Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Contracts Expression
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A District Court in California granted government’s motion for a summary judgment in a long-pending lawsuit filed by Twitter Inc., which brought an action for a declaratory judgment requesting relief from prohibitions on its speech. Specifically, the Twitter claimed violation of their First Amendment right to publish online its “Draft Transparency Report” which described the amount of “national security legal process” it received from the Foreign Intelligence Surveillance Court (FISC). Post the initial submission for review of the Report to the Government in early 2014, Twitter was informed that the information contained in the report was “classified” and cannot be publicly released due to its failure to comply with Government’s pre-approved framework for reporting data about government requests in national security investigations. In a case that underscored a clear rift between the First Amendment and national security concerns, the Court denied Twitter’s motion and found that the classified declarations submitted by the Government satisfied, both substantively and procedurally, the strict scrutiny required to justify a content-based restriction and a prior restraint. This was a reversal of the Court’s earlier order where the Government’s original motion was denied for a failure to meet its high burden to overcome the strong presumption of unconstitutionality on the record before the Court.
On April 1, 2014, Twitter Inc., a global information sharing and distribution network, submitted to the Government a draft transparency report containing details of the aggregate numbers of national security letters (NSL) and court orders pursuant to Foreign Intelligence Surveillance Act, 1978 (FISA) it had received between July to December 2013. The Plaintiff requested a determination as to which parts of the transparency report, if any, were “classified” or, in government’s view, not entitled to be published online.
Five months later, the Government notified Twitter that the information contained in the report was classified and cannot be publicly released on account of a failure to comply with the approved framework of the Government for reporting data on FISA orders and NSLs, as set forth in a letter from then Deputy Attorney General James M. Cole dated January 27, 2014 sent to General Counsels of Facebook, Google, Linkedin, Microsoft and Yahoo! (DAG Letter). Though the framework set forth in the DAG letter was abrogated subsequently by USA FREEDOM Act (which codified and broadened the scope of reporting), the dispute remained unchanged.
Twitter contested the governmental restrictions on its ability to disclose the number of orders or NSLs it received, citing unconstitutional speech restrictions on its ability to respond to government statements about national security surveillance activities and to discuss the actual surveillance of Twitter users. This, according to the Plaintiff, hindered its capacity to communicate truthful information to its users and had a potentially chilling effect on the user’s speech. It, therefore, sought a declaratory and injunctive relief alleging unlawful prior restraints on its speech in violation of the First Amendment principle as well as an improper classification of information in the draft transparency report by the Government.
By an order dated July 6, 2017, the motion previously moved by the Government and based upon the declarations of Michael Steinbach (Executive Assistant Director of National Security Branch of Federal Bureau of Investigation) was denied by the Court. In doing so, the Court found under the applicable constitutional standards that the “the Steinbach declarations were inadequate to meet the Government’s burden to overcome the strong presumption of unconstitutionality of its content-based prior restrictions on Twitter’s speech” [p. 3]. It noted that prior restraints on Twitter’s speech were subject to “highest level of scrutiny” [p. 4] under the First Amendment, and such restrictions were not tailored narrowly so as to prohibit only that speech which posed a “clear and imminent” harm to national security.
In time, a formal request by Twitter followed along with an order to show cause concerning disclosure of classified Steinbach Declaration to Twitter’s counsel. In response to the order to show cause, the Government filed a motion to dismiss the action based on state secrets privilege, and submitted, for the first time, an in camera declaration of Michael C. McGarrity (Acting Executive Assistant Director of National Security Branch of Federal Bureau of Investigation). This declaration gave a comparatively more detailed explanation justifying prohibitions on publication of draft transparency report and the consequent “imminent” harm arising from such disclosure. In light of the McGarrity declaration, the Court sought to reconsider its prior order (dated July 6, 2017) which had denied Government’s motion for summary judgment.
In a new motion for summary judgment supported by classified and unclassified declarations of the Executive Assistant Directors of National Security Branch of Federal Bureau of Investigation, the Government pleaded that its restrictions on disclosure of data were constitutionally valid on account of a reasonable expectation of national security harm. This was contested by Twitter on three grounds:
District Judge Yvonne Gonzalez Rogers delivered the judgment of the District Court. The principle question before the Court was if the Government’s motion satisfied the standard for “strict scrutiny” as laid down in the Pentagon Papers case.
