21 Pages Posted: 19 Jul 2017
Date Written: June 1, 2017
The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression — a restriction that “forbid[s] certain communications when issued in advance of the time that such communications are to occur” — is “the most serious and the least tolerable infringement on First Amendment rights,” and bears a “heavy presumption” of unconstitutionality. Put simply, the prohibition on prior restraints under black letter First Amendment law is “near-absolute.”
The focus of this Essay is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital era. Ongoing litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored Internet communications from a service provider, and to seek a gag order preventing the provider from even notifying a person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. In a February 2017 decision, the court denied the government’s motion to dismiss Microsoft’s First Amendment claims and allowed the suit to proceed.
The court was right to do so, and it should ultimately invalidate the SCA’s gag-order provisions. SCA gag orders are prior restraints on speech, and the statute cannot withstand the heavy scrutiny that applies to them. However, recent decisions addressing the constitutionality of similar gag orders involving National Security Letters suggest that courts are sympathetic to the view that such orders are not “typical” prior restraints, and therefore attract a lesser standard of scrutiny. That premise appears dubious. But even granting it, the SCA poses serious constitutional problems, and it should be either invalidated and then amended or interpreted to avoid those issues. If courts are to carve out an exception allowing for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.
Keywords: Prior Restraint Doctrine, First Amendment, Stored Communications Act, National Security Letters
Suggested Citation: Suggested Citation
Sumar, Al-Amyn, Are All Prior Restraints Equal? The Constitutionality of Gag Orders Issued under the Stored Communications Act (June 1, 2017). Forthcoming, Yale Journal of Law & Technology. Available at SSRN: https://ssrn.com/abstract=3002608