discretion to determine whether the substance of what he wished to
publish could be disclosed." (Pls.' Brief on Merits at 43). Rather, the
Court noted that Snepp's contract "requires no more than a clearance
procedure subject to judicial review." 444 U.S. at 513 n. 8, 100 S.Ct. at
767 n. 8.
Plaintiffs submit, and the Court finds, that Toobin complied with the
clearance procedures set forth by the OIC. In doing so, Toobin made a
good faith effort over a period of some twelve months to comply with his
prepublication duties and the desires of his former employer.
The defendants' reliance on the Restatement (Second) of Agency also is
challenged by plaintiffs. Plaintiffs argue that the Restatement's
discussion of what constitutes "confidential" information that an agent
may not disclose "rejects defendants' absurdly broad approach." (Pls.'
Brief on Merits at 46). The type of information referred to as
"confidential" by the Restatement is information that, through its
subsequent use, would injur the business of the principal. Plaintiffs
argue that the language of the Restatement is directed to "commercial
activity and competition between rival businesses." (Id. at n. 18). The
Court agrees. See, e.g., Abbott Redmont Thinlite Corp. v. R. Redmont,
475 F.2d 85 (2d Cir. 1973); Consolidated Brands, Inc. v. Mondi,
638 F. Supp. 152 (E.D.N.Y. 1986). The type of information which the OIC
has indicated as "confidential" or "nonpublic" is information concerning
things like the methods of the prosecutors, which are common to
prosecutors everywhere, the type of equipment used by the OIC, and other
such inconsequential information obtained by Toobin during his employment
by the OIC. The Court finds that publication of Opening Arguments would
not constitute a violation of Toobin's fiduciary duty to the OIC, nor
would it give rise to a cause of action for a constructive trust on his
revenues from publication.
2. Contractual Obligations
Defendants submit that Toobin has an express contractual obligation due
to the fact that on the day he left the employ of the OIC, May 4, 1989,
he acknowledged that duty by signing a Non-Disclosure Agreement (the "OIC
Agreement"). The consideration for the OIC Agreement, defendants
contend, was supplied by the fact that Toobin was permitted, on May 3,
1989, to take OIC documents with him without further review. In
addition, the OIC Agreement was basically an acknowledgment of a
pre-existing duty to maintain confidentiality. Finally, the fact that
Toobin signed the OIC Agreement without objection estops him from now
contesting its validity. (Defs.' Rule 6(e) Brief at 23 n.*).
Plaintiffs argue, however, that Toobin has fulfilled any contractual
obligation he had to the OIC. Pursuant to the "Sensitive Compartmented
Nondisclosure Agreement," which he signed on May 4, 1989, Toobin twice
submitted his entire manuscript to the CIA for its prepublication review
for classified information. After each review, the CIA found that the
manuscript contained no classified information. (Toobin Aff. ¶¶ 3 & 5
and Exhs. 2 & 4). As to the OIC Agreement, plaintiffs contest its
validity on several grounds: First, if the OIC Agreement is construed to
penalize disclosure of "unclassified" information, plaintiffs argue that
it is void because it is in contravention of Toobin's First Amendment
rights. Second, defendants waived any rights they may have had to enforce
the agreement by failing to specify their objections to the manuscript
promptly upon receiving it. Third, they say that the OIC Agreement is void
for lack of consideration. (Pls.' Rule 6(e) Brief at 30-32).
a. First Amendment and Timely Objections
Plaintiffs argue that Toobin did not forfeit his First Amendment rights
when he accepted government employment, and that the OIC may not use the
OIC Agreement to impose unconstitutional conditions on his employment.
Further, plaintiffs submit that defendants have waived any objections to
the manuscript by failing timely to set forth specific objections
In McGehee v. Casey, 718 F.2d 1137 (D.C.Cir. 1983), the court reviewed
CIA's classification and censorship scheme to determine whether it
violated the First Amendment. The court found the CIA classification and
censorship scheme to protect "critical national interests," and that the
"district court . . . properly gave deference to the CIA's detailed and
reasoned explanation of its classification decisions." 718 F.2d at 1139.
The McGehee court set forth the standard of review in this type of case:
"(1) when balanced against the first amendment
interest in public disclosure of former agents'
writings, the CIA scheme of classifying and censoring
`secret' information is constitutional because (a) the
government has a substantial interest in assuring
secrecy in the conduct of foreign intelligence
operations, and (b) the criteria for what constitutes
`secret' information are neither overbroad,
considering the governmental interest the scheme
protects, nor excessively vague, considering the
particularity with which the criteria offer guidance
to the censor; (2) in reviewing whether specified
information reasonably could be expected to cause
actual serious harm if divulged, courts should accord
deference to the CIA's reasoned explanation of its
classification decision; and (3) in this case, the CIA
properly classified the censored portions of McGehee's
718 F.2d at 1140. Plaintiffs submit that, applying these standards to the
OIC's prepublication review in this case leads to the conclusion that the
OIC's review process is "excessively vague" and devoid of "reasoned
explanation." The OIC's prepublication review, then, is said to be
The McGehee court found that the secrecy agreement signed by McGehee
"does not extend to unclassified materials or to information obtained
from public sources. The government may not censor such material,
`contractually or otherwise.'" 718 F.2d at 1141. The court stated further
that "[a]n ex-agent should demonstrate, however, at an appropriate time
during the prepublication review, that such information is in the public
domain." Id. at 1141 n. 8. The court stated, "The government has no
legitimate interest in censoring unclassified materials. Moreover, when
the information at issue derives from public sources, the agent's special
relationship of trust with the government is greatly diminished if not
wholly vitiated." Id. at 1141.
