News Flash: Only “Customary” Speakers Protected From Prior Restraint

National Security Letters Upheld As Constitutional

From the post:

A federal judge has unsealed her ruling that National Security Letter (NSL) provisions in federal law—as amended by the USA FREEDOM Act—don’t violate the Constitution. The ruling allows the FBI to continue to issue the letters with accompanying gag orders that silence anyone from disclosing they have received an NSL, often for years. The Electronic Frontier Foundation (EFF) represents two service providers in challenging the NSL statutes, who will appeal this decision to the United States Court of Appeals for the Ninth Circuit.

“Our heroic clients want to talk about the NSLs they received from the government, but they’ve been gagged—one of them since 2011,” said EFF Deputy Executive Director Kurt Opsahl. “This government silencing means the service providers cannot issue open and honest transparency reports and can’t share their experiences as part of the ongoing public debate over NSLs and their potential for abuse. Despite this setback, we will take this fight to the appeals court, again, to combat USA FREEDOM’s unconstitutional NSL provisions.”

This long-running battle started in 2011, after one of EFF’s clients challenged an NSL and the gag order it received. In 2013, U.S. District Court Judge Susan Illston issued a groundbreaking decision, ruling that the NSL power was unconstitutional. However, the government appealed, and the Ninth Circuit found that changes made by the USA FREEDOM Act passed by Congress last year required a new review by the District Court.

In the decision unsealed this week, the District Court found that the USA FREEDOM Act sufficiently addressed the facial constitutional problems with the NSL law. However, she also ruled that the FBI had failed to provide a sufficient justification for one of our client’s challenges to the NSLs. After reviewing the government’s justification, the court found no “reasonable likelihood that disclosure … would result in danger to the national security of the United States,” or other asserted dangers, and prohibited the government from enforcing that gag. However, the client still cannot identify itself because the court stayed this portion of the decision pending appeal.

The district court’s decision has many low points, perhaps the lowest is its quoting of the Second Circuit in John Doe, Inc. v. Mukasey:

Although the nondisclosure requirement is in some sense a prior restraint,… it is not a typical example of such a restriction for it is not a restraint imposed on those who customarily wish to exercise rights of free expression, such as speakers in public fora, distributors of literature, or exhibitors of movies. And although the nondisclosure requirement is triggered by the content of a category of information, that category, consisting of the fact of the receipt of an NSL and some related details, it far more limited than the broad categories of information that have been at issue with respect to typical content-based restrictions.

In the court’s judgment since customary speakers weren’t at issue, there’s no protection from prior restraint.

What a bizarre concept.

Are you a speaker in a public fora, distributor of literature, exhibitor of movies?

Well, I don’t qualify as an exhibitor of movies.

Nor do I qualify as a distributor of literature, at least in the sense of a traditional publisher.

Hmmm, do you think I qualify as a speaker in a public fora?

Perhaps, perhaps, but considering the tortured lengths the court went to reach its decision, what do you think the odds are that Wolf Blizer is a speaker in a public fora and I’m not?

Or you for that matter?

Support the EFF in this fight, it’s your right to be informed about FBI excesses and to raise those with your elected representatives that is at stake.

One Response to “News Flash: Only “Customary” Speakers Protected From Prior Restraint”

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