after that.
Interestingly, on 29 November, White wrote to Powell:

Although I voted to deny rather than give plenary consideration to this case,
now that your per curiam suggests a summary reversal, I join.52

Now there were six votes for Powell’s per curiam,53 and John Paul Stevens piled in,
preparing a dissent, which Marshall and Brennan would join. Stevens circulated a
draft on 3 January 1980, on which Powell wrote a handwritten note: “We must answer
fully”.54 As a consequence, the case was again relisted at the Court conference of 11
January 1980.55

It seems to emerge from the file that Powell was attempting to buy time before
Thanksgiving to construct his majority, and that before and after Christmas and into
the new year, Stevens seems similarly to have been attempting to buy time to try and
peel some of the majority away from Powell. Hence, the case was relisted once again
at the 18 January conference, this time for Stevens.56 Correspondence continued
within both blocs on the Court, but nobody defected either way; by early February,
the back and forth was over, the drafts of the per curiam and the dissent were locked
down, and at the 15 February conference it was set down for judgment.57 And because
the Court was going to deal with the issue summarily, all of this had gone on without
the benefit (or otherwise) of full briefs or oral argument from the parties and their
lawyers.

This, at least, is the story that seems to emerge from the file in the Powell Archive.58
And, in the event, the Court held that Snepp had breached a fiduciary obligation when
48
Powell Papers: Letter from Mr Justice Blackmun to Mr Justice Powell, 78-1871 (Snepp v US)
and 79-265 (US v Snepp) 27 November 1979.
49
Powell Papers: Letter from Mr Justice Stewart to Mr Justice Powell, 78-1871 and 79-265
(Snepp v US) 28 November 1979.
50
Powell Papers: Letter from the Chief Justice to Mr Justice Powell, 78-1871 (Snepp v US) and
79-265 (US v Snepp) 28 November 1979.
51
Powell Papers: Letter from Mr Justice Rhenquist to Mr Justice Powell, 78-1871 and 79-265
(Snepp v US) 29 November 1979.
52
Powell Papers: Letter from Mr Justice White to Mr Justice Powell, 78-1871 (Snepp v US) and
79-265 (US v Snepp) 29 November 1979.
53
This may have been a significant number; see n00 below (on the undated note).
54
Powell Papers: 1st Draft Dissent (Stevens), 78-1871 (Snepp v US) and 79-265 (US v Snepp) 3
January 1980. Indeed, the various notes he made on that page of matters in Stevens J’s dissent that
must be answered in his opinion eventually make their way into the per curiam.
55
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 11 January 1980) and
the cross-appeal (Powell Papers: 79-265 (Snepp v US), 11 January 1980) Powell wrote “Relist for
LFP”.
56
On the cert sheets for the appeal (Powell Papers: 78-1871 (Snepp v US), 18 January 1980) and
the cross-appeal (Powell Papers: 79-265 (Snepp v US), 18 January 1980) Powell wrote “Relisted for
John” (ie, for John Paul Stevens), and on the latter sheet, he instructed his clerk (Greg, ie Gregory May)
to take a final look at the per curiam before the 15 February conference.
57
On the cert sheet for the appeal (Powell Papers: 78-1871 (Snepp v US), 15 February 1980),
Powell wrote “Tues Order List”; and the cert sheet for the cross-appeal (Powell Papers: 79-265 (Snepp
v US), 15 February 1980) Powell wrote “Order list”.
58
From access to the files of Thurgood Marshall (who had already died) and William Brennan
(who voluntarily granted Snepp access), Snepp himself tells a shorter version of similar story in
Irreparable Harm 348-350, though he casts Powell in rather a villainous light.

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he published a book about CIA activities without submitting his manuscript for
prepublication review, so that the proceeds of his breach are impressed with a
constructive trust for the benefit of the Government.

However, this was not the end of the line. There two interesting sequels. First, the
following week, Powell prepared a memo for the file59 in which he was concerned to
refute press speculation that the Snepp decision was somehow a response to the
contemporary publication of The Brethern60 and in particular reflect a desire on the
part of the Court to create a precedent against leaks. Second, Snepp kept the litigation
going. His requests for rehearing were denied.61 And the matter returned to the
Federal District Court, where subsequent proceedings dragged on for ten years,
though not in any respect relevant to the analysis in this paper.

3.4 The “Fourth Man” and AG v Blake


There were some peculiarities to the way the remedy evolved in Blake too. At first
instance, Blake was not represented; the Attorney General claimed only that he was in
breach of (non contractual) fiduciary duties (of confidence and loyalty) which he
owed the Crown; and Scott VC held that these duties had not been breached by Blake
in publishing the book.

The Crown appealed to the Court of Appeal. Again, Blake was not represented; and
the Court upheld Scott VC’s decision on the fiduciary duties issues. However, the
Court granted leave to the Crown to add various public law claims against Blake, held
that those claims succeeded, and allowed the appeal. Moreover, Lord Woolf MR
invited argument from the Attorney General on a further point, namely whether Blake
was in breach of his contract with MI6 in not pre-clearing the publication of his book,
and if so, whether the Attorney General could seek a measure of damages to strip him
of his profits from that breach. The Attorney General declined that invitation, and did

59
See Powell Papers: lfp/ss 2/25/80 Memo to File – United States v. Snepp (25 February 1980);
reproduced in full in the Appendix, below. He made a similar point in a handwritten note on the table
of opinions in the file: “Two drafts were circulated before “The Brethern” came out. Media speculation
on this was paranoid”. See Powell Papers: LFP/??? date?? 78-1871 (Snepp v US) and 79-265 (US v
Snepp) date.
60
Bob Woodward and Scott Armstrong The Brethern: Inside the Supreme Court (Simon &
Schuster, 1979).
61
These are routinely made and just as routinely denied, though the fact that the whole case was
decided summarily might be thought to have made this petition rather more deserving than the usual
run of case. However, an undated note in Powell’s handwriting, and headed “Snepp” provides:
In 79-5386 Tague v La (this list)
There are 6 votes to dispose of it by John’s P.C.
WHR – at Jan 18 cf. – argued for setting for argument.
WJB & TM said no reason to hear when 6 votes agree on a P.C.
In Tague v Louisiana 444 US 469 (1980) the Supreme Court, in a per curiam delivered on 21 January
1980, granted cert and summarily reversed the decision of the Supreme Court of Louisiana (372 So 2d
555 (1979)) (on the grounds that it had obviously misapplied Miranda v Arizona 384 US 436 (1966)).
It seems from Powell’s note that this per curiam was prepared by John Paul Stevens, and that it had (at
least) six votes – it might even have had seven: Burger CJ would have set the case down for oral
argument, and Rhenquist J (whom Powell records as wishing to hear argument) dissented; that makes
two, but no-one else is recorded as expressing an opinion contrary to the per curiam. In any event, the
note suggests that Powell saw in the treatment of Tague, and in particular in the comments of Brennan
and Marshall JJ, some cover or support for how Snepp was treated. The fact that Stevens J wrote that
per curiam in Tague may have helped Powell to deflect some of Steven’s criticisms of Powell’s per
curiam in Snepp.

9
not argue the point.62 However, at the end of the joint judgment of the Court delivered
by Lord Woolf MR, he expressed the view that had the point been taken and argued, it
would have succeeded, holding that the law of contract would be seriously defective if
the court were unable to award restitutionary damages for breach of contract.