Plaintiffs submit first that the majority of information set forth in
the manuscript is in the public domain, and therefore cannot be censored
by the government. The Court agrees that plaintiffs have submitted
sufficient and overwhelming evidence of this previous public disclosure.
Plaintiffs also argue that the OIC's classification of the material as
"Rule 6(e)" and "nonpublic" is too vague to withstand judicial
scrutiny. Further, plaintiffs submit that even when ordered by the Court
to state with particularity their concerns with the manuscript, the OIC
offered vague, unparticularized objections. The Court agrees.
Unlike McGehee, where the court found the CIA guidelines for
classification of material as "Top Secret," "Secret," and "Confidential,"
to be "sufficiently precise to withstand a challenge for unconstitutional
vagueness," the Court in the instant case has found no such precision in
the OIC's objections. As stated above, much of the material labeled as
violative of Rule 6(e) has been found not to disclose Rule 6(e)
material. Further, the information labeled as "nonpublic" often is taken
verbatim from Senate reports and other reliable sources. Also disturbing
is the OIC's inclusion as objectionable material Toobin's opinions,
observations concerning the physical appearances of his co-workers and
his common everyday prosecutorial activities. The OIC's annotations and
objections therefore are far from precise.
In addition, the Court is disturbed by the lack of clarity in the
comments made to Toobin by the OIC after having reviewed his manuscript.
Toobin was told that he needed to obtain the approval of the OIC. (Stip.
Exhs. 9, 20, 22, 25, 26, 27, 29, 30, 31, 33, 36). He also was told that
he would need to obtain CIA clearance. (Stip. Exhs. 20, 24, 26). When
Toobin did obtain the
approval of the CIA, he was chastised by the OIC for having done so
without its permission. (Stip. Exh. 36). Further, after having gotten
approval on disclosure of portions of the manuscript, the OIC informed
Toobin that that approval did not constitute complete clearance. (Stip.
Exh. 24, 26, 31, 47). This is not the sort of speedy review in cases of
prior restraint envisioned by the court in United States v. Marchetti,
466 F.2d 1309, 1317 (4th Cir.), where the court stated, "we think that
the CIA must act promptly to approve or disapprove any material which may
be submitted to it by Marchetti. Undue delay would impair the
reasonableness of the restraint, and that reasonableness is to be
maintained if the restraint is to be enforced," cert. denied,
409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972).
Defendants contend, however, that they have complied with Marchetti,
which set forth that "the maximum period for responding after the
submission of material for approval should not exceed thirty days." 466
F.2d at 1317. Defendants state that "[w]ithin thirty days of each
submission, defendants specifically objected to the use of Rule 6(e) and
nonpublic information. (Exhs. 9, 13, 20, 24, 26, 31)." (Defs.' Mem. at
30). The Court does not agree that defendants' form-letter responses to
Toobin's submissions are within the spirit of Marchetti. The OIC has an
obligation to specify its objections, even without that specific request
from Toobin. The Supreme Court in Bantam Books stated, "Any system of
prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . . We have tolerated
such a system only where it operated under judicial superintendence and
assured an almost immediate judicial determination of the validity of the
restraints." 372 U.S. at 70, 83 S.Ct. at 639. As in Bantam, the Court
finds that "the system at bar includes no such saving features." 372
U.S. at 70, 83 S.Ct. at 639. See New York Times Co. v. United States,
403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per
The Court concludes that the system of prepublication review by the OIC
fails to comport with settled standards required in cases of prior
restraint on expression of government employees, both present and
former. Publication of Opening Arguments therefore will not violate any
contractual duty owed by Toobin to defendants.
Plaintiffs argue that because Toobin signed the OIC Agreement on the
day he left the employ of the OIC, he received nothing in exchange for
it, and it therefore is void for lack of consideration. See Marchetti,
466 F.2d at 1317 n. 6. Defendants argue, however, that the OIC Agreement
merely reaffirmed Toobin's pre-existing obligation of non-disclosure.
Having found that the system of prepublication review employed by the
OIC fails to comport with applicable constitutional standards, the Court
declines to reach this issue.
Plaintiffs' application for a permanent injunction is denied. The
application for a declaration that publication of Opening Arguments would
not subject either Toobin or Penguin to liability for violation of Rule 6
(e) of the Federal Rules of Criminal Procedure is granted, as is the
application for a declaration that publication of the book will not
violate any contractual or fiduciary duty owed by Toobin to defendants
and will not give rise to a cause of action against Toobin for a
constructive trust on his revenues from publication. Defendants' two
counterclaims are denied.
This action having been fully resolved, it is ordered removed from the
active docket of this Court.