Twitter, Inc. v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TWITTER, INC., No. 20-16174
Plaintiff-Appellant,
D.C. No. 4:14-cv-
v. 04480-YGR
MERRICK B. GARLAND, Attorney
General; UNITED STATES OPINION
DEPARTMENT OF JUSTICE;
CHRISTOPHER WRAY, Director of
the Federal Bureau of Investigation;
FEDERAL BUREAU OF
INVESTIGATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted August 10, 2021
Seattle, Washington
Filed March 6, 2023
Before: Carlos T. Bea, Daniel A. Bress, and Lawrence
VanDyke, Circuit Judges.
2 TWITTER, INC. V. GARLAND
Opinion by Judge Bress;
Concurrence by Judge VanDyke
SUMMARY *
Civil Rights
The panel affirmed the district court’s summary
judgment for the United States in an action brought by
Twitter alleging First Amendment violations arising from
the FBI’s restrictions on Twitter’s publication of a self-
described “Transparency Report.”
In support of its classified national security
investigations, the United States served administrative
subpoenas and orders requiring Twitter to provide the
government with certain information about Twitter users. In
its Transparency Report, Twitter wished publicly to disclose
certain information about the aggregate numbers of these
governmental requests that it received between July and
December 2013. The FBI determined that the number of
subpoenas and orders and related information was classified,
and that Twitter’s disclosure of this information would harm
national security. As a result, the FBI allowed Twitter to
release its Transparency Report only in a partially redacted
form.
The panel held that Twitter’s constitutional challenges
failed to persuade. Under this circuit’s case law, strict
scrutiny applied because the restriction on Twitter’s speech
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TWITTER, INC. V. GARLAND 3
was content based. The panel acknowledged that Twitter
has a First Amendment interest in commenting on matters of
public concern involving national security
subpoenas. Nevertheless, based on a careful review of
classified and unclassified information, the panel held that
the government’s redactions of Twitter’s Transparency
Report were narrowly tailored in support of the compelling
government interest in national security. Against the
backdrop of explicit illustrations set forth in the classified
materials of the threats that exist and the ways in which the
government can best protect its intelligence resources, the
panel was able to appreciate why Twitter’s proposed
disclosure would risk making foreign adversaries aware of
what is being surveilled and what is not being surveilled—if
anything at all. Given these concerns and this fuller
backdrop, the panel was willing to accept the main
conclusions outlined in the unclassified materials, which
expressed generally why revealing the information Twitter
wished to disclose would significantly harm the
government’s national security operations by signaling to
adversaries what communication channels to avoid and
which to use. The panel concluded that the government’s
redactions of Twitter’s Transparency Report did not violate
the First Amendment.
The panel next held that the statutory scheme governing
the permissible disclosure of aggregate data about the receipt
of national security legal process allowed for sufficient
procedural protections, which Twitter received here. The
panel held that the specific procedural requirements of
Freedman v. Maryland, 380 U.S. 51 (1965), which were
designed to curb traditional censorship regimes, were not
required in the context of government restrictions on the
disclosure of information transmitted confidentially as part
4 TWITTER, INC. V. GARLAND
of a legitimate government process because such restrictions
do not pose the same dangers to speech rights as do
traditional censorship regimes. Even though Freedman’s
specific procedural framework did not apply, Twitter
received considerable process—including some of the
process that Freedman envisioned.
Finally, the panel held that due process did not require
that Twitter’s outside counsel receive classified information
by virtue of Twitter filing this lawsuit. Twitter was provided
with unclassified versions of the various declarations, which
the panel relied upon throughout its opinion. The
unclassified declarations provided Twitter with sufficient
information by which to advance Twitter’s interests before
this Court. And although the panel appreciated Twitter’s
concern that it could not respond to what it did not know,
Twitter’s interest in the classified information did not rise to
the level of constitutional imperative.
Concurring in the judgment, Judge VanDyke agreed
with the majority’s conclusion in this case, and most aspects
of its analysis, with the only significant disagreement being
whether the panel needed to rely on classified materials to
resolve this case. Judge VanDyke concluded that the
unclassified materials were sufficient to meet the
government’s burden. Given the “significant weight” a
court must afford to the Government’s national security
factual findings, Judge VanDyke would hold that the
Government’s unclassified declarations—specifically, the
unclassified declaration from Jay S. Tabb, Jr., the new
Executive Assistant Director of the FBI’s National Security
Branch—sufficiently demonstrated that the Government’s
restrictions on Twitter’s speech were narrowly tailored to the
compelling interest of protecting national security and
safeguarding classified information.
TWITTER, INC. V. GARLAND 5
COUNSEL
Lee H. Rubin (argued), Donald M. Falk, and Samantha C.
Booth, Mayer Brown LLP, Palo Alto, California; Andrew
John Pincus, Mayer Brown LLP, Washington, D.C.;
Samantha A. Machock, Wilson Sonsini Goodrich Rosati,
San Diego, California; for Plaintiff-Appellant.
Lewis S. Yelin (argued) and Scott R. McIntosh, Appellate
Staff Attorneys, Civil Division; David L. Anderson, United
States Attorney; Jeffrey Bossert Clark, Acting Assistant
Attorney General; United States Department of Justice;
Washington, D.C.; Stefania M. Porcelli, Assistant General
Counsel; Cecilia O. Bessee, Acting Deputy General
Counsel; Jason A. Jones, General Counsel; Federal Bureau
of Investigation; Washington, D.C.; for Defendants-
Appellees.
Andrew G. Crocker and Naomi Gilens, Electronic Frontier
Foundation, San Francisco, California; Ashley Gorski, Brett
Max Kaufman, and Patrick Toomey, American Civil
Liberties Union Foundation, New York, New York;
Matthew T. Cagle, ACLU Foundation of Northern
California, San Francisco, California; Peter J. Eliasberg,
ACLU Foundation of Southern California, Los Angeles,
California; David Loy, ACLU Foundation of San Diego and
Imperial Counties, San Diego, California; for Amici Curiae
Electronic Frontier Foundation, American Civil Liberties
Union, American Civil Liberties Union of Northern
California, American Civil Liberties Union of Southern
California, and American Civil Liberties Union of San
Diego and Imperial Counties.
6 TWITTER, INC. V. GARLAND
OPINION
BRESS, Circuit Judge:
In support of its classified national security
investigations, the United States served administrative
subpoenas and orders requiring Twitter to provide the
government with certain information about Twitter users. In
a self-described “Transparency Report,” Twitter wishes
publicly to disclose certain information about the aggregate
numbers of these governmental requests that it received
between July and December 2013. The FBI determined that
the number of subpoenas and orders and related information
was classified, and that Twitter’s disclosure of this
information would harm national security. As a result, the
FBI allowed Twitter to release its Transparency Report only
in a partially redacted form.
This dispute over what Twitter can and cannot disclose
about information it learned as a recipient of national
security legal process raises several important questions that
lie at the intersection of national security and the freedom of
speech: Does the government’s content-based limitation on
Twitter’s speech violate the First Amendment? Do the
relevant national security statutes provide sufficient
procedural protections to Twitter, consistent with the First
Amendment? And does due process require that Twitter’s
outside counsel be granted access to the classified materials
on which the United States relies in objecting to Twitter’s
proposed disclosure?