I wrote to Lord Woolf to enquire why the Court of Appeal invited argument on this
point. In a typically courteous reply,63 he explained that he had raised the matter
himself. But more than that, he would not say. A to what had inspired him to do so, he
kept a judicious, not to say judicial, silence. However, I have a theory that the late
Professor Peter Birks, Regius Professor of Laws in the University of Oxford, must
have had some influence (however indirect) on the Court. All three of its members
have strong and continuing Oxford connections. For example, Millett LJ (later Lord
Millett) was very taken with Birks’s private law theories, and rarely lost an
opportunity to adopt them in his judgments.64 Lord Woolf MR was more robust and
less academic in his approach on the bench, but he too was influenced by Birks’s
writing.65 Mummery LJ is a more pragmatic judge, but was a classmate of Birks at
Oxford, and a lifelong friend thereafter. Birks had long argued for the common law
world to accept an independent law of restitution for unjust Enrichment, separate and
distinct from contract and tort;66 and he argued that private law should provide for a
strong role for restitutionary damages.67 Indeed, Snepp was one plank upon which he
had constructed an element of his theory. Since this piece was discussed in their joint
judgment, at least some members of the Court of Appeal must have been aware of
Birks’s work,68 and it becomes easy to see why they invited argument on this point in
Blake.

Hence, like questions of whether there was a fifth Cambridge Spy after Burgess,
Maclean, Philby and Blunt, and who that “fifth man” might have been, whether there
was a “fourth man” who influenced the three members of the Court of Appeal in
Blake, and that might have been, will remain a matter of conjecture; but, for the
reasons in the previous paragraph, my money’s on Peter Birks.

Blake appealed to the House of Lords; but, this time, he was represented by counsel
and solicitors acting pro bono. The Attorney General did not press the fiduciary duties
issues; and the House of Lords reversed on the public law point. So everything turned
on the issue of restitutionary damages for breach of contract. And this time, the
Attorney General did argue the issue; indeed, it formed the main plank of his case
against Blake in the House of Lords. Moreover, as we have seen, he did so with
conspicuous success.

62
However, the Attorney General reserved the right to take the point on appeal.
63
Letter on file with author.
64
See, eg, his speech giving the advice of the Privy Council in Air Jamaica Ltd v Charlton
[1999] 1 WLR 1399 (PC)
65
See, eg, his dissent in Westdeutsche Landesbank Girozentrale v Islington London Borough
Council [1996] AC 669 (HL).
66
See, eg, the monographs that bookend his illustrious career: An Introduction to the Law of
Restitution (rev ed, Clarendon Press, Oxford, 1987); Unjust Enrichment (2nd ed, Clarendon Law Series,
OUP, 2005).
67
See, eg, “Misnomer” in Cornish, Nolan, O’Sullivan and Virgo (eds) Restitution, Past, Present
and Future: Essays in Honour of Gareth Jones (Hart Publishing, Oxford, 1998).
68
If not, they must have been made aware of it in some fashion during the currency of the case.

10
However, this was not the end of the line. Blake applied to the European Court of
Human Rights in Strasburg on the grounds that the order of the House of violated his
rights to freedom of expression (Article 10) and property (Article 1 of Protocol No.
1), and that the length of time it took for the case to work its way through the English
courts system (9 years and 2 months in all) violated his right to a fair trial (Article 6).
However, the Court held that his expression and property claims were inadmissible,69
but allowed the Article 6 case to proceed, and that was ultimately successful.70

3.5 Snepp and Blake: Some Commonalities


Apart from the espionage backgrounds and the peculiar procedural postures by which
the courts ultimately came to their remedies, there are several other Snepp and Blake
share several other important commonalities. Two in particular stand out for me.

First, there is the pattern of the remedy. In both cases, it is self-consciously


restitutionary, stripping a contract breaker of the profits of his breach. But whilst the
House of Lords were content to award a personal (damages) remedy, the US Supreme
Court went one step further and imposed a proprietary (trust) remedy. It is difficult to
shake the impression reading these aspects of these decisions that the urge to strip the
spies of their profits was driven primarily by a visceral distaste for the spies and their
revelations and only secondarily by doctrine. Certainly, the reasoning in both cases is
relatively thin, and provides little guidance for the subsequent development of the
law. I think that the House of Lords did the right thing for the wrong reasons in
recognizing restitutionary damages for breach of contract, but that the US Supreme
Court went too far in imposing a constructive trust, and in the next section of this
paper, I want to consider just why this might be so.

Second, the applicable speech principles (the First Amendment in Snepp, and Article
10 in Blake) were very faint in both cases. In Snepp, for example, whilst Powell
sought a memo from his clerk on the First Amendment issues, his own first draft dealt
almost exclusively with the validity of the remedy. Although, as time went on and his
opinion evolved, especially in response to Stevens’ dissent, the First Amendment
point did get some discussion, it was never the real focus of his attention. Similarly, in
Blake, whilst some Article 10 concerns were articulated on the fiduciary duties and
public law matters, they did not even receive cursory discussion on the restitutionary
damages point in the Court of Appeal and the House of Lords. Moreover, they were
dismissed by the European Court of Human Rights as manifestly ill-founded. I think
that all of these Courts missed an important trick here, and in the next section of this
article, I want to consider just what free speech issues properly arise in these cases.

69
Blake v UK 68890/01 (25 October 2005); see
<http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=789312&portal=hbkm&source
=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649> (last visited 3 February
2010).
70
Blake v UK 68890/01 [2006] ECHR 805 (26 September 2006).

11
4. The Remedies in Blake and Snepp
4.1 Introduction: Exotic Species of Damages and Trusts
The remedies awarded in Blake and Snepp are two of the most difficult and
controversial areas in the modern law of restitution for unjust enrichment.

Before Blake, restitutionary damages for breach of contract, though often conjectured
in the academic laboratory, had rarely been uncontroversially spotted in the wild.
After Blake, we can at least say for certain that this species of damages exists because
the House of Lords has told us so, but it offered little guidance for the future.

Even more contentious than the question of restitutionary damages for breach of
contract is the question of the appropriateness of awarding proprietary remedies to
reverse an unjust enrichment. This has too been postulated in the academic laboratory,
and hunted in the wild, but has been rarely if ever caught. Snepp may very well be a
case of this kind; but it seems to me that the US Supreme Court went too far in
awarding a proprietary (trust) remedy, rather than a personal (damages) remedy à la
Blake; and I think it significant that the trust reasoning in Snepp does not seem to have
been subsequently much relied upon.

This section examines both of these exotic species in captivity.

4.2 Restitutionary Damages for Breach of Contract


This species of damages, before Blake, had rarely been spotted in the wild. But the
Irish habitat seems to have been congenial.71 For example, in Hickey v Roches Stores
(No 1)72 Finlay J held that, to the traditional measures of damages in contract and tort,
“there are exceptions in breach of contract alike as in tort to that general rule with
regard to the assessment of damages”, 73 and he concluded that:

Where a wrongdoer has calculated and intended by his wrongdoing to achieve


a gain or profit which he could not otherwise achieve and has in that way
acted mala fide then irrespective of whether the form of his wrongdoing
constitutes a tort or a breach of contract the Court should in assessing damages
look not only to the loss suffered by the injured party but also to the profit or
gain unjustly or wrongly obtained by the wrongdoer.

