A ruling from the Ninth Circuit Court of Appeals earlier this week marks a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech. In Twitter v. Garland, the court ruled that it was not a violation of the First Amendment for the Justice Department to censor a draft transparency report on the aggregate number of national security demands Twitter received in the second half of 2013. It’s a disappointing, dangerous opinion that may well empower even broader uses of government power to censor speech by unwilling participants in government investigations.
In 2014, Twitter submitted its draft transparency report to the FBI to review. The FBI redacted the report, prohibiting Twitter from sharing the total number of foreign intelligence surveillance orders the government had served within a six-month period in aggregate bands such as 1-99. In response, Twitter filed suit in order to assert its First Amendment right to share that information. To be clear, Twitter did not plan to share any detail about the requests such as the targets or other identifying information.
In April 2020, a federal district court dismissed Twitter’s First Amendment claim. Among the several concerning aspects of the opinion, the judge devoted only a single paragraph to analyzing Twitter’s First Amendment right to inform the public about law enforcement orders for its users’ information. Twitter appealed to the Ninth Circuit, and EFF and the ACLU filed an amicus brief in support of the appeal.
A Dangerous Precedent
Not only did the Ninth Circuit uphold the lower court’s ruling, it went out of its way to find that a large, well established body of prior restraint law did not apply. As we wrote in our amicus brief, when the government seeks to stop the publication of speech, it must satisfy “extraordinarily exacting” scrutiny. This includes a substantive demonstration both that the prior restraint is truly the only means of preserving the government’s interest, and a series of procedural requirements designed to ensure that a censor’s decisions are quickly and adequately reviewed by an independent court. But the Ninth Circuit applied a much more deferential test for the government’s need for a gag. Worse still, it held that exacting procedural protections against prior restraints do not apply to “the disclosure of information transmitted confidentially as part of a legitimate government process, because such restrictions do not pose the same dangers to speech rights as do traditional censorship regimes.”
We’ve fallen a long way from the Supreme Court’s 1971 decision in the Pentagon Papers case. There, the Supreme Court upheld the New York Times’ right to publish classified reports about the failure in Vietnam despite strenuous government claims that it would seriously damage national security. This Ninth Circuit decision deepens a trend of “prior restraint lite” cases, in which the government can silence speakers who wish to talk about their involvement in government investigations in ways that would be completely unthinkable in other contexts of censorship. This is, in fact, the crux of the Ninth Circuit’s rationale: because transparency reports originate out of a company’s involvement with the government’s own classified doings, rather than a creative or journalistic endeavor like a movie or news article, the government supposedly has more control over the information.
According to the opinion, gags on recipients of national security demands do not “present the grave dangers of a censorship system” like film licensing boards. But it does little to explain why the government’s interest in limiting discussion of its secret investigations—legitimate as that might be—presents no risk of overreaching censorship. The history of the national security state—from the Pentagon Papers to the NSA’s warrantless wiretapping program—suggests the opposite.
The creation of national security exceptions to the Constitution are worrying enough, but they must not be allowed to migrate into other areas of law. We’ll be watching for any attempts to rely on this latest decision to justify restrictions on transparency reporting and other speech by participants in government investigations outside of the national security context.