We hold that Twitter’s constitutional challenges fail to
persuade. Although we acknowledge Twitter’s desire to
speak on matters of public concern, after a thorough review
of the classified and unclassified record, we conclude that
TWITTER, INC. V. GARLAND 7
the government’s restriction on Twitter’s speech is narrowly
tailored in support of a compelling government interest: our
Nation’s security. We further hold that the statutory scheme
governing the permissible disclosure of aggregate data about
the receipt of national security legal process allows for
sufficient procedural protections, which Twitter received
here. Due process likewise does not require that Twitter’s
outside counsel receive classified information by virtue of
Twitter filing this lawsuit.
Although the interests on both sides of this case are
weighty, under law the government prevails. We affirm the
district court’s grant of summary judgment to the United
States.
I
A
It is widely recognized that electronic communications
are used by persons who seek to harm the United States
through terrorist activities or other misdeeds. See, e.g.,
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402–06 (2013).
To that end, federal law gives the United States the authority
to obtain information from electronic communication
service providers in support of national security
investigations. Two such means of obtaining information
are relevant here.
First, under 18 U.S.C. § 2709, the FBI is empowered to
issue certain requests to any “wire or electronic
communication service provider,” such as Twitter. See id.§§ 2510(15), 2711(1) (defining “electronic communication
service”). These requests are known as “national security
8 TWITTER, INC. V. GARLAND
letters,” or NSLs. 50 U.S.C. § 1873(e)(3)(A). 1 An NSL
directs its recipient to provide the FBI with “subscriber
information and toll billing records information, or
electronic communication transactional records in [the
recipient’s] custody or possession.” 18 U.S.C. § 2709(a).
Such information must be “relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.” Id. § 2709(b)(1); see
also John Doe, Inc. v. Mukasey, 549 F.3d 861, 876 (2d Cir.
2008). NSLs thus allow the government to collect the
aforementioned metadata, but not the actual content of
electronic communications. See 18 U.S.C. § 2709; David
Kris & J. Douglas Wilson, National Security Investigations
and Prosecutions § 20:6 (Westlaw, Sept. 2021 Update).
To ensure needed secrecy, the FBI may prohibit an NSL
recipient from disclosing that it has received an NSL if a
sufficiently high-ranking FBI official certifies that the
absence of a prohibition on disclosure may result in any one
of four enumerated harms. 18 U.S.C. § 2709(c)(1)(A).
Those harms consist of: (1) “a danger to the national security
of the United States,” (2) “interference with a criminal,
counterterrorism, or counterintelligence investigation,” (3)
“interference with diplomatic relations,” and (4) “danger to
the life or physical safety of any person.” Id. §
2709(c)(1)(B). When such a certification has been made, the
NSL recipient may not “disclose to any person that the
Federal Bureau of Investigation has sought or obtained
access to information or records under this section.” Id.
§ 2709(c)(1)(A). The prohibition on disclosure is subject to
judicial review under 18 U.S.C. § 3511. See id. § 2709(d).
We will refer to this prohibition as the “NSL nondisclosure
1
We note that Title 50 has not been enacted as positive law.
TWITTER, INC. V. GARLAND 9
requirement” or the “individual NSL nondisclosure
requirement.”
Second, the FBI can seek surveillance-related orders
under the Foreign Intelligence Surveillance Act (FISA). 50
U.S.C. §§ 1801–1885c. Such orders, commonly known as
“FISA orders,” are issued under one of five “titles” of FISA:
Title I authorizes electronic surveillance, id. §§ 1801–1813;
Title III authorizes physical searches, id. §§ 1821–1829;
Title IV authorizes the use of “pen registers” and “trap and
trace devices,” id. §§ 1841–46 2; Title V authorizes the
compelled production of “tangible things,” such as business
records, id. §§ 1861–64; and Title VII authorizes acquisition
of foreign intelligence through the targeting of non-U.S.
persons located outside the United States, id. §§ 1881–
1881g. While NSLs provide the government with only non-
content data, FISA orders may compel the production of
either content or non-content data. See Kris & Wilson,
supra, § 13:5.
With some exceptions, FISA orders relating to domestic
surveillance ordinarily require authorization from the
Foreign Intelligence Surveillance Court (FISC). Compare
50 U.S.C. §§ 1805(a), 1824(a), 1842(a)–(b), 1862(a)–(b),
with id. §§ 1802(a), 1822(a). FISA orders relating to persons
reasonably believed to be abroad may be authorized by
directives issued by the Attorney General or the Director of
National Intelligence. See id. §§ 1881a–1881c. See Kris &
Wilson, supra, § 17:17.
2
Pen registers and trap and trace devices, respectively, capture the phone
number associated with an outgoing or incoming call (or other
communication) on a given communication line. 50 U.S.C. § 1841(2);
see also 18 U.S.C. § 3127(3)–(4).
10 TWITTER, INC. V. GARLAND
Recipients of FISA orders generally are required to
“protect [the] secrecy” of the government surveillance. 50
U.S.C. § 1805(c)(2)(B) (Title I); see also id.§§ 1824(c)(2)(B) (Title III), 1842(d)(2)(B)(i) (Title IV),
1862(d)(2) (Title V), 1881a(i)(1)(A) (Title VII). Recipients
of certain types of FISA orders must also “maintain under
security procedures approved by the Attorney General and
the Director of Central Intelligence any records concerning
the surveillance or the aid furnished that such person wishes
to retain.” Id. § 1805(c)(2)(C) (Title I); see also id.
§§ 1824(c)(2)(C) (Title III), 1842(d)(2)(B)(ii)(II) (Title IV),
1881a(i)(1)(B) (Title VII). A FISA order recipient may
obtain judicial review of a nondisclosure obligation in the
FISC. See, e.g., id. § 1881a(i)(4). Further review may be
sought in the Foreign Intelligence Surveillance Court of
Review. 50 U.S.C. § 1881a(i)(6)(A).
B
The government closely guards information relating to
NSLs and FISA orders. The President has the “authority to
classify and control access to information bearing on
national security.” Dep’t of Navy v. Egan, 484 U.S. 518, 527
(1988). In the exercise of that authority, the President has
“prescribe[d] a uniform system for classifying [and]
safeguarding” national security information. Classified
National Security Information, Exec. Order No. 13,526
pmbl., 75 Fed. Reg. 707, 707 (Dec. 29, 2009), as corrected
by 75 Fed. Reg. 1,013 (Dec. 29, 2009).