If the assessment of damages confined to the loss of the injured party should
still leave the wrongdoer profiting from his calculated breach of the law
damages should be assessed so as to deprive him of that profit.74

71
See, generally, the Law Reform Commission Consultation Paper (1998) and Report (2000) on
Aggravated, Exemplary and Restitutionary Damages.
72
High Court, 14 July 1976, Finlay P (reported in [1993] Restitution Law Review 196 to which
page references below are made); see also Hickey v Roches Stores (No 2) [1980] ILRM 107.
73
[1993] RLR 196, 204 discussing Strand Electric and Engineering Company Limited v Brisford
Entertainments Limited [1952] 2 QB 246, 253 (Denning LJ ), and observing that the general rule “is
however often departed from” so that “in cases where the defendant has obtained a benefit from his
wrongdoing he is often made liable to account for it even though the plaintiff has lost nothing and
suffered no damage”); cp the second of his five statements of principle at [1993] RLR 196, 207-208:
“To this general rule there are exceptions both in cases of tort and in cases of breach of contract some
of which may be different for each particular cause of action and some of which are the same”.
74
[1993] RLR 196, 208; see also Vavasour v O’Reilly [2005] IEHC 16 (28 January 2005);
Conneran v Corbett & Sons [2006] IEHC 254 (31 May 2006); Duhan v Radius Television Production

13
Nothing could be clearer; damages are available in contract and tort to prevent the
unjust enrichment (“profit or gain unjustly or wrongly obtained”) of the defendant at
the expense of the plaintiff by requiring the defendant to pay damages in the
restitution measure “to deprive him of that profit”. Nor is this an isolated instance,
though it is the main reasoned judgment on the point in Ireland. Thus in Maher v
Collins75 the Supreme Court affirmed that the primary measure of damages in tort is
the compensation measure, but continued that this “is not to say that there may not be
exceptional and particular cases where the defendant’s conduct has been calculated by
him to make a profit for himself which may well exceed any compensation likely to
be payable to the plaintiff. In such rare and exceptional circumstances other
considerations may apply”.76 The stripping of such profits, the stripping of such unjust
enrichment, from the defendant, and their restitution to the plaintiff, is plainly
envisaged here. Similarly, in the oblique Hanley v ICC Finance77 Kinlen J found “the
proposition … of subsuming these two distinct torts [of conversion and detinue] into a
claim for restitution very attractive”.78 These dicta are not without difficulty,79 but
the best reading is that they support damages in the restitution measure as a
supplement to the available compensatory remedies for detinue and conversion.80
Whatever about Hanley, it is clear from Maher v Collins and Hickey v Roches Stores
that Irish law does recognise the existence of damages in both contract and tort the
aim of which is to prevent the unjust enrichment of the defendant at the expense of the
plaintiff by requiring the defendant to make restitution.

English law was far more tentative;81 there were occasional glimpses of restituitonary
damages, but nothing to convince to skeptics,82 until Blake. In the Court of Appeal,
Lord Woolf MR concluded:

Ltd [2008] 1 IR 506, [2007] IEHC 292 (18 July 2007), in all of which Hickey was cited either neutrally
or with apparent approval, but a decision as to availability of its measure of damages was not necessary
in any of them.
75
[1975] IR 232.
76
[1975] IR 232, 238 (O’Higgins CJ).
77
[1996] 1 ILRM 463 (Kinlen J).
78
[1996] 1 ILRM 463, 469
79
See my critiques in Byrne and Binchy (eds) Annual Review of Irish Law 1995 (Round Hall
Sweet & Maxwell, Dublin, 1997) 535-536 and [1997] RLR § 139.
80
In fairness, it should be noted that Kinlen J was merely following a similarly oblique dictum in
Strand Electric and Engineering Co v Brisford Entertainments Ltd [1952] 2 QB 246, 254: “The claim
… is not based on loss to the plaintiff … It resembles therefore an action for restitution, rather than an
action in tort”, in respect of which Birks has remarked (in exasperation, perhaps): “What does this kind
of sentence mean? Does the speaker mean that the cause of action is unjust enrichment rather than tort,
or that, the cause of action remaining the tort, the claim is for restitution rather than for compensation ?
Our present practice offers no escape from this kind of ambiguity” (“Misnomer”, 7) though he seems to
express a preference for the second alternative (ibid 7 n 16).
81
See the Law Commission Report (1997) on Aggravated, Exemplary and Restitutionary
Damages.
82
Most discussions include reference to Reading v Attorney General [1951] AC 507 (HL);
Penarth Dock Engineering Co v Pounds [1963] 1 Lloyd’s Rep 359; Wrotham Park Estate Co Ltd v
Parkside Homes Ltd [1974] 1 WLR 798 (Brightman J); Bracewell v Appleby [1975] Ch 408 (Graham
J); Tito v Waddell (No 2) [1977] Ch 106 (Megarry J); Ministry of Defence v Ashman [1993] 2 EGLR
102 (CA); Ministry of Defence v Thompson [1993] 2 EGLR 107 (CA); Surrey County Council v
Bredero Homes Ltd [1993] 1 WLR 1361 (CA); Jaggard v Sawyer [1995] 1 WLR 269 (CA); Inverugie
Investments v Hackett [1995] 1 WLR 713 (PC); Halifax Building Society v Thomas [1996] Ch 217
(CA); Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 (HL).

14
If the court is unable to award restitutionary damages for breach of contract,
then the law of contract is seriously defective. It means that in many situations
the plaintiff is deprived of any effective remedy for breach of contract,
because of a failure to attach a value to the plaintiff’s legitimate interest in
having the contract duly performed … In our opinion, the time has come to
accept … that the law is now sufficiently mature to recognise a restitutionary
claim for profits made from a breach of a contract in appropriate
circumstances. The difficult question is not whether restitutionary damages
should ever be available for breach of contract, but in what circumstances they
should be made available.83

In the event, he considered that such damages should be available where the
defendant has profited either by skimping in performance or by doing the very thing
which he had contracted not to do; this second ground would have covered the facts
of the case. On appeal, Lords Nicholls for the House of Lords characterised the
remedy as akin to an account of profits, and observed that in the light sprinkling of
earlier cases where courts had awarded something resembling such an account, they
had always given it a different appellation. Nevertheless, such cases illustrated that

… circumstances do arise when the just response to a breach of contract is that


the wrongdoer should not be permitted to retain any profit from the breach. In
these cases the courts have reached the desired result by straining existing
concepts. ... My conclusion is that there seems to be no reason, in principle, why
the court must in all circumstances rule out an account of profits as a remedy for
breach of contract. … When, exceptionally, a just response to a breach of
contract so requires, the court should be able to grant the discretionary remedy
of requiring a defendant to account to the plaintiff for the benefits he has
received from his breach of contract. 84

In the event, Lord Nicholls held that Blake’s contractual obligation to submit his book
for pre-clearance, if not actually fiduciary, was closely akin to a fiduciary obligation,
and that, in light of the special circumstanes of the intelligence services, an account of
profits would be a just response to Blake’s breach of contract: “but for his notoriety as
an infamous spy his autobiography would not have commanded royalties of the
magnitude Jonathan Cape agreed to pay”.85

Despite the advance made by the recognition of the head of damages in the restitution
measure in this case, later cases have been befuddled as to when to award them, 86 and
there are still some important unanswered questions. First, when will such a head of
damages be available; are there limits upon its availability, or will they always be
available at the election of the plaintiff in an appropriate case?87 Second, if the head of
damages is available in principle, how if at all does it square with the concept of
83
[1998] Ch 439, 457.
84
[2001] 1 AC 268, 000.
85
[2001] 1 AC 268, 000.
86
See, eg, Experience Hendrix v PPX Enterprises [2003] EWCA Civ 323 (20 March 2003)
(emphasizing the discretionary exceptional nature of the measure); WWF - World Wide Fund for
Nature v World Wrestling Federation Entertainment [2007] EWCA Civ 286 (02 April 2007) (same).
87
Cunnington “The Measure and Availability of Gain-Based Damages for Breach of Contract”
in Cunnington and Saidov (eds) Contract Damages: Domestic and International Perspectives (Hart
Publishing, Oxford, 2008) 207.