With respect to the initial claim concerning the First Amendment challenge, the Government had argued that it met the strict scrutiny standard as restrictions on Twitter’s speech were sufficiently “narrowly tailored to serve a compelling state interest” [p. 7], basing its argument on the rationale laid down in In re NSL, 863 F.3d 1110, 1123 (9th Cir. 2017) and Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015).
In contrast to Government’s claim, Twitter had argued that there was no substantive reason to revisit the prior determination by the Court dated July 7, 2017 where the restrictions on its speech were declared subject to strict scrutiny as “a content-based restriction and a prior restraint” [p. 7]
While noting that content-based restrictions are presumptively invalid and the burden of proving constitutionality of its actions restricting free speech is placed on the Government [citing numerous decisions including United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816–17 (2000), Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173, 183 (1999), Reno v. American Civil Liberties Union, 521 U.S. 844, 879 (1997) and R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992)], the Court held that such restrictions were, in substance, “narrowly tailored” [p. 7]. In doing so, the Court incorporated “totality” of the evidence, including previously adduced classified declarations by Executive Assistant Directors Steinbach, McGarrity and Tabb.
Based on the above, the Court concluded that any disclosure of information, even years after their publication in the draft transparency report, could lead to a “grave or imminent harm to national security, and that no more tailoring restrictions can be made” [p. 8].
In addition to substantive concerns warranting heightened scrutiny, Twitter also claimed that the First Amendment required procedural safeguards to minimise the extent of any government restrictions on its speech. Such procedural protections, as per the decision in Freedman v. Maryland (1965) include: (i) availability of “expeditious judicial review;” (ii) the government entity seeking to restrain the speech bears the burden seeking judicial review and the burden of proof in court; and (iii) restraints prior to judicial review may be imposed “only for a specified brief period during which the status quo must be maintained”. Since the procedures classifying and restricting the draft transparency report did not satisfy the criteria laid down in Freedman, it contested that it was entitled to a summary judgment solely on that ground.
The Court recognized that meeting the “strict scrutiny” standard does not provide the Government “an unfettered freedom to implement such a restriction through ‘a system of prior administrative restraints’” [p. 9, quoting In re NSL, 863 F.3d at 1122], and procedural safeguards were, in fact, required to reduce a potential for excessive restriction. However, since the complaint filed by Twitter did not seek any declaratory relief requiring the Government to comply with any procedural standards laid down in Freedman (whether it is a government initiated judicial review or a “temporal” limitation on prohibition orders), the Court was unable to grant any affirmative relief based upon lack of compliance of Freedman’s procedural safeguards.
It is important to note that Twitter’s complaint had a limiting effect, as it did not possess any direct challenge to the lack of procedural safeguards under Executive Order 13526, nor did it challenge the lack of process of specific application of the order to the draft transparency report. Thus, the Court found that Twitter failed to allege an affirmative claim for relief, and therefore, did not delve into the question of satisfaction of procedural safeguards as required by Freedman v Maryland.
However, it sought leave for another action to determine whether procedural safeguards in the nature of prior restraints with respect to “classified” information met the Freedman criteria.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment of the First Instance Court contracts freedom of expression, insofar as prior restraints and content based restrictions pose a direct, immediate and irreparable damage to the First Amendment rights. Justice Brennon in his concurrence to the per incurium opinion in Pentagon Papers, 403 U.S. 714 mentioned that “[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.” The Court in that case had also expressed its concerns regarding a wider application of the national security exception, declaring the use of restraints as “permitted in an extremely narrow class of cases such as in times of war to prevent disclosure of such information as troop locations and movements”. Justice Black wrote, “[t]he guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
Even as the risk of disclosure of classified information potentially endangering to the lives of Americans and foreign informants, the notion that the Judiciary should “abdicate” its decision-making responsibility to the executive branch in the presence of national security concerns is equally concerning (In re Washington Post Co., 807 F.2d 383, 391–92 (4th Cir. 1986)). As required by Freedman, any such restriction is required to “provide a heightened justification for sustaining prior restraints on speech so narrowly tailored to serve a compelling government interest”. However, as the First Instance Court noted in its earlier judgment, restrictions on Twitters functioning as a social media outlet is much more like the kind of restraints on “speakers in public fora, distributors of literature, or exhibitors of movies” that would not permit an exception to strict scrutiny. At the same time, loose claims premised on national security grounds allow the Government to operate in secrecy in all matters which relate, even remotely, to national security, leading to a wholesale suspension of First Amendment rights.
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