Information that is classified falls into one of three
levels: “Confidential,” “Secret,” and “Top Secret.” Id.§ 1.2(a), 75 Fed. Reg. at 707–08. Of these levels, “Top
Secret” is the highest, reserved for “information, the
unauthorized disclosure of which reasonably could be
TWITTER, INC. V. GARLAND 11
expected to cause exceptionally grave damage to the national
security.” Id. § 1.2(a)(1), 75 Fed. Reg. at 707. Certain
classified information is further designated “sensitive
compartmented information,” or “SCI.” See Office of the
Director of National Intelligence, Intelligence Community
Directive 703, Protection of Classified National
Intelligence, Including Sensitive Compartmented
Information (2013) (“ICD 703”). This information
“require[s] special controls and handling within the United
States Intelligence Community.” Doe v. Cheney, 885 F.2d
898, 902 n.2 (D.C. Cir. 1989); see also ICD 703. Individuals
with a security clearance must be granted additional
permission to be allowed access to information designated
SCI. See, e.g., ICD 703; Romero v. Dep’t of Def., 658 F.3d
1372, 1373–74 (Fed. Circ. 2011).
Access to classified information is further restricted to
individuals meeting criteria that the President has identified:
“A person may have access to classified information
provided that: (1) a favorable determination of eligibility for
access has been made by an agency head or the agency
head’s designee; (2) the person has signed an approved
nondisclosure agreement; and (3) the person has a need-to-
know the information.” Exec. Order No. 13,526 § 4.1(a), 75
Fed. Reg. at 720.
“No information may remain classified indefinitely.” Id.
§ 1.5(d), 75 Fed. Reg. at 709. The default period during
which classified information remains classified is ten years.
Id. § 1.5(b), 75 Fed. Reg. at 709. However, the classifying
official may specify an earlier date (or the occurrence of a
certain event) upon which the information is automatically
declassified, or he may extend the duration of classification
to up to 25 years where necessary. Id. § 1.5(a), (c), 75 Fed.
Reg. at 709. Agencies must also undertake periodic
12 TWITTER, INC. V. GARLAND
reassessments of classified designations upon request. Id.
§ 3.5(a), (d), 75 Fed. Reg. at 717–18. Unauthorized
disclosure of classified materials is subject to punishment.
See, e.g., 18 U.S.C. § 798(a)(3).
Under this classification system, and prior to 2014, all
information about the aggregate number and types of
national security legal process received by any recipient was
considered classified and therefore barred from public
disclosure. But following Edward Snowden’s unauthorized
disclosure of classified documents in 2013, and in response
to requests from electronic service providers, the
government made a change in policy to achieve greater
transparency.
In early 2014, then-Director of National Intelligence
James Clapper issued the “DNI Memorandum,” which
declassified “certain data related to requests by the United
States to communication providers for customer
information” made through FISA orders and NSLs. That
same day, then-Deputy Attorney General James M. Cole
issued a letter (“the DAG Letter”) addressed to Facebook,
Google, LinkedIn, Microsoft, and Yahoo!, which permitted
the same disclosures as the DNI Memorandum.
The following year, Congress enacted the USA
FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268
(found in scattered sections of Titles 18 and 50 U.S. Code),
which enacted into law, and expanded, the categories of
information that the DNI Memorandum and DAG Letter
allowed to be disclosed. Id. §§ 603–604, 129 Stat. 295–97.
The relevant provision, now codified at 50 U.S.C. § 1874,
allows any “person subject to a nondisclosure requirement
accompanying” a FISA order or an NSL publicly to disclose
certain limited information about his receipt of national
TWITTER, INC. V. GARLAND 13
security process using one of four enumerated pathways. Id.§ 1874(a). A recipient may choose to release information
under one of the following four options:
(1) a semiannual report on the number of
NSLs, FISA content orders and FISA non-
content orders in bands of 1000, with some
breakdowns by authority for non-content
information; (2) a semiannual report on the
number of NSLs, FISA content orders and
FISA non-content orders in bands of 500; (3)
a semiannual report on the total national
security process received in bands of 250; or
(4) an annual report on the total national
security process received in bands of 100.
H.R. Rep. No. 114-109, pt. 1, at 27 (2015) (summarizing
the statutory provisions); see also 50 U.S.C. § 1874(a); Kris
& Wilson, supra, § 13:5.
These bands are notable not only for their breadth—the
tightest band is 100—but for the fact that each of the bands
begins with, and includes, zero. For instance, an entity
reporting under option two that received one FISA content
order and three FISA non-content orders, but no NSLs,
would indicate that it received between 0 and 499 FISA
content orders, between 0 and 499 FISA non-content orders,
and between 0 and 499 NSLs. Under the statute, such an
entity could not indicate that it received no NSLs at all. We
will refer to this as the “aggregate nondisclosure
requirement,” so as to distinguish this system from the NSL
nondisclosure requirement in 18 U.S.C. § 2709(c), which
pertains to disclosing the receipt of individual NSLs.
14 TWITTER, INC. V. GARLAND
C
On April 1, 2014, Twitter transmitted to the FBI a two-
page draft document that it referred to as a “Transparency
Report.” The Report was entitled “Empowering users with
more #transparency on national security surveillance.” In its
Transparency Report, and as described in its operative
complaint in this lawsuit, Twitter sought to publish the
following information regarding the NSLs and FISA orders
that it had received from July 1, 2013 to December 31, 2013:
a. The number of NSLs and FISA orders
Twitter received, if any, in actual
aggregate numbers (including “zero,” to
the extent that that number was
applicable to an aggregate number of
NSLs or FISA orders, or to specific kinds
of FISA orders that Twitter may have
received);
b. The number of NSLs and FISA orders
received, if any, reported separately, in
ranges of one hundred, beginning with 1–
99;
c. The combined number of NSLs and FISA
orders received, if any, in ranges of
twenty-five, beginning with 1–24;
d. A comparison of Twitter’s proposed (i.e.,
smaller) ranges with those authorized by
the DAG Letter;
e. A comparison of the aggregate numbers
of NSLs and FISA orders received, if any,
by Twitter and the five providers to
TWITTER, INC. V. GARLAND 15
whom the DAG Letter was addressed
[Facebook, Google, LinkedIn, Microsoft,
and Yahoo!]; and
f. A descriptive statement about Twitter’s
exposure to national security
surveillance, if any, to express the overall
degree of government surveillance it is or
may be subject to.
In a letter to the FBI accompanying the Report, Twitter
requested “a determination as to exactly which, if any, parts
of its Transparency Report are classified or, in the
[Department of Justice’s] view, otherwise may not lawfully
be published online.” The Transparency Report sought to
educate Twitter users about the extent of the federal
government’s surveillance requests of Twitter and the
degree to which Twitter’s platform was safe from secret
governmental prying. The draft Transparency Report further
expressed Twitter’s “inten[t] to make this kind of report on
a regular basis.” 3
In a September 9, 2014 response to Twitter, the FBI set
forth its “conclu[sion] that information contained in the
report is classified and cannot be publicly released.” The
letter indicated that the Transparency Report was
“inconsistent with the [DAG Letter] framework and
discloses properly classified information.” In particular, the
FBI explained that information in the Report “would reveal
classified details about the surveillance . . . that go beyond
what the government has permitted other companies to
3
Nothing in our opinion quotes or discloses materials that have been
deemed classified. Any quotations of Twitter’s draft Transparency
Report are to unredacted portions only.
