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 “licens
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