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.
Background
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
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