16 TWITTER, INC. V. GARLAND
report.” The FBI specifically objected that the Transparency
Report “would disclose specific numbers of orders received,
including characterizing the numbers in fractions or
percentages, and would break out particular types of process
received.” This information, the FBI explained, was
classified, and its release would harm national security.
But the FBI nonetheless “believe[d] there [was]
significant room for Twitter to place the numbers in context”
by informing its users that, for instance, “only an
infinitesimally small percentage of its total number of active
users was affected” by government surveillance requests.
Twitter would thus be “permitted to qualify its description of
the total number of accounts affected by all national security
legal process it has received but it cannot quantify that
description with the specific detail” that Twitter desired.
D
After receiving the FBI’s letter, Twitter filed this lawsuit
in October 2014, challenging the government’s suppression
of the full Transparency Report and seeking injunctive and
declaratory relief. Subsequently, after the USA FREEDOM
Act was passed in June 2015, Twitter filed the operative
Second Amended Complaint (SAC). In its SAC, Twitter
claimed that the redacted information in the Report “was
improperly classified” and that the government’s prohibition
on Twitter’s publishing that information violated the First
Amendment. Twitter also sought “to disclose that it received
‘zero’ FISA orders, or ‘zero’ of a specific kind of FISA
order, for [the] period [covered by the Report], if either of
those circumstances is true.”
On November 22, 2016, the government moved for
summary judgment. The government’s motion relied on the
unclassified and classified declarations of Michael B.
TWITTER, INC. V. GARLAND 17
Steinbach, the then-Executive Assistant Director (EAD) of
the FBI’s National Security Branch. The EAD is responsible
for “overseeing the national security operations of the FBI’s
Counterintelligence Division, Counterterrorism Division,
High-Value Detainee Interrogation Group, Terrorist
Screening Center, and Weapons of Mass Destruction
Directorate.” The EAD has “also been delegated original
classification authority by the Director of the FBI.” The
classified Steinbach declaration, and all future classified
declarations that the government would submit, were filed
ex parte with the district court for the court’s in camera
review.
The district court denied the government’s motion for
summary judgment “without prejudice to a renewed motion
upon a more fulsome record.” The district court held that
strict scrutiny applied to the government’s attempt to restrict
the Transparency Report’s full publication and that the
Steinbach declarations were insufficient to show that the
government’s required redactions were narrowly tailored in
support of the government’s compelling interest in national
security.
Twitter had also argued that under Freedman v.
Maryland, 380 U.S. 51 (1965), neither the government’s
classification decision nor the USA FREEDOM Act
contained sufficient procedural safeguards to ensure the
protection of Twitter’s First Amendment rights. For
applicable prior restraints, Freedman requires that “(1) any
restraint prior to judicial review can be imposed only for a
specified brief period during which the status quo must be
maintained,” “(2) expeditious judicial review of that
decision must be available,” and “(3) the censor must bear
the burden of going to court to suppress the speech and must
bear the burden of proof once in court.” Thomas v. Chicago
18 TWITTER, INC. V. GARLAND
Park Dist., 534 U.S. 316, 321 (2002) (quoting FW/PBS, Inc.
v. Dallas, 493 U.S. 215, 227 (1990) (principal opinion of
O’Connor, J.)). In denying summary judgment without
prejudice, the district court suggested that the government’s
classification decision and the governing statutory scheme
violated Freedman’s commands. In that same order, the
district court also directed the government to proceed with
granting two of Twitter’s outside lawyers, including Lee H.
Rubin, “security clearances that would permit review of
relevant classified materials in this matter.”
Although Rubin’s background investigation was
completed and favorably adjudicated, the government
refused to provide Rubin access to the classified materials
on the ground that Twitter’s outside counsel lacked a need
to know this information. In support of its refusal to allow
Rubin access to classified materials, the government
submitted an unclassified declaration from Carl Ghattas,
then-EAD of the FBI’s National Security Branch. Mr.
Ghattas indicated that the classified Steinbach declaration
and its exhibits were “classified at the TOP SECRET level
and contain Sensitive Compartmented Information.” Mr.
Ghattas then explained that Twitter’s counsel “do[es] not
have a need for access to or a need-to-know the classified
FBI information at issue in this case.” Specifically, Mr.
Ghattas concluded, “it does not serve a governmental
function . . . to allow plaintiff’s counsel access to the
classified FBI information at issue in this case to assist in
representing the interests of a private plaintiff who has filed
this civil suit against the government.”
On December 5, 2018, Twitter filed a request that Rubin
be given access to the classified Steinbach declaration. In
response, the government filed a declaration by then-
Attorney General William P. Barr asserting the state secrets
TWITTER, INC. V. GARLAND 19
privilege over the information contained in the classified
Steinbach declaration. Attorney General Barr’s declaration
relied on a pair of unclassified and classified declarations by
Michael C. McGarrity, then-Acting EAD of the FBI’s
National Security Branch. The government submitted the
McGarrity declarations for the district court’s review.
On June 21, 2019, and in response to the new
declarations, the district court issued an order to show cause
why it should not reconsider its denial of summary
judgment. The district court indicated that the classified
McGarrity declaration “provides an explanation of the
Government’s basis for restricting the information that can
be published in the Draft Transparency Report, and the grave
and imminent harm that could reasonably be expected to
arise from its disclosure, in far greater detail than the
Government provided previously.” The court thus indicated
its likely view that the government’s restrictions on Twitter’s
speech were narrowly tailored and that Rubin should not
receive the classified materials because of “national security
concerns.”
The parties then filed cross-motions for summary
judgment. In support of its motion, the government relied
on newly submitted classified and unclassified declarations
from Jay S. Tabb, Jr., the new EAD of the FBI’s National
Security Branch. This time, the district court granted the
government’s motion for summary judgment.
The district court did not revise its earlier conclusion that
“the restrictions on Twitter’s speech are subject to strict
scrutiny as a content-based restriction and a prior restraint.”
But it found that based on “the totality of the evidence
provided in this case,” including all three of the classified
declarations from EADs Steinbach, McGarrity, and Tabb,
20 TWITTER, INC. V. GARLAND
that the government had satisfied strict scrutiny. Citing “the
specific reasons identified in the classified declarations,” the
district court found that those declarations “explain the
gravity of the risks inherent in disclosure of the information”
at issue by providing “a sufficiently specific explanation of
the reasons disclosure of mere aggregate numbers, even
years after the relevant time period in the Draft Transparency
Report, could be expected to give rise to grave or imminent
harm to the national security.” The district court determined
that the government’s supporting declarations sufficiently
justified its classification decision, and that “no more narrow
tailoring of the restrictions can be made.”
The district court also denied Twitter relief under the
procedural requirements of Freedman, but only on the basis
that “Twitter’s SAC d[id] not allege a challenge, facial or
otherwise, based upon the principles in Freedman.” The
district court reasoned that “nothing in the SAC challenges a
‘system of prior restraints’ as in Freedman.” Accordingly,
the court did not “reach the question of whether the
Government’s decision here satisfied those procedural
safeguards.” In a footnote, however, the district court noted
that “[t]he sort of pre-disclosure review and approval process
that restricts speech about metadata compiled by a recipient
closely resembles the censorship systems raised in
Freedman and its progeny.” The district court further opined
that the government had “offered no applicable procedural
protections similar to those cited with approval in” In re
National Security Letter, 863 F.3d 1110, 1128 (9th Cir.