15
efficient breach of contract?88 Nevertheless, these questions do not undercut the
advance made in Blake, and Canadian law would seem to be heading in a similar
direction.89 That being so, two further questions arise.

First, has US law developed a similar princple? 90 Building on the above cases,
important book-length analyses of the issue have laid the moral and theoretical
foundations for this head of damages;91 much of the ground for placing it in
comparative perspective between the US and the remainder of the common law world
has already been prepared;92 and the measure is explicitly recognised in the current
working draft of the Restatement (3rd) of Restitution and Unjust Enrichment93 (though
the reality is that until it is formally promulgated, sightings of this measure of
damages in the US will probably remain at the level of the Californian Bigfoot).

Second, if US law has developed its own principle of restitutionary damages for
breach of contract, why was this not an appropriate remedy in Snepp? Even if punitive
damages would have been speculative, there appears to me to be no reason why the
courts could not have awarded restitutionary damages instead, rather than reaching for
the even more unconventional, not to say contentious, constructive trust. And this in
turn raises the question of the legitimacy of proprietary restitutionary remedies.

4.3 Proprietary Restitutionary Remedies


A good friend of mine describes this issue as “very hard law indeed”; and it has
become the Fermat’s Last Theorem of modern restitution scholarship. Every
schoolchild is familiar with Pythagoras’ Theorem: that, in a right-angled triangle, the
square on the hypotenuse is equal to the sum of the squares on the other two sides;
that is: x2 + y2 = z2. This holds for powers of two, but generations of mathematicians
after Pythagoras failed to find whole-number solutions for x, y and z for powers
higher than two; that is: they failed to find any whole number solutions to xn + yn = zn
where n>2. Pierre de Fermat, seventeenth-century French judge and amateur

88
See, in particular, O’Dair “Restitutionary Damages for Breach of Contract and the Theory of
Efficient Breach: Some Reflections” (1993) 46 CLP 113; Smith “Disgorgement of the Profits of
Contract: Property, Contract and ‘Efficient Breach’” (1994) 24 Can Bus LJ 121; Dagan The Law and
Ethics of Restitution (Cambridge UP, 2004) chapter 8; cf DeLong “The Efficiency of a Disgorgement
as a Remedy for Breach of Contract” 22 Ind L Rev 737 (1989).
89
See, eg, Bank of America (Canada) v Mututal Trust Co [2002] 211 SCR 44 (SCC); McInnes
“Restitutionary Damages for Breach of Contract” (2002) 37 Can Bus LJ 125 (2002).
90
Dawson “Restitution or Damages?” 20 Ohio St L J 175 (1959); Friedmann “Restitution of
Benefits Obtained Through the Appropriation of Property or the Commission of a Wrong” 80 Colum L
Rev 504 (1980); Farnsworth “Your Loss or My Gain? The Dilemma of the Disgorgement Principle in
Breach of Contract” 94 Yale LJ 1339 (1985); Kull “Disgorgement for Breach, the ‘Restitution Interest’,
and the Restatement of Contracts” 79 Tex L Rev 2021 (2001).
91
See, eg, Dagan Unjust Enrichment. A Study of Private Law and Public Values (Cambridge
UP, 1997); cp Edelman Gain-Based Damages; Contract, Tort Equity and Intellectual Property (Hart
Publishing, Oxford, 2002).
92
McCamus “Disgorgement for Breach of Contract: A Comparative Perspective” 36 Loyola of
LA L Rev 943 (2003); Roberts “A Commonwealth of Perspective on Restitutionary Damages for
Breach of Contract” 65 Wash & Lee Law Rev 945 (2008).
93
Section 39 is directed to “Profit Derived from Opportunistic Breach”; see Roberts
“Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages” 42
Loy LA Law Rev 131 (2008); Roberts “Restitutionary Disgorgement as a Moral Compass for Breach of
Contract” 77 U Cinn L Rev 991 (2009).

16
mathematician, claimed that no such solutions were to be found.94 In a note scribbled
in the margins of his favourite mathematical text,95 he wrote:

I have a truly marvellous demonstration of this proposition which this margin


is too narrow to contain.96

Fermat’s Last Theorem (strictly, a conjecture rather than a theorem) then, is that there
are no whole-number solutions for x, y and z for an equation in the form xn + yn = zn
where n>2. However, since Fermat did not set down his “truly marvellous
demonstration”, for more than three hundred and fifty years, the world of mathematics
struggled to prove or disprove his conjecture, until, on 23 June 1993, Andrew Wiles, a
professor in Princeton, returned to Cambridge, the city of his birth, to give a lecture in
the Issac Newton Institute, in which he demonstrated a proof of Fermat’s Last
Theorem, and in the process “created a new bridge between wildly different
mathematical worlds”.97

In many ways, proprietary remedies for unjust enrichment stand to the modern law of
restitution (at least in the common law world outside the US) as Fermat’s Last
Theorem stood to the world of mathematics.98 Everyone expects there to be a
solution, and it is only a matter of time until it is found. Indeed, most observers expect
that the solution will be similar to Wiles’, creating a bridge between the wildly
different worlds of unjust enrichment and restitution on the one hand, and property
and equity on the other.

But such an enterprise is fraught with danger at every turn. The problem is that in
many of the cases, the courts have confused obligation with ownership.99 Where they
should perceive simply a personal remedy in favour of the plaintiff, they turn it into a
proprietary obligation on the part of the defendant: where there should simply be a
personal claim against the defendant for an amount of money, there is often instead a
proprietary claim against certain property in the defendant’s hands. Various species of
trust and other similar equitable institutions, doctrines and remedies have been
pressed into this service. And it is important to get this issue right. Equitable
proprietary rights, matter a great deal. Unlike personal claims at law, they are not
vulnerable in an insolvency,100 and may not be subject to the same bars, limits,
limitations, or defences as related or underlying personal claims;101 they can reach
appreciations in value of the claimed asset102 or profits made by the defendant,103

94
See, generally, Singh Fermat’s Last Theorem (Fourth Estate, London, 1997). Singh may be
more familiar to an audience of lawyers for his recent legal travails: British Chiropractic Association v
Singh [2009] EWCA Civ 1154 (14 October 2009).
95
Bachet’s translation of Diophantus’ Arethmetica (Paris, 1621); the note is in Book II, on the
margin of a discussion of Pythagoras’ Theorem and related matters. See Singh, ibid, 55-62.
96
Cuius rei demonstrationem mirabilem sane detexi hanc marginis exiguitas non caperet. See
Singh, ibid, 66, 69.
97
Lynch, Foreword to Singh (ibid) xiii.
98
I have drawn this analogy before: see “Fermat’s Last Theorem and the Context of Proprietary
Remedies” (2005) 19(2) Trusts Law Int 97.
99
Goode “Ownership and Obligation in Commercial Transactions” (1987) 103 LQR 433.
100
Oditah “Assets and the Treatment of Claims in Insolvency” (1992) 108 LQR 459.
101
Jones (ed) R Goff and G Jones The Law of Restitution (6th ed, Sweet & Maxwell, London,
2002) 876 [43.024].
102
Scott v Scott (1962) 109 CLR 649; Trustees of the Property of F Jones & Co v Jones [1997] 1
Ch 159 ; Foskett v McKeown

17
generate claims to compound interest,104 support applications for court orders to
preserve the property until trial,105 and increase the range of possible defendants;106
and they may be the most appropriate means of dealing with cases in which the
claimant for personal reasons might particularly want the property in specie.107 For all
of these reasons, and more, proprietary status is inevitably controversial.

