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

U.S. Court of Appeals for the Ninth Circuit, 2014

41 Pages Posted: 6 May 2016

See all articles by Jonathan Manes

Jonathan Manes

Northwestern University - Roderick & Solange MacArthur Justice Center; Yale Law School - Information Society Project

BJ Ard

University of Wisconsin Law School

Nabiha Syed

Stanford Law School Center for Internet and Society; Strumwasser & Woocher, LLP

Michael Strumwasser

Strumwasser & Woocher, LLP

Adrienna Wong

American Civil Liberties Union (ACLU)

Date Written: March 31, 2014

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.

Suggested Citation

Manes, Jonathan and Ard, BJ and Syed, Nabiha and Strumwasser, Michael and Wong, Adrienna, 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 (March 31, 2014). U.S. Court of Appeals for the Ninth Circuit, 2014, Available at SSRN: https://ssrn.com/abstract=2773166

Jonathan Manes (Contact Author)

Northwestern University - Roderick & Solange MacArthur Justice Center ( email )

160 E Grand Ave, 6th Floor
Chicago, IL 60611
United States

Yale Law School - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

BJ Ard

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Nabiha Syed

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

Strumwasser & Woocher, LLP ( email )

Michael Strumwasser

Strumwasser & Woocher, LLP ( email )

Los Angeles, CA

Adrienna Wong

American Civil Liberties Union (ACLU)

CA
United States

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