2017), and John Doe, Inc. v. Mukasey, 549 F.3d 861, 875 (2d
Cir. 2008), two cases that we discuss further below. Finally,
the district court denied Twitter’s request that its counsel
receive access to the classified Tabb declaration. That
declaration could not “be disclosed to counsel for Twitter
TWITTER, INC. V. GARLAND 21
based upon the national security concerns it raises, despite
counsel’s clearance approval.”
Twitter timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and review the grant of summary judgment de
novo. Butcher v. Knudsen, 38 F.4th 1163, 1168 (9th Cir.
2022). On appeal, we were provided with classified
information, which was made available for our review using
specialized procedures that ensured its protection. See
generally Robert Reagan, Keeping Government Secrets: A
Pocket Guide on the State-Secrets Privilege, the Classified
Information Procedures Act, and Classified Information
Security Officers (Federal Judicial Center, 2d ed. 2013)
[hereinafter Reagan, Keeping Government Secrets].
II
We turn first to the question of whether the government’s
restriction on Twitter’s speech violates the First
Amendment. We hold that under our case law, strict scrutiny
applies to that inquiry. We acknowledge that Twitter has a
First Amendment interest in commenting on matters of
public concern involving national security subpoenas.
Nevertheless, based on our careful review of classified and
unclassified information, we hold that the government’s
redactions of Twitter’s Transparency Report were narrowly
tailored in support of the compelling government interest in
national security.
A
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. “When enforcing this prohibition, [courts]
distinguish between content-based and content-neutral
regulations of speech.” Nat’l Inst. of Family & Life
22 TWITTER, INC. V. GARLAND
Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018).
Content-based restrictions “are presumptively
unconstitutional and may be justified only if the government
proves that they are narrowly tailored to serve compelling
state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015).
“A regulation of speech is facially content based under
the First Amendment if it targets speech based on its
communicative content—that is, if it applies to particular
speech because of the topic discussed or the idea or message
expressed.” City of Austin v. Reagan Nat’l Advert. of Austin,
LLC, 142 S. Ct. 1464, 1471 (2022) (quotations and alteration
omitted). “Regulations draw such a distinction if they ‘target
speech based on its communicative content,’ prohibit ‘public
discussion of an entire topic,’ or ‘single[] out specific subject
matter for differential treatment.’” In re Nat’l Sec. Letter
(“NSL”), 33 F.4th 1058, 1072 (9th Cir. 2022) (amended
opinion) (alteration in original) (quoting Reed, 576 U.S. at
163, 169).
In NSL, we considered a First Amendment challenge to
18 U.S.C. § 2709(c), which, as we discussed above,
generally prohibits the recipient of a national security letter
from disclosing the fact of its receipt. Id. at 1063. NSL
recognized that § 2709(c) “prohibits speech about one
specific issue: the recipient may not ‘disclose to any person
that the Federal Bureau of Investigation has sought or
obtained access to information or records’ by means of an
NSL.” Id. at 1072 (quoting 18 U.S.C. § 2709(c)). We
therefore recognized that the restriction § 2709(c) imposes
was content based because it “target[ed] speech based on its
communicative content,’ and restricts speech based on its
‘function or purpose.’” Id. (quoting Reed, 576 U.S. at 163).
And “[w]hen the government restricts speech based on its
TWITTER, INC. V. GARLAND 23
content, a court will subject the restriction to strict scrutiny.”
Id. at 1070.
NSL requires strict scrutiny here because the restriction
on Twitter’s speech is content based. Twitter is subject to a
series of statutory nondisclosure obligations based on its
receipt of NSLs and FISA orders. See 18 U.S.C. § 2709(c);
50 U.S.C. §§ 1805(c)(2)(B), 1824(c)(2)(B),
1842(d)(2)(B)(i), 1862(d)(2), 1881a(i)(1). The USA
FREEDOM Act effectively created an exception to these
prohibitions for certain disclosures about the aggregate
receipt of national security process, within the predefined
numerical bands explained above. See 50 U.S.C. § 1874(a);
H.R. Rep. No. 114-109, pt. 1, at 27; Kris & Wilson, supra,
§ 13:5. But Twitter’s Transparency Report seeks to provide
more detail than the USA FREEDOM Act allows to be
disclosed. The nature of the government’s restriction on
Twitter therefore necessarily arises from the content of
Twitter’s proposed disclosure. Indeed, the government’s
entire basis for seeking to limit Twitter’s disclosure is that
public release of the classified content will harm national
security. Thus, we are confronted with a content-based
restriction, just as we were in NSL.
Under circuit precedent, we review the government’s
restriction on Twitter’s speech under the traditional First
Amendment strict scrutiny framework. NSL was clear on
this point, holding that strict scrutiny applied to the
nondisclosure requirement in 18 U.S.C. § 2709(c) applicable
to the receipt of individual NSLs. NSL, 33 F.4th at 1071–73.
NSL governs us; there is no basis in law or logic to apply a
different tier of scrutiny to the speech restriction now before
us. The nondisclosure requirements imposed on recipients
of national security legal process at issue here are effectively
identical to those we considered in NSL, just aggregated—
24 TWITTER, INC. V. GARLAND
instead of being prohibited from disclosing the receipt of one
letter, the recipient is prohibited from disclosing the receipt
of a certain number of letters or orders.
Both sides in this case ask for something other than strict
scrutiny, but their arguments are foreclosed by our holding
in NSL. The government suggests that some lesser form of
scrutiny should apply, but NSL is directly contrary on this
point. See id. at 1071–73. And while Twitter maintains that
an even higher standard of “extraordinarily exacting”
scrutiny should apply, NSL specifically rejected that
argument. See id. at 1076 n.21 (holding that a request to
apply “a higher standard than strict scrutiny” was
“meritless,” and that New York Times Co. v. United States
(Pentagon Papers), 403 U.S. 713 (1971) (per curiam), did
not require otherwise). Thus, under circuit precedent, the
restriction on Twitter’s speech is a content-based limitation
that we review under the strict scrutiny framework.
B
To satisfy strict scrutiny, a restriction on speech is
justified only if the government demonstrates that it is
narrowly tailored to serve a compelling state interest. Reed,
576 U.S. at 163; NSL, 33 F.4th at 1070. There is no dispute
about the government’s compelling interest here. “It is
‘obvious and unarguable’ that no governmental interest is
more compelling than the security of the Nation.” Haig v.
Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Sec’y
of State, 378 U.S. 500, 509 (1964)); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010). It
follows that “keeping sensitive information confidential in
order to protect national security is a compelling government
interest,” too. NSL, 33 F.4th at 1072 (citing Egan, 484 U.S.
TWITTER, INC. V. GARLAND 25
at 527; Snepp v. United States, 444 U.S. 507, 509 n.3
(1980)).