And yet, that is what the Supreme Court awarded in Snepp. I think that it is a classic
case of confusing obligation with ownership. Where the judges in the case should
have perceived at best simply a personal remedy in favour of the government, they
turned it into a proprietary obligation on the part of Snepp. The reasoning on this issue
in the per curiam ran as follows:

Snepp’s employment with the CIA involved an extremely high degree of trust.
In the opening sentence of the agreement that he signed, Snepp explicitly
recognized that he was entering a trust relationship. … He deliberately and
surreptitiously violated his obligation to submit all material for prepublication
review. Thus, he exposed the classified information with which he had been
entrusted to the risk of disclosure.

Whether Snepp violated his trust does not depend upon whether his book
actually contained classified information. … The Government simply claims
that, in light of the special trust reposed in him and the agreement that he signed,
Snepp should have given the CIA an opportunity to determine whether the
material he proposed to publish would compromise classified information or
sources. …

The decision of the Court of Appeals denies the Government the most
appropriate remedy for Snepp's acknowledge wrong. Indeed, as a practical
matter, the decision may well leave the Government with no reliable deterrent
against similar breaches of security. No one disputes that the actual damages
attributable to a publication such as Snepp’s generally are unquantifiable.
Nominal damages are a hollow alternative, certain to deter no one. The punitive
damages recoverable after a jury trial are speculative and unusual. Even if
recovered, they may bear no relation to either the Government's irreparable loss
or Snepp’s unjust gain. …

A constructive trust, on the other hand, protects both the Government and the
former agent from unwarranted risks. This remedy is the natural and customary
consequence of a breach of trust. It deals fairly with both parties by conforming
relief to the dimensions of the wrong. If the agent secures prepublication
clearance, he can publish with no fear of liability. If the agent publishes
unreviewed material in violation of his fiduciary and contractual obligation, the

103
AG for Hong Kong v Reid [1993] AC 713; cp Snepp.
104
Westdeutsche Landesbank Girozdentrale v Islington LBC [1996] AC 669 (HL); Lonhro
Exports v Export Credit Guarantee Department [1996] 2 Lloyd’s Rep 649.
105
OBA Enterprises v TMC Trading International (High Court, unreported, 27 November 1998,
Laffoy J).
106
Rotherham Proprietary Remedies in Context (Hart Publishing, Oxford, 2002)
107
Radin “Property and Personhood” 34 Stan L Rev 957 (1982); Rachlinksi and Jourden
“Remedies and the Psychology of Ownership” 51 Vand L Rev 1541 (1998).

18
trust remedy simply requires him to disgorge the benefits of his faithlessness.
Since the remedy is swift and sure, it is tailored to deter those who would place
sensitive information at risk. And since the remedy reaches only funds
attributable to the breach, it cannot saddle the former agent with exemplary
damages out of all proportion to his gain.108

There is not much to go on here, but it is clear that one of the central concerns was the
concern to strip Snepp of his “unjust gain” in circumstances where the normal
measures of damages for breach of contract were insufficient. I do not see why
restitutionary damages in the amount Snepp’s profits would not achieve the same end
of reversing his unjust enrichment. And I certainly do not see why the remedy has to
be the proprietary one of a constructive trust.

True it is that many jurisdictions are experimenting with various flavours of remedial
constructive trusts,109 often influenced by some loose dicta of Cardozo J.110 Hence,
the Supreme Court of Canada has grappled with the issue in a long line of important
cases;111 with fewer knots, the Australian112 and New Zealand113 courts seem also to
have, and it has found a ready home in Ireland, most recently in Kelly v Cahill,114
though English courts remain skeptical.115

Many of these cases flirt with the dangerous non sequitur that if a defendant has been
unjustly enriched at the expense of the claimant, the defendant must hold the
enrichment on remedial constructive trust for the claimant. Indeed, Snepp seems to do
so. But, of course, this cannot be right: unjust enrichment of itself and without more
simply gives rise to a personal duty to make restitution, it does not therefore give the
claimant a proprietary claim against the defendant or justify the imposition of any
kind of trust, let alone the tragically abused remedial constructive trust. Where a
defendant has been unjustly enriched but the claimant seeks a proprietary remedy,
there must either be something else (an alternative proprietary doctrine which applies
in parallel with the unjust enrichment; so that a claimant would have both a personal

108
444 U.S. 507, 516-517. On the question of whether punitive damages really are “speculative
and unusual”, see, eg, WS Dodge “The Case for Punitive Damages in Contracts” 48 Duke LJ 629
(1999) (discussing the issue, though without reference to Snepp); for a theoretical and comparative
discussion, see EJ Weinrib “Punishment and Disgorgement as Contract Remedies” 78 Chicago-Kent L
Rev 55 (2003).
109
Waters The Constructive Trust (Athlone Press, London, 1964) (all instances of the
constructive trust turn on unjust enrichment); Elias Explaining Constructive Trusts (OUP, Oxford,
1991) (constructive trust cases rest on three principles, the perfection of ineffective dispositions, the
reparation of loss, and the restitution of unjust enrichment.); Cope Constructive Trusts (Law Book
Company, Sydney, 1992) (atomistic); Oakley Constructive Trusts (3rd ed, Sweet & Maxwell, London,
1997) (same); Wright The Remedial Constructive Trust (Butterworths, Sydney, 1998) (remedial).
110
Beatley v Guggenheim Exploration Co 225 NY 380, 386 (1919); see Powell “‘Cardozo’s
Foot’: The Chancellor’s Conscience and Constructive Trusts” 56 L & Contemp Probs 7 (1993).
111
From Rathwell v Rathwell (1978) 83 DLR (3d) 289 (SCC) to Soulos v Korkontzilas (1997)
146 DLR (4th) 214 (SCC).
112
From Muschinski v Dodds (1985) 160 CLR 583 (HCA) to Giumelli v Giumelli (1999) 196
CLR 101, 112 (Gleeson CJ).
113
Fortex v Macintosh [1998] 3 NZLR 171 (NZ CA).
114
[2001] 1 IR 56; [2001] 2 ILRM 205 (Lynch J); see E O’Dell “Unjust Enrichment and the
Remedial Constructive Trust” (2001) 23 DULJ (ns) 71.
115
Westdeutsche Landesbank Girozdentrale v Islington LBC [1996] AC 669, 714-716 (Lord
Browne-Wilkinson); In re Goldcorp Exchange [1995] 1 AC 74, 104 (Lord Mustill); Re Polly Peck
International (No 2) [1998] 3 All 812, 831 (Nourse LJ).

19
unjust enrichment claim against a defendant and also have in the alternative an
unconnected, separate, proprietary claim) or something more (a supplementary or
additional factor which, cumulatively with unjust enrichment at the claimant’s
expense, justifies elevating a personal claim into a proprietary one, converting mere
personal obligation into ownership). In the former case, the proprietary remedy co-
exists – fortuitously for the claimant – with the personal unjust enrichment claim; in
the latter, the proprietary remedy is directed to reversing the unjust enrichment. It is
difficult to find either route to an appropriate proprietary remedy in Snepp.

