Over sixty years ago, the Faculty of Laws at University College London established the Current Legal Problems lecture series and accompanying annual volume as a major reference point for a broad range of legal scholarship opinion, theory, methodology, and subject matter, with an emphasis upon contemporary developments of law. The lectures are held at the Faculty of Law, Bentham House, Endsleigh Gardens, London WC1 from 6-7pm; they are open to the public and free of charge. This week‘s current legal issue is:
Spies Like Us? Frank Snepp and George Blake: Freedom of Speech and Restitutionary Remedies
“Espionage is a serious business” sang a moderately famous Irish pop singer of the 1980s. 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 US 444 US 507 (1980) and of the House of Lords in AG v Blake [2001] 1 AC 268; [2000] UKHL 45 (27 July 2000) 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.
The paper will seek to do three things. First, it will 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, the paper will begin with these stories, tales and sagas.
Second, it will 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, it will 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, common law and equitable doctrines and remedies can be made subject to constitutional speech standards.
I had to follow the link to discover that you were giving the paper! :) Best of luck!
I’m a bit unclear as to why a restitutionary remedy would even be on the cards in these sorts of cases. I can see why, say, a celebrity who had been the subject of invasive photographs may want restitution: Their image is their primary product and the tabloid has expropriated that image without permission to make a profit.
However, in these cases the state hasn’t really suffered any pecuniary loss. The loss, to the extent that one has been suffered, is an increased risk to national security; however this would be almost impossible to quantify or, even if it could be quantified, bears no relation to the amount of profit made on the books sales.
The only motivation I can really see here on the part of the state is a vindictive attempt to punish the author, and presumably, to deter other individuals who may be in the same position. Given the ineffectual nature of pre-publication injunctions (as made very clear by the Spycather saga) is the state just falling back on restitution to try to stop leaks?
Thanks for the good wishes. As for your comment:
Exactly!