This case thus turns on the narrow-tailoring prong of the
strict scrutiny framework. To be narrowly drawn, a
“curtailment of free speech must be actually necessary to the
solution.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799
(2011). “If a less restrictive alternative would serve the
Government’s purpose, the legislature must use that
alternative.” United States v. Playboy Ent. Grp., Inc., 529
U.S. 803, 813 (2000). But while a “restriction is not
narrowly tailored if less restrictive alternatives would be at
least as effective in achieving the legitimate purpose that the
statute was enacted to serve,” we have previously observed
in this same general context that strict scrutiny does not
require the content-based restriction to be “perfectly
tailored.” NSL, 33 F.4th at 1073 (first quoting Reno v. Am.
Civil Liberties Union, 521 U.S. 844, 874 (1997); and then
quoting Williams-Yulee v. Fla. Bar, 575 U.S. 433, 454
(2015)). The government is entitled deference when it
comes to factual judgments bearing on national security. See
Humanitarian Law Project, 561 U.S. at 33–34 (explaining
that in the area of national security and foreign affairs, the
“evaluation of the facts by the Executive, like Congress’s
assessment, is entitled to deference”). But at the same time,
“[w]e do not defer to the Government’s reading of the First
Amendment, even when” national security interests are at
stake. Id. at 34.
Our decision in NSL, which is the most closely analogous
precedent, demonstrates the type of careful review that strict
scrutiny requires in this context. In NSL, we considered and
rejected an as-applied challenge to the statutory provisions
governing the non-disclosure requirements attached to
individual NSLs. See NSL, 33 F.4th at 1073–76; 18 U.S.C.
26 TWITTER, INC. V. GARLAND
§ 2709(c). “Analyzing the statute as a whole,” we held that
the statutory scheme was narrowly tailored to the
government’s compelling national security interest in
protecting the details of its intelligence investigations. NSL,
33 F.4th at 1074. In particular, we emphasized the statutory
requirement that the government must make an
“individualized analysis of each [NSL] recipient” when
imposing nondisclosure restrictions—an analysis that “may
include consideration of the size of the recipient’s customer
base.” Id. This mandatory, focused inquiry ensured that the
government would not exercise unfettered discretion but
rather guaranteed that it would have to substantiate each
nondisclosure requirement based on the individual
circumstances. Id.
The required means-end connection between the
restriction imposed and the government’s national security
interest was also established through the “narrow, objective,
and definite” statutory standards that defined the contours of
the government’s authority to impose nondisclosure
restrictions. Id. The statute confined the imposition of
individual NSL nondisclosure obligations to particular
situations, such as when disclosure threatened ongoing
counterintelligence operations or would endanger the lives
of others. Id. (citing 18 U.S.C. § 2709(c)). This supported
a sufficiently close fit between the government’s speech
restriction and its national security goals. Id.We also noted that the statute ameliorated concerns that
a change in circumstances could render the continued
imposition of the nondisclosure obligations unnecessary. Id.
at 1075. We highlighted the ready availability of judicial
review in which the government had the burden of
demonstrating the “continued necessity” of the restriction,
which ensured that the limitation on speech was not “in place
TWITTER, INC. V. GARLAND 27
longer than [wa]s necessary to serve the government’s
compelling interest.” Id. at 1075–76.
Considered as a whole, NSL instructs that under the
narrow tailoring prong of the strict scrutiny analysis, we
must guarantee that the means by which the government is
limiting Twitter’s speech—here, redacting portions of the
Transparency Report—is sufficiently calibrated toward
protecting the government’s proffered national security
interest. And to guarantee that fit, we must satisfy ourselves
that the government made a sufficiently particularized
inquiry that substantiates the need for the redactions in the
specific context in which Twitter operates. See id. at 1073–
76. Against this legal backdrop, we now turn to whether the
government’s restriction on Twitter’s speech is narrowly
tailored.
To meet its burden under strict scrutiny, the government
in the district court submitted three rounds of classified and
unclassified declarations to support its position that
information in Twitter’s Transparency Report was classified
and could not be publicly disclosed without endangering
national security. These declarations culminated in the
classified and unclassified declarations of Jay S. Tabb, Jr.,
the EAD of the FBI’s National Security Branch. After an
extended review of these materials, the district court found
that based on “the totality of the evidence provided in this
case, including the classified declarations,” the government
had satisfied strict scrutiny and “no more narrow tailoring of
the restrictions can be made.”
In a case such as this involving information that the
government contends is classified, we may review the
classified materials ex parte and in camera. See, e.g.,
Kashem v. Barr, 941 F.3d 358, 385 (9th Cir. 2019);
28 TWITTER, INC. V. GARLAND
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1086
(9th Cir. 2010) (en banc); Kasza v. Whitman, 325 F.3d 1178,
1180 (9th Cir. 2003); Kasza v. Browner, 133 F.3d 1159,
1168–69 (9th Cir. 1998). Having intently studied the
classified and unclassified materials in the record, we agree
with the district court’s considered assessment.
While we are not at liberty to disclose the contents of the
classified materials that we reviewed, our analysis under the
narrow tailoring prong depends principally on the
knowledge we gleaned from our review of that
material. The classified materials provided granular details
regarding the threat landscape and national security concerns
that animated the higher-level conclusions presented in the
unclassified declarations. The classified declarations spell
out in greater detail the importance of maintaining
confidentiality regarding the type of matters as to which
intelligence requests are made, as well as the frequency of
these requests. Against the fuller backdrop of these explicit
illustrations of the threats that exist and the ways in which
the government can best protect its intelligence resources,
we are able to appreciate why Twitter’s proposed disclosure
would risk making our foreign adversaries aware of what is
being surveilled and what is not being surveilled—if
anything at all. Given these concerns and this fuller
backdrop, we are willing to accept the main conclusions
outlined in the unclassified materials, which express
generally why revealing the information Twitter wishes to
disclose would significantly harm the government’s national
security operations by signaling to our adversaries what
communication channels to avoid and which to use.
Viewed in light of the classified declarations, Mr. Tabb’s
Unclassified Declaration thus compellingly explains how
the redactions on Twitter’s Transparency Report in the
TWITTER, INC. V. GARLAND 29
specific context of Twitter’s operations are well-calibrated
to achieving the government’s national security goals.
Taken as a whole, the government’s declarations specifically
and persuasively explain why Twitter’s proposed
Transparency Report may not be released in fully unredacted
form.
Mr. Tabb’s Unclassified Declaration explains that “the
information about Twitter’s receipt of national security
process that was redacted from Twitter’s draft Transparency
Report is properly classified.” Unclassified Tabb Decl. ¶ 5.
Mr. Tabb also well describes how any “unauthorized
disclosure reasonably could be expected to result in serious
damage to the national security.” Id. In particular,
“disclosure of the information at issue here would provide
international terrorists” and other bad actors with “a
roadmap to the existence or extent of Government
surveillance and capabilities associated with Twitter.” Id.More generally, “[d]isclosure of the information Twitter
seeks to publish would provide highly valuable insights into
where and how the United States is or is not deploying its
investigative and intelligence resources.” Id. at ¶ 7. This
“would tend to reveal which communications services may
or may not be secure, which types of information may or
may not have been collected, and thus whether or to what
extent the United States is or is not aware of the activities of
these adversaries.” Id.