A common objection to the remedial constructive trust is that it would have


undesirable consequences against third parties:116 the “efficiency of commerce
depends upon security of title and protection of third parties from undisclosed
charges”.117 Third parties who deal with debtors are liable to have their expectations
dashed if those debtors are subject to capricious claims which reduce the debtors’
estates. Courts have been astute to craft the terms on which constructive trusts have
been imposed to ensure that they do not prejudice third parties. For example, in the
leading Canadian case of Soulos v Korkontzilas, McLachlin J held that there “must be
no factors which would render imposition of a constructive trust unjust in all the
circumstances of the case; eg the interests of intervening creditors must be
protected”.118 However, the objection of prejudice to third parties has particular force
in the context of the defendant’s insolvency.

Here, the objection is that the remedial constructive trust would have undesirable
consequences against third parties creditors in the defendant’s insolvency who have
“a proper interest in the subject-matter [of the trust] which would be affected by the
imposition of the trust”.119 In particular, the remedial constructive trust would upset
the carefully crafted regime of priorities in insolvency, and, in particular, undercut the
pari passu equality of treatment between claimants whose claims rank the same in the
insolvency.

Nevertheless, US courts sometimes allow claimants to raise remedial constructive


trusts against insolvencies.120 Thus, a remedial constructive trust to recover a
mistaken payment to a bankrupt was imposed in Re Berry. 121 But this position has not
been without its influential critics;122 and in Re Omegas Group Inc: XL/Datacompp
Inc v Wilson,123 the Court of Appeals for the 6th Circuit refused to accord a not merely
mistaken but defrauded claimant a priority in bankruptcy. Omegas has in turn
attracted its own influential critics;124 and in Re Dow Corning Corp,125 Spector J was
116
Sherwin “Constructive Trusts in Bankruptcy” (1989) U Ill L Rev 297, 329, 343-345.
117
Paciocco “The Remedial Constructive Trust: A Principled Basis for Priorities Over Creditors”
(1989) 68 Can Bar Rev 315, 327.
118
(1997) 146 DLR (4th) 214, 230.
119
Fortex v Macintosh [1998] 3 NZLR 171, 175, cp 179 (Tipping J).
120
Sherwin (n000 above) 313-329; the authorities are collected ibid, 313-315 n74 (and I’m not
going to cut and paste that note and set them out here).
121
Re Berry 147 F 298 (1906).
122
Dawson Unjust Enrichment. A Comparative Analysis (Little Brown, Boston, 1951; reprint
Hein, NY, 1999) 26-33; Palmer The Law of Restitution (Little Brown, and Aspen, 1978) plus
Eisenstein (ed) Cumulative Supplement (Little Brown, and Apen, 1996) vol 1 [1.3]-[1.4], [2.14(c)].
123
16 F3d 1443 (1994).
124
Kull “Restitution in Bankruptcy: Reclamation and Constructive Trust” 72 Am Bankcy LJ 265
(1998).
125
192 BR 428 (1996).

20
sympathetic to the project of limiting the role of constructive trusts in bankruptcy but
was nevertheless deeply critical of the decision in Omegas. Hence, US courts accept
that the remedial constructive trust can generate a priority in bankruptcy but properly
treat it with caution.

The point of this element of a rather disjoint analysis is that the constructive trust,
malleable and protean, is a powerful remedy to be treated with caution, and not to be
deployed every which way. The reasoning in the per curiam in Snepp was short, thin,
and loose, and certainly failed to pay a difficult issue sufficient justice. For what it is
worth, I am not against such a development. But deep issues of policy, principle and
precedent arise as to when such powerful proprietary remedies can be awarded.
Where they seem evenly divided, and there are no a priori answers, then the best that
can be done in the interests of certainty is first to adopt a sensible position and then to
apply it consistently, so that, over time, the elements of the discretion can be filled in.
In particular, by keeping one eye on the underlying purpose of reversing unjust
enrichment, courts can become familiar both with the circumstances which will justify
trusts as opposed to personal remedies and with the details and effects of those trusts,
such as their timing, the terms on which their beneficiaries might enforce them, and
the extent to which they generate additional fiduciary duties. This is how rules come
about. But there is none of this in Snepp, and no guidance on any of these issues
either.

4.4 Conclusion: Very Much the Wrong People?


One important note on the House of Lords decision in Blake is entitled “Very Much
the Wrong People”.126 The author’s view is that, whether or not a confiscatory
jurisdiction should be developed, especially a discretionary one, is a matter for
Parliament and statute, and the judges are very much the wrong people to do it. This is
a view that applies with just as much force to Snepp as to Blake. But I think that it is
clear that the confiscatory remedies were imposed in both cases because the spies
were very much the wrong people too. And neither court was prepared to let lack of
solid reasoning get in the way of arriving at what they perceived as the right result.

5. No Free Speech For Spies?


5.1 Introduction: Ghostly Presences - The Free Speech Issues Fleetingly
Considered in Snepp and Blake
In neither Snepp nor Blake was much consideration given to applicable free speech
norms. For example, and rather shockingly, the only mention of the First Amendment
in the text of Powell’s per curiam in Snepp is in a description of the reasoning of the
majority in the Court of Appeals,127 and the only substantive discussion of free speech
issues appears in a single footnote, footnote 3,128 which provides as follows:

The Court of Appeals and the District Court rejected each of Snepp's defenses to
the enforcement of his contract. 595 F 2d 926, 931-934 (CA4 1979); 456 F
126
See Hedley “‘Very much the wrong people’: The House of Lords and publication of spy
memoirs (A-G v Blake)” [2004] WebJCLI <http://webjcli.ncl.ac.uk/2000/issue4/hedley4.html> (last
visited 6 November 2007) taking up a comment in Birks “Three kinds of objection to discretionary
remedialism” (2000) 29 Western Australia L Rev 1, 17.
127
444 US 507, 510.
128
In this, as in so many other ways, Snepp is no US v Carolene Products Co 304 US 144 (1938).

21
Supp., at 180-181. In his petition for certiorari, Snepp relies primarily on the
claim that his agreement is unenforceable as a prior restraint on protected
speech.

When Snepp accepted employment with the CIA, he voluntarily signed the
agreement that expressly obligated him to submit any proposed publication for
prior review. He does not claim that he executed this agreement under duress.
Indeed, he voluntarily reaffirmed his obligation when he left the Agency. We
agree with the Court of Appeals that Snepp’s agreement is an “entirely
appropriate” exercise of the CIA Director's statutory mandate to “protec[t]
intelligence sources and methods from unauthorized disclosure,” 50 USC 403
(d) (3). 595 F 2d, at 932. Moreover, this Court's cases make clear that - even in
the absence of an express agreement - the CIA could have acted to protect
substantial government interests by imposing reasonable restrictions on
employee activities that in other contexts might be protected by the First
Amendment. CSC v Letter Carriers 413 US 548, 565 (1973); see Brown v
Glines [444 US 348 (1980)]; Buckley v Valeo 424 US 1, 25 -28 (1976); Greer v
Spock 424 US 828 (1976); id., at 844-848 (Powell J, concurring); Cole v
Richardson 405 US 676 (1972). The Government has a compelling interest in
protecting both the secrecy of information important to our national security and
the appearance of confidentiality so essential to the effective operation of our
foreign intelligence service. See infra, at 511-512. The agreement that Snepp
signed is a reasonable means for protecting this vital interest.129

On the other hand, and to his credit, the First Amendment is an element of Stevens’s
dissent:

… the Court today grants the Government unprecedented and drastic relief in
the form of a constructive trust over the profits derived by Snepp from the sale
of the book. … The rule of law the Court announces today is not supported by
statute, by the contract, or by the common law. … 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.130 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

129
444 US 507, 509. This is all that remains of the memorandum on First Amendment issues that
Powell had asked his clerk, Gregory May, to produce (see n00 above); and the wording of the second-
last sentence was the result of some discussion with Stewart J (see Powell Papers: …).
130
At this point in the judgment, Stevens J inserted a footnote (footnote 17) as follows:
The mere fact that the Agency has the authority to review the text of a critical book in search
of classified information before it is published is bound to have an inhibiting effect on the
author's writing. Moreover, the right to delay publication until the review is completed is itself
a form of prior restraint that would not be tolerated in other contexts. See, e.g., New York
Times Co v United States 403 US 713 (); Nebraska Press Assn v Stuart 427 US 539 (). In view
of the national interest in maintaining an effective intelligence service, I am not prepared to
say that the restraint is necessarily intolerable in this context. I am, however, prepared to say
that, certiorari having been granted, the issue surely should not be resolved in the absence of
full briefing and argument.

