A federal appeals court undermined more than a century of First Amendment law by upholding a gag order that kept X—formerly known as Twitter—from discussing the government’s demand for Donald Trump’s account data, EFF argued in a brief urging a re-hearing.
The amicus brief filed Friday in the U.S. Court of Appeals for the District of Columbia Circuit supports X’s request for an en banc rehearing by all of the circuit’s judges; a three-judge panel ruled against X in July and its decision was unsealed in August.
Special Counsel Jack Smith subpoenaed and got a search warrant for the data from the former president’s X account, and both a trial judge and the appeals court ordered Twitter to comply. But the Justice Department also got a nondisclosure order to prevent X from discussing the existence or contents of the search warrant with anyone, including Trump.
That’s a prior restraint of speech, and the July ruling that upheld it made two critical mistakes. First, the three-judge panel wrote that the judicial review standard of “strict scrutiny” applied, requiring a finding that the government acted to further a compelling governmental interest, and that the action was narrowly tailored to achieve that interest. But instead of taking the Supreme Court’s admonition that prior restraint scrutiny is “the most exacting” First Amendment test, the panel claimed X’s speech on information “obtained only by virtue of its involvement in the government’s investigation” was not entitled to that highest level of protection.
Second, the panel ruled that the relevant case law requiring additional procedural protections for prior restraint applies only to “licensing and censorship regimes,” again improperly distinguishing prior restraint imposed on private individuals who are unwillingly forced to participate in government investigations.
“These errors undermine at least a century of jurisprudence subjecting prior restraints to unique—and uniquely demanding—First Amendment scrutiny,” our brief argued, adding X’s petition for en banc review “should be granted so this Court can fully consider whether to approve a drastic rewriting of First Amendment law counter to precedent from the Supreme Court, this Court, and its sister circuits.”
The First Amendment has always protected against prior restraints and the Supreme Court repeatedly has made clear that because prior restraints present such unique dangers, they are permissible only in the rarest cases.
Put simply, the government can’t be allowed to make you keep information secret just because that information came from the government. Americans regularly get information that’s of great public concern “only by virtue of [their] involvement” in governmental and judicial processes: Just think of all the information you get by interacting with law enforcement, border officials, the Internal Revenue Service, the Post Office, the courts, and so on.
The ruling also would let the government more easily gag transparency reporting that shines much-needed light on what the government is doing, particularly the role that online service providers play in surveillance and content takedowns. For example, after the government declassifications accompanying the Edward Snowden surveillance revelations in 2013, the public and the media raised serious questions about the role played by tech companies, and transparency reporting has been a key tool for providers to explain and clarify how they treat government requests.
In fact, the panel itself acknowledged X’s ability and desire to speak on matters of public concern, such as the January 6 investigations. “This speech, which is essential to public oversight and accountability for government surveillance, lies at the heart of the First Amendment’s protections,” our brief argued. “There is no basis for subjecting it to lesser constitutional protection.”
We hope the court agrees to rehear X’s argument.