Mr. Tabb further explained why the granular nature of
the information that Twitter seeks to publish would pose
particular problems. Specifically, Mr. Tabb cautioned,
“[d]isclosure of the kind of granular data regarding the
national security legal process received by Twitter, as set
forth in its draft Transparency Report, would reveal such
information as:
30 TWITTER, INC. V. GARLAND
(i) incremental increases or decreases in
collection over time, which would show
whether the Government has a significant
presence or investigative focus on a
particular platform;
(ii) the collection of content or non-content
information, which would show whether
and to what extent the Government is
collecting certain types of information on
that platform; and
(iii)the fact of whether or when the recipient
received a particular type of process at all,
which may reflect different collection
capabilities and focus on that platform,
different types of information collected,
and locations of FBI targets.
Unclassified Tabb Decl. ¶ 17. “[B]y detailing the amount, if
any, of each particular type of process Twitter had received
during a particular period, and over time, this data would
reveal the extent to which Twitter was or was not a safe
channel of communication for our adversaries.” Id. ¶ 18. As
Mr. Tabb concluded, “[t]he granularity of the data that
Twitter seeks to publish would reveal or tend to reveal
information about the extent, scope, and reach of the
Government’s national security collection capabilities and
investigative interests—including its limitations and
vulnerabilities.” Id. ¶ 21.
Mr. Tabb also explained that if Twitter were allowed to
make its granular disclosures, other recipients of national
security process would seek to do the same. And the result
would be an even greater exposure of U.S. intelligence
TWITTER, INC. V. GARLAND 31
capabilities and strategies. As Mr. Tabb wrote, “[i]f the
Court were to grant Twitter the relief it seeks in this case,
other providers would almost certainly seek to make the
same types of disaggregated, granular disclosures regarding
their receipt of national security process.” Id. ¶ 20. If that
were allowed, it would “provide a comprehensive picture of
the Government’s use of national security process that
adversaries would use to evaluate the Government’s
collection capabilities and vulnerabilities, as well as its
investigative practices.” Id.
Throughout his Unclassified Declaration, Mr. Tabb
notes that greater detail and further explanation is provided
in his Classified Declaration. Mr. Tabb further incorporates
the classified declarations from the other government
officials who preceded him in his role. As noted above, we
have carefully reviewed the classified declarations in
camera. And, as we have explained, those declarations
provide more particularized reasons why the specific
information Twitter seeks to publish would harm national
security, reflecting the government’s individualized analysis
of Twitter’s proposed disclosure. Mr. Tabb’s Classified
Declaration, and the additional classified materials on which
it relies, are compelling. His Classified Declaration, in
combination with the other classified and unclassified
materials, has convinced us that the government’s restriction
on Twitter’s speech is narrowly tailored and survives strict
scrutiny.
Twitter’s arguments to the contrary are unpersuasive.
Twitter argues that the government, prior to preventing the
Transparency Report’s full disclosure, should have
conducted an “individualized” inquiry into whether the
publication should be prevented, and that the government
failed to do so. Twitter bases this asserted requirement on
32 TWITTER, INC. V. GARLAND
Florida Star v. B.J.F., 491 U.S. 524, 540 (1989), in which
the Supreme Court held that some “individualized
adjudication” was required before a state could impose tort
liability upon a newspaper that published the name of a rape
victim. But here the record indicates that the FBI did
conduct an individualized analysis of the harms that would
be caused by Twitter’s disclosure of the unredacted Report.
Our review of the record, including the classified materials,
confirms that Twitter’s allegation is not correct.
Twitter also argues that the government’s consideration
of how other companies might disclose similar information
violates the “individualized” inquiry requirement. But
Twitter conflates two separate issues. The government
could conduct an individualized inquiry into the harm that
Twitter’s disclosure would make, including the harm that
would be caused if an adversary considered the information
Twitter disclosed alongside similar information from other
companies. The government’s inquiry is no less
“individualized” simply because it took into account the fact
that if Twitter were allowed to publish the information in
question, many other companies would do the same, leading
to serious national security consequences. Twitter points to
no contrary authority. And again, we conclude that the
government’s review was sufficiently individualized,
particularly in view of the Classified Tabb Declaration.
In sum, the classified and unclassified materials in this
case confirm that the government’s restrictions on Twitter’s
speech survive strict scrutiny. We hold that the
government’s redactions of Twitter’s Transparency Report
do not violate the First Amendment.
TWITTER, INC. V. GARLAND 33
III
We turn next to Twitter’s claim that the procedures
associated with the government’s restriction on Twitter’s
speech failed to comport with Freedman v. Maryland, 380
U.S. 51 (1965). We hold that the specific procedural
requirements of Freedman do not apply here. And we
further conclude that the procedures that were followed—
which were robust and which resembled the Freedman
requirements in key respects—were sufficient to withstand
any broader procedural challenge that Twitter has raised. 4
A
In First Amendment law, a prior restraint is an order
“forbidding certain communications when issued in advance
of the time that such communications are to occur.”
Alexander v. United States, 509 U.S. 544, 550 (1993)
(emphasis and quotations omitted). In Freedman and its
progeny, the Supreme Court developed a set of procedural
safeguards for censorship regimes involving content-based
prior restraints: “(1) any restraint prior to judicial review can
be imposed only for a specified brief period during which
the status quo must be maintained; (2) expeditious judicial
4
In its decision granting summary judgment to the government, the
district court concluded that Twitter had not raised a challenge under
Freedman. The parties agree this determination was mistaken. The
record reflects that Twitter raised Freedman at various points in the
litigation. The government thus concedes that it “had adequate notice of
Twitter’s claims concerning [the Freedman] procedural safeguards.”
The Freedman issue has been fully briefed on appeal, and the district
court has already offered its tentative conclusions that Freedman may be
implicated here. As Twitter itself argues, judicial economy counsels in
favor of resolving the Freedman issue rather than remanding for further
consideration.
34 TWITTER, INC. V. GARLAND
review of that decision must be available; and (3) the censor
must bear the burden of going to court to suppress the speech
and must bear the burden of proof once in court.” Thomas,
534 U.S. at 321 (quoting FW/PBS, 493 U.S. at 227 (principal
opinion of O’Connor, J.)).
Some background on the Freedman line of cases helps
explicate these procedural requirements and demonstrates
why the law imposes them in some situations. In Freedman,
a Maryland “motion picture censorship statute” made it
“unlawful to sell, lease, lend, exhibit or use” any film unless
it was submitted to and approved by the state’s “Board of
Censors.” 380 U.S. at 52 & n.1. That board had the
authority to “license such films . . . which are moral and
proper,” and to refuse to permit films that, “in the judgment
of the Board,” are “obscene,” or that tend “to debase or
corrupt morals or incite to crimes.” Id. at 52 & n.2.