22
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.131

However, whilst he does raise the First Amendment, Stevens doesn not analyse it in
any great depth either. Hence, on this issue, in both judgments in Snepp, there is some
assertion but little analysis. Nevertheless, Snepp is now routinely treated as authority
for the proposition that national security justifies departures from the First
Amendment protections to hold that a system of pre-publication clearance does not
constitute a prior restraint in the classic sense, and that a duty of confidentiality
voluntarily assumed by a government employee is not subject to the same stringent
standards that would apply to efforts to impose restrictions on unwilling members of
the public. Hence, once a government employee signs an agreement not to disclose
information properly classified pursuant to executive order, that employee simply has
no first amendment right to publish the information.

A recent example is provided by Wilson v CIA.132 Here, New York Times journalist
Judith Miller published a story which, among other things, named Valerie Plame as a
CIA spy.133 When she joined the CIA, Plame signed a standard form secrecy
agreement in which she agreed never to disclose classified information which she
obtained in the course of her employment, and to submit publications which could do
so to the CIA for pre-publication review. Plame wrote a memoir about the affair;134
she was prevented by the CIA from writing about various aspects of her employment
with them; and, relying on Snepp, the US Court of Appeals for the Second Circuit
held that this restriction did not infringe her First Amendment right to free speech.

If the record on the speech issues is thin in Snepp, it is positively anaemic in Blake.
Article 10 of the European Convention on Human Rights arose briefly at first instance
before Scott VC;135 there are two passing references to freedom of expression in the
decision of the Court of Appeal;136 and it was faintly raised on the public law point
but not entertained by Lord Nicholls for the majority in the House of Lords.137
Moreover, there is no reference to freedom of expression in the damages discussion at
any level. It is only when the matter is before the European Court of Human Rights
that there is some attempt to make a coherent Article 10 argument on Blake’s behalf,
but by then it is much too late. At the admissibility stage,138 on the Article 10 point,
the Court held:

131. The Court recalls that the penalty imposed on an individual can, of itself,
constitute an interference with an applicant’s right to freedom of … even if that
penalty did not strictly speaking prevent the individual from expressing himself
… In the present case, although the authorities did not prevent the publication of
the Book, they did obtain an order of the House of Lords depriving the applicant
131
444 US 507, 000, 526.
132
Docket No. 07-4244-cv, US Court of Appeals for the Second Circuit, 12 November 2009.
133
In Re Grand Jury Subpoena, Judith Miller 438 F3d 1138 (2006) (US Court of Appeals,
District of Columbia Circuit).
134
Plame Wilson Fair Game. My Life as a Spy, My Betrayal by the White House (Simon &
Schuster, 2008).
135
[1997] Ch 84, 000.
136
[1998] Ch 439, 000.
137
[2001] 1 AC 268, 000.
138
Blake v UK 68890/01 (25 October 2005).

23
of most of his royalties (those still unpaid in the sum of GBP 90,000). The Court
considers that this clearly amounted to an interference with his right to freedom
of expression which requires justification under Article 10 § 2 of the
Convention. …

146. The applicant accepted that the interference pursued the legitimate aims of
national security, supporting the interests of the Crown as employers (the breach
of the confidentiality undertaking) and preventing criminals profiting from their
crimes (his 1961 convictions and subsequent escape from prison in 1966, being
the explanation for the large royalties, see paragraph 141 above). The Court
finds no reason to differ from this view. …

155. In the present case, the Court notes, on the one hand, that the Book did not
contain information which remained confidential in 1990.

156. On the other hand, it recalls that, as the Government pointed out, the
interference with expression was relatively minor. It did not consist of a prior
restraint or any other prevention of the actual expression by the applicant: the
authorities allowed the Book to be published, sold and distributed without
restriction. The present case can therefore be distinguished from the Observer
and Guardian case, cited above and the Sunday Times v. the United Kingdom
(no. 2) case, judgment of 26 November 1991, Series A no. 217, where the
applicants were prevented by injunction from serialising the book when it had
already been published in the US. Any public interest in hearing the applicant’s
information, on which the applicant relied, remained unaffected.

157. Secondly, the Court notes, while the final basis for making an order for an
account of profits was the applicant’s breach of contract (i.e. breach of the
undertaking of confidentiality), that interference was closely connected to the
applicant’s serious criminal past. …

159. Finally, the Court has had regard to the special duties and responsibilities
on members of the secret services to ensure that their conduct does not
undermine the confidence active members may have in their present and future
security …

160. In light of the above, the Court finds that the interference with the
applicant’s freedom of expression in the instant case cannot be said to have been
disproportionate to the legitimate aims pursued. Accordingly, his complaint
under Article 10 is manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and must be declared inadmissible in application of Article 35
§ 4 of the Convention.

This at least is rather longer than in Snepp, but it’s still not very much. And it misses a
great deal of important freedom of expression analysis.

5.2 The Free Speech Issues Missed in Snepp and Blake: Disproportionate
Remedies as Infringements of the Right to Freedom of Expression.
There are deep speech waters in these cases, ranging from prior restraint through how
employment can limit speech to the extent to which contract can limit constitutional

24
rights, to say nothing of the applicable national security concerns which were plainly
driving the outcomes in both cases. But I have run out of time to discuss these issues.
I would rather raise just two questions under this head at this stage.

The first relates to the standard approaches of these courts to freedom of expression
issues in particular, and constitutional rights analysis in general. The majority of the
speech cases that reach the higher courts tend to be challenges against statutory
provisions. And the Courts have developed sophisticated patterns of analysis on how
to measure such statutory restrictions against constitutional rights, and in particular
how to subject the government’s reasons in support of such restrictions to various
degrees of review or scrutiny.139 However, they are far less surefooted where the
restriction derives not from statute but from some private law doctrine or remedy,
such as an equitable injunction, or damages for tort (defamation or invasion of
privacy140) or for breach of contract as in Blake, to say nothing of the constructive
trust for breach of fiduciary duty imposed in Snepp. In principle, the courts should
apply to such private law doctrines the same or similar standards as they apply to
statutes.141 The fact that speech issues were not really taken in either case
demonstrates just how far the Courts have to travel to arrive at this sensible, not to say
necessary, destination.

