The National Security Letter case reported yesterday is Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D. N.Y. 2007):
. . . This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs’ motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D. N.Y. 2004) (“Doe I“). “Considering the implications of its ruling and the importance of the issues involved,” the Court stayed enforcement of its judgment pending appeal. See id. at 526.
Shortly after this Court’s decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F. Supp. 2d 66, 82 (D. Conn. 2005) (“Doe II“).
While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192. (Mar. 9, 2006) (the “Reauthorization Act.”). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions ‘relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 (“§ 3511”). As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir. 2006).
The gag rule on NSL recipients violates the First Amendment:
C. STRICT SCRUTINY
The Court’s analysis begins by noting that for the same reasons articulated in Doe I, see 334 F. Supp. 2d at 511-13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content-based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511-12; see also Doe II, 386 F. Supp. 2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) “authorizes suppression of speech in advance of its expression.” Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989); see also Alexander v. United States, 509 U.S. 544, 550 (1993) (“The term prior restraint is used to ‘describe administrative and judicial orders forbidding certain communications in advance of the time that such communications are to occur.'”) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984)) (emphasis added in Alexander).
Additionally, the amended § 2709(c) continues to act as a content-based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content-based restriction because it prohibited disclosure irrespective of a speaker’s viewpoint. See 334 F. Supp. 2d at 512. The Court disagreed, finding that although the pre-Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content-based restriction because it closed off an “entire topic” from public discourse. See id. at 513 (“‘The First Amendment’s hostility to content-based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.'”) (quoting Consolidated Edison Co. of New York v. Public Serv. Comm’n, 447 U.S. 530, 537 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that “the first-hand experiences of NSL recipients,” id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content-based restriction, stated that it had “the practical impact of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives.” 386 F. Supp. 2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government’s use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress’s consideration of the Reauthorization Act.
Presumably, Congress’s intention in amending 2709(c) to allow the FBI to certify on a case-by-case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an “entire topic” of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to “contravene the fundamental principle that underlies [the Supreme Court’s] concern about ‘content-based’ speech regulations: that ‘government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.'” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). The Government’s position is that the FBI’s discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counterterrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government’s alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content-neutral. See Forsyth County, 505 U.S. at 134 (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”).
As a prior restraint and content-based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F. Supp. 2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court’s prior determination in Doe I. (See Gov’t Opp. 11.)
The statute can survive strict scrutiny only if it is “narrowly tailored to promote a compelling government interest,” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), and there are no “less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997). Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content based restrictions are presumptively invalid.”); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”); Playboy Entm’t Group, 529 U.S. at 816 (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”).
. . .
As was the case with the Court’s initial decision, fundamentally this ruling is “about the process antecedent to the substance of any particular challenge.” Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002). Moreover, the government must exercise its discretion within (a system that allows for “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects.
