61 F.4th 686
9th Cir.2023Background
- Twitter sought to publish a "Transparency Report" disclosing aggregate numbers (and finer-grained breakdowns) of NSLs and FISA orders it received for July–December 2013.
- The FBI determined those counts/details were classified and that public disclosure would harm national security; it permitted only a partially redacted release.
- Twitter sued seeking declaratory and injunctive relief, arguing First Amendment and procedural rights (including under Freedman) and seeking that its outside counsel obtain access to classified submissions.
- The government submitted unclassified and classified declarations (ex parte, in camera) explaining national-security harms; the district court ultimately granted summary judgment for the government.
- The Ninth Circuit reviewed classified and unclassified materials, applied strict scrutiny to the content-based restriction, rejected the application of Freedman’s procedural framework here, and held the redactions and procedures constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) First Amendment: Is the government’s restriction content-based and, if so, does it survive strict scrutiny? | Twitter: the report concerns matters of public importance; suppression violates the First Amendment. | Garland: the nondisclosure is content-based but justified by a compelling national-security interest and narrowly tailored redactions. | Court: restriction is content-based → strict scrutiny applies; governmental redactions (supported by classified/unclassified declarations) are narrowly tailored and survive. |
| 2) Applicability of Freedman v. Maryland procedural safeguards to the government’s pre-publication restriction | Twitter: Freedman procedures (short interim restraint, expedited judicial review, government bears burden) are required for prior restraints and apply here. | Garland: disclosures are government confidentiality restrictions, not classic censorship/licensing schemes; Freedman’s specific procedures are not required. | Court: Freedman’s exact procedural framework does not apply; nevertheless, Twitter received substantial process and review adequate here. |
| 3) Adequacy of statutory and administrative procedures (including USA FREEDOM Act pathways) | Twitter: statutory scheme and classification procedures insufficiently protective; government failed to conduct individualized analysis. | Garland: statute and classification process provide targeted, reviewable restrictions (including judicial review) and individualized analysis occurred. | Court: statutory scheme and executive declarations provided sufficient, particularized justification and procedural protections; individualized inquiry performed. |
| 4) Due process / access to classified materials by Twitter’s outside counsel | Twitter: its cleared outside counsel needs access to classified declarations to meaningfully litigate and vindicate First Amendment rights. | Garland: executive-branch need-to-know rules and national-security concerns permit withholding even from cleared private counsel; unclassified summaries were provided. | Court: no constitutional right to classified materials for private litigant’s counsel; unclassified summaries + in camera review and appellate review provided adequate process. |
Key Cases Cited
- Freedman v. Maryland, 380 U.S. 51 (1965) (establishes procedural safeguards for classic prior restraints).
- In re National Security Letter, 33 F.4th 1058 (9th Cir. 2022) (applies strict scrutiny to NSL nondisclosure and explains statutory tailoring and process).
- Dep’t of Navy v. Egan, 484 U.S. 518 (1988) (Executive authority to classify and protect national-security information).
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (protective orders/confidentiality obtained via government processes are not classic prior restraints).
- Butterworth v. Smith, 494 U.S. 624 (1990) (limits on disclosure of grand-jury-taken information analyzed against First Amendment).
- New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon Papers — prior-restraint context; acknowledged but not adopted here as a more demanding test).
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (courts afford deference to government factual judgments on national security).