EFF has petitioned a federal appeals court to reconsider its flawed ruling in our national security letter case on behalf of CREDO Mobile and Cloudflare. In July, the Ninth Circuit in San Francisco upheld the NSL statute against our First Amendment challenge. The court ruled that the FBI is entitled to significant deference in its decision to issue NSLs and gag electronic service providers like our clients from telling anyone about these requests for customer records. Now we’re asking the larger en banc Ninth Circuit to rehear the case.
Notably, the court’s opinion made little effort to fit the NSL statute into the body of First Amendment law regarding prior restraints—government gag orders that prevent speech in advance. As our petition explains, the decision “departs from previously undisputed Ninth Circuit and Supreme Court precedent on a doctrine of fundamental constitutional importance: the First Amendment’s near-total prohibition on prior restraints.”
The First Amendment singles out prior restraints for extraordinary scrutiny because their effect is drastic; they eliminate the possibility of discussion and debate entirely, rather than punishing individuals for harmful outcomes of their speech. That’s why courts have traditionally applied a “near-total” ban on prior restraints. In the most famous example, the Supreme Court refused to allow the Nixon administration to stop the publication of the Pentagon Papers by the New York Times and Washington Post. According to several of the justices, in order to stop speech that could harm national security, the government must show that it will “surely result in direct, immediate, and irreparable damage.”
That’s an extremely high bar to meet. So high that no one, not even the government, tries to argue that NSLs meet it. Under the NSL law, the FBI can issue gag orders simply by stating that a broad harm might occur if the recipient can reveal anything about the NSL, including just the simple fact that it has received one.
Even though the Ninth Circuit itself has reiterated the need for “pin-pointed” strict scrutiny of prior restraints in numerous cases since the Supreme Court’s Pentagon Papers decision, it simply brushed this precedent aside in our case. The court instead characterized our call to apply truly strict scrutiny as “quibbling” with the judgments of FBI in issuing NSL gag orders and of Congress in passing the law. Semantics aside, the First Amendment absolutely does require courts to second-guess these judgments when prior restraints are involved. Our petition reminds the full Ninth Circuit of this duty, and we hope it will take the opportunity to fix the damage done to the First Amendment here.