Monday, March 06, 2023

Twitter v. Garland (9th Cir. - March 6, 2023)

We teach law students that prior restraints on speech imposed by the government are so dangerous that we don't generally allow them. But the Ninth Circuit today holds that this particular prior restraint is just fine.

Twitter wants to let the public know generally how many subpoenas it receives from the government each year that allegedly relate to national security (as well as what type). The federal government doesn't allow that, and instead calls this information "classified." So Twitter -- and its employees -- know full well how many subpoenas are received, but can't tell anyone. Under penalty of imprisonment.

That's a prior restraint. One that the Ninth Circuit holds is just fine, since "national security" would be allegedly harmed if the public knew what a plethora of Twitter (and Google, Microsoft, Yahoo!, etc.) employees already know. We have to make sure that the public isn't aware of how many subpoenas tech companies get each year, because our "enemies" could use that information to harm our country.

It's definitely about that, not simply a desire to keep the public in the dark. Because there's no precedent for the government using alleged national security concerns as a means of hiding things from the public.

If the controlling question at issue was whether the existing regulation -- which allows some disclosure -- allows enough disclosure, I could see reasonable arguments on both sides. But the opinion by Judge Bress goes much further than that, and is extremely deferential to the government's alleged interest in keeping these things secret. (Judge VanDyke's concurring opinion is even more deferential.)

Were the question limited to whether the government can stop Twitter from telling people that it didn't receive, say, any subpoenas in a particular category, I could see how that might be legitimately classified. But I would think that, particularly in the context of a prior restraint, it wouldn't be permissible for the government to try to hide, say, that 4500 subpoenas (rather than 450) were issued annually to Twitter. I'd think that the public would legitimately want to know that, and that the disclosure of that fact outside of Twitter employees themselves wouldn't harm national security pretty much at all, much less at a level that authorizes a prior restraint.

But what do I know? It's a Brave New World these days.