Brief of Amici Curiae Floyd Abrams Institute for Freedom of Expression and First Amendment Scholars in Support of the Parties Under Seal In Re: National Security Letter

Abstract

The nondisclosure orders that routinely accompany National Security Letters (“NSLs”) prohibit individuals who have received NSLs from publicly saying anything at all about them. Under the statute, these gag orders are presumptively permanent. The court below was correct to invalidate the statute under the First Amendment, but its reasoning was incorrect insofar as it held that NSL gag orders are not akin to “classic prior restraint[s]” and therefore not subject to the “extraordinarily rigorous” First Amendment standards applicable to such prohibitions on speech.

NSL gag orders bear all the indicia of classic prior restraints: they preemptively forbid core protected speech about the government’s activities; prohibit far more speech than constitutionally justified; are imposed by executive fiat; and operate in obscurity, shielding their censorious effects from public scrutiny. Moreover, NSL recipients have a significant interest in speaking about NSLs in order to reassure their customers, to expose government overreaching, or in their capacity as media companies and content providers.