Today, EFF and ACLU filed a brief in support of Twitter’s effort to get an appeals court to reconsider its dangerous opinion enforcing a government gag order on Twitter’s 2013 transparency report.
In this long-running and important case, Twitter tried to publish a report bringing much-needed transparency to the government’s use of FISA orders and national security letters, including specifying whether it had received any of these types of requests. However, without going to a court, the FBI told Twitter it could not publish the report as written. Twitter sued, and last month the federal Court of Appeals for Ninth Circuit upheld the FBI’s gag order.
The court’s opinion undermined at least a hundred years of First Amendment case law on “prior restraints,” the term for when government officials forbid private speech in advance. It is a bedrock of constitutional history that prior restraints are subject to unique—and uniquely demanding—protections designed to ensure that the government cannot act as an unreviewable censor and stifle individuals’ right to free speech.
But as we write in the brief, the court’s opinion in this case “carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.” This exception supposedly applies to “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process,” including nondisclosure rules regarding national security requests like the ones Twitter wanted to discuss. Needless to say, this carveout goes against mountains of precedent from the Supreme Court and the Ninth Circuit itself.
The court’s exception to prior restraint rules for information people learn through “legitimate, confidential government processes” is also quite obviously dangerous to democratic oversight of the government. Americans learn information from processes the government considers “legitimate” every day, and the risks of the government suppressing this information are many. Incarcerated persons receive information from the government agencies that control virtually every facet of their lives—from living conditions to medical care. Similarly, the exception would seemingly cover all interactions with law enforcement, border officials, the Internal Revenue Service, the U.S. Post Office, and the courts. It conceivably applies to state and local governmental processes as well. Law enforcement would be able to prevent a witness to a crime from telling their family that they were interviewed, and a criminal suspect who was beaten by police officers during an otherwise legitimate interrogation could be more readily gagged from disclosing that interaction.
We applaud Twitter’s efforts to push back on this drastic rewriting of the First Amendment, and we hope the full Ninth Circuit will decide to rehear the case.