The second question I want briefly to raise is whether the remedies as granted in those
cases contravened established free speech principles. In New York Times v Sullivan,142
Brennan J for the US Supreme Court not only announced the actual malice rule, he
held as well that size of the punitive damages awarded by the jury also independently
infringed the First Amendment. Similarly, in Tolstoy Miloslavsky v United
Kingdom,143 the European Court of Human Rights held that if damages are too high in
defamation cases, even if there is properly an underlying cause of action, a
disproportionate remedy can still be a breach of Article 10’s protection of freedom of
expression. In Blake, at the admissibility stage, and as a preliminary point, the
government rather faintly argued that there was no interference with Blake’s Article
10 rights at all under Article 10 because he was not prevented from publishing the
book but merely deprived of part of his royalties, but the Court, quite rightly, would
have none of this. Referring to Tolstoy and other similar cases, the Court brusquely
held that a penalty imposed on an individual can of itself an interference with an
applicant’s right to freedom of expression, the confiscation of the unpaid royalties

139
See, eg Stone et al Constitutional Law (5th ed, Apen Publishers, 2005) chapter VII.
140
In Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, [2004]
UKHL 47 (28 October 2004) [17] (Lord Steyn); see also Campbell v MGN Ltd [2005] UKHL 61 (20
October 2005) [26] (Lord Hoffmann); Mosley v News Group Newspapers [2008] EWHC 1777 (QB)
(24 July 2008) [12], [14], [104] (Eady J); Callaghan v Independent News & Media [2009] NIQB 1 (7
January 2009) [24] (Stephens J); Attorney-General’s Reference No 3 of 1999: Application by the
British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34
(17 June 2009) [54] (Lord Browne); Flood v Times Newspapers [2009] EWHC 2375 (QB) (16 October
2009) [139]-[143] (Tugendhat J); Independent News and Media v A [2009] EWHC 2858 (Fam) (12
November 2009) [17] (Hedley J); LNS v Persons Unknown [2010] EWHC 119 (QB) (29 January 2010)
[61]-[65] (Tugendhat J).
141
O’Neil The First Amendment and Civil Liability (Indiana University Press, 2001); Solove and
Richards “Rethinking Free Speech and Civil Liability” 109 Columb L Rev 1650 (2009) (see 1703-1704,
discussing Snepp).
142
376 US 254 (1964).
143
Application no 18139/91, (1995) 20 EHRR 442, [1995] ECHR 25 (13 July 1995).

25
clearly amounted to an interference with his right to freedom of expression which
required justification under Article 10 § 2 of the Convention.

Furthermore, the Government’s attempts to justify the restitutionary remedy were


rather weak, at least as reported in the Court’s judgment. The government argued that
the interference was proportionate, and in particular argued that the need to prevent
deliberate and cynical contract breakers from profiting from their breach justified the
remedy. Now, the fact that the perceived need to prevent deliberate and cynical
contract breakers from profiting from their breach justified the remedy justified the
remedy of an account as a matter of domestic law according to the House of Lords is
neither here nor so far as the Convention is concerned; as Article 10(2) has a closed
list of those factors which can be relied upon as justifications for infringement of
Article 10(1). They include “the interests of national security ..., for the prevention of
disorder or crime, ... [or] for preventing the disclosure of information received in
confidence ...”. But they do not include the need to prevent deliberate and cynical
contract breakers from profiting from their breach.

Blake accepted that these matters iterated in Article 10(2) could justify some remedy
as a matter of principle, but argued that they did not justify a remedy as extensive as
the account of profits actually awarded. And the Court did indeed consider the
substance of Blake’s submissions on that basis (even if, as is usual in these cases, it
did so in a rather oblique fashion). The Court held that the book did not contain
information which remained confidential in 1990, which (presumably) meant that the
government could not really justify the account as being based on the need to prevent
the disclosure of information received in confidence. Rather more to the point, the
Court held that the account of profits for his breach of contract was closely connected
to Blake’s undisputed and serious criminal past as an infamous spy, which
(presumably) meant that both the interests of national security and the need to prevent
disorder or crime were properly implicated. So, legitimate grounds for some
infringement were made out on the facts.

As to whether the infringement [the account of profits] on those grounds was


proportionate, the Court seemed to make two points. It said that the account of profits
was a relatively minor interference with Blake’s right to freedom of expression, and
that members of the secret services have special duties and responsibilities to ensure
that their conduct does not undermine the confidence active members may have in
their present and future security. On this basis, the Court concluded that “the
applicant’s freedom of expression in the instant case cannot be said to have been
disproportionate to the legitimate aims pursued. Accordingly, his complaint under
Article 10 is manifestly ill-founded … and must be declared inadmissible …”.

So, it all comes down to the two points that the account of profits was relatively minor
and that Blake had special duties as one of Her Majesty’s spies which he breached by
going over to the Soviets - it all turned in the European Court of Human Rights, as it
had done in the House, on the fact that he was very much the wrong sort of person.

My initial and tentative view is the first of these points at least must have pervaded
the holding here that there was a proportionate interference with Article 10. I am
uncomfortable, in particular, with the breezy assertion that confiscating St£90,000
was relatively minor. Admittedly, the sum is not in the Tolstoy range (St£1.5m). On

26
the other hand, in Steel and Morris v United Kingdom144 (the notorious “McLibel”
decision) the Court held that awards of St£36,000 against Ms Steel and St£40,000
against Mr Morris) were very substantial when compared to the defendants’ modest
incomes, and that, since McDonald’s had not established that the distribution of the
leaflets had caused any financial loss, the award of damages was not proportionate to
the injury suffered. So what matters is not the absolute number, but its relative effects
in the particular case. And there was no examination of these effects on the facts; nor
could there be, as the matter was dismissed as “manifestly ill-founded” before there
could be full argument.

5.4 Conclusion: Spies Like Us? Baby, we were born to run (but not to publish).
In both Snepp and Blake, freedom of expression got very short shrift. This should not
have been the case. In particular, the remedies awarded in those cases, even if
justifiable in private law terms, should then have been measured against applicable
free speech standards (the First Amendment, Article 10 of the ECHR), on the basis of
standards of review or scrutiny the same or similar as apply to statutes. But this did
not happen, probably because as spies, they were very much the wrong people.

6. Conclusion: Snepp and Blake - Aren’t They a Pair?


“Isn’t it rich, aren’t they a pair?” They’re not quite an odd couple, because they are
very similar.145 Rather, they are a well-matched pair which went overboard on ill-
reasoned private law remedies to the detriment of freedom of expression in both
cases.

Finally, let me return to the first line of the paper. “Espionage is a serious business /
well, I’ve had enough of this serious business” continued the moderately famous Irish
pop singer of the 1980s. I’m sure you have too. Thanks for reading this paper and for
listening to the accompanying presentation.

144
Application no 68416/01, [2005] ECHR 103 (15 February 2005).
145
Neither is an Oscar Madison (sloppy and forging), both are Felix Ungers (straight-laced and
uptight).

27
Appendix
lfp/ss 2/25/80
MEMO TO FILE
United States v. Snepp
Some of the press stories and commentary suggest that the Court’s opinion
[in] Snepp was motivated by publication of The Brethern and a desire of the Court to
create a precedent that would enable it to prevent “leaks”. This speculation is wholly
groundless. Indeed, any careful lawyer who reads the opinion would recognize that –
despite the breast beating by some ACLU lawyers – the case focuses on the CIA and
the necessity of such an organization to maintain secrecy and the appearance of its
ability to do so.
A similar situation could exist with respect to highly sensitive national security
matters known only at the highest levels of government in the White House, National
Security Council, [and] State and Defense Departments. Even none of these requires
quite the same necessity for the appearance of an ability to protect secrecy, as does
the CIA.
In any event, my file totally refutes the press implications and speculations.
Snepp was discussed first at a Court Conference on October 5, 1979, at which time I
express the views that were later incorporated into my opinion. My opinion was first
circulated, as a first draft dissent, on November 16, 1979 – two weeks before the
Woodward book was published. There is no relationship in fact or in principle –
except in the minds of some newsmen – between the Snepp opinion and The Brethern.

L.F.P., Jr.

ss

29

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