Recognizing that “any system of prior restraints of
expression comes to this Court bearing a heavy presumption
against its constitutional validity,” the Supreme Court held
that the Maryland scheme was an unconstitutional prior
restraint. Id. at 57–60 (quoting Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70 (1963)). In particular, the Court
concluded that “a noncriminal process which requires the
prior submission of a film to a censor avoids constitutional
infirmity only if it takes place under procedural safeguards
designed to obviate the dangers of a censorship system.” Id.
at 58. Although the Supreme Court would later crystallize
the Freedman procedures into the three-part formulation that
we set forth above, see Thomas, 534 U.S. at 321, Freedman
outlined those same basic procedural features and explained
why they were constitutionally mandated in the censorship
context.
TWITTER, INC. V. GARLAND 35
Freedman first explained that because of the
“transcendent value of speech,” as a matter of “due process,”
the “burden of proving that the film is unprotected
expression must rest on the censor.” 380 U.S. at 58 (quoting
Speiser v. Randall, 357 U.S. 513, 526 (1958)). Second, it
was constitutionally necessary to have ready access to
judicial review “because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to
freedom of expression,” and “only a procedure requiring a
judicial determination suffices to impose a valid final
restraint.” Id. Because “the censor’s business is to censor,”
the Court concluded that a censor “may well be less
responsive than a court . . . to the constitutionally protected
interests in free expression.” Id. at 57–58. And “[i]f it is
made unduly onerous, by reason of delay or otherwise, to
seek judicial review, the censor’s determination may in
practice be final.” Id. at 58. Thus, “[a]ny restraint imposed
in advance of a final judicial determination on the merits
must similarly be limited to preservation of the status quo for
the shortest fixed period compatible with sound judicial
resolution.” Id. at 59. Finally, Freedman explained, “the
procedure must also assure a prompt final judicial decision”
because of the potential that the temporary and “possibly
erroneous” denial of a license could have a “deterrent effect”
against speech. Id. That said, the Court made clear that it
did “not mean to lay down rigid time limits or procedures,
but to suggest considerations” in devising a legislative
scheme that would “avoid the potentially chilling effect of
the Maryland statute on protected expression.” Id. at 61.
Although it eschewed imposing rigid formalities on
these types of schemes, Freedman concluded that the basic
procedural safeguards it set forth were constitutionally
necessary because without them, “it may prove too
36 TWITTER, INC. V. GARLAND
burdensome to seek review of the censor’s determination.”
Id. at 59. The Court pointed specifically to the nature of the
film industry and to the incentives that film exhibitors and
distributors would have (or would lack) in this context. As
to the exhibitor, its “stake in any one picture may be
insufficient to warrant a protracted and onerous course of
litigation.” Id. And the film’s distributor might also forgo a
costly challenge if the distributor could show the film freely
in most other places. Id.
Beyond Freedman, the Supreme Court has imposed
these procedural protections in other cases as well, but it
“has generally focused on two types of government schemes
requiring safeguards: censorship schemes and licensing
schemes.” NSL, 33 F.4th at 1076–77. Thus, the Court has
applied Freedman to customs officials’ seizing “obscene or
immoral” articles, United States v. Thirty-Seven (37)
Photographs, 402 U.S. 363, 365 & n.1, 366–68, 373–75
(1971), the postmaster’s halting mail that contains
“allegedly obscene materials,” Blount v. Rizzi, 400 U.S. 410,
411–14, 417–19 (1971), a board’s requiring permission
before showing an allegedly obscene play at a municipal
theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 547–48, 559–62 (1975), and a court’s ex parte
restraining order that prevented a planned rally of offensive
“political” speech, Carroll v. President & Comm’rs of
Princess Anne, 393 U.S. 175, 176–77, 181–82 (1968); see
also, e.g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 140–
42 (1968) (per curiam) (invalidating a city’s “Motion Picture
Censorship Ordinance”); Bantam Books, 372 U.S. at 59–62,
71 (invalidating, pre-Freedman, a scheme by which a state
“Commission to Encourage Morality in Youth” would
declare books or magazines objectionable for distribution to
young people). In these cases, the Court recognized that “a
TWITTER, INC. V. GARLAND 37
scheme conditioning expression on a licensing body’s prior
approval of content ‘presents peculiar dangers to
constitutionally protected speech.’” Thomas, 534 U.S. at
321 (quoting Freedman, 380 U.S. at 57).
At the same time, the Supreme Court has emphasized
that in some licensing contexts, the required safeguards “are
less extensive than those required in Freedman because they
do ‘not present the grave dangers of a censorship system.’”
NSL, 33 F.4th at 1077 (quoting City of Littleton v. Z.J. Gifts
D-4, L.L.C., 541 U.S. 774, 783 (2004)). Most relevant here
is City of Littleton, in which the Court rejected a facial
challenge to a municipal licensing scheme for adult
businesses. 541 U.S. at 776. The city ordinance at issue
there established certain circumstances that required the city
to deny a license to operate an adult business, such as if the
applicant were underage or had not timely paid taxes. Id. at
783.
The Court concluded that specially expedited time
frames for judicial review were not required in that context.
Id. at 782–84. As the Court explained, where “the regulation
simply conditions the operation of an adult business on
compliance with neutral and nondiscretionary criteria, and
does not seek to censor content, an adult business is not
entitled to an unusually speedy judicial decision of the
Freedman type.” Id. at 784 (citations omitted). In such
cases, the state’s “ordinary judicial review procedures
suffice as long as the courts remain sensitive to the need to
prevent First Amendment harms.” Id. at 781. And “whether
the courts do so is a matter normally fit for case-by-case
determination rather than a facial challenge.” Id. at 782; see
also FW/PBS, 493 U.S. at 228 (principal opinion of
O’Connor, J.) (“Because the licensing scheme at issue in
these cases does not present the grave ‘dangers of a
38 TWITTER, INC. V. GARLAND
censorship system,’ we conclude that the full procedural
protections set forth in Freedman are not required.” (quoting
Freedman, 380 U.S. at 58)).
In addition to not insisting on compliance with inflexible
procedures even within the contexts in which Freedman
might otherwise apply, the Supreme Court has not held that
compliance with Freedman’s safeguards is required in every
instance in which expression is restrained in advance
because of its content. In particular, the Court “has not held
that . . . [certain] government confidentiality restrictions
must have the sorts of procedural safeguards required for
censorship and licensing schemes.” NSL, 33 F.4th at 1078.
Two precedents are most relevant in this regard. In
Seattle Times Company v. Rhinehart, 467 U.S. 20, 27–28
(1984), a newspaper company challenged a protective order
preventing it from disseminating information it acquired
through pretrial discovery. Although the order restricted the
newspaper’s ability to share information of significant
public interest, the Court concluded that the order was “not
the kind of classic prior restraint that requires exacting First
Amendment scrutiny.” Id. at 33. The newspaper company
had received the information it sought to publish only as “a
matter of legislative grace” through the mechanisms of civil
discovery. Id. at 32. Information obtained through
discovery requests in litigation does not come from “a
traditionally public source of information.” Id. at 33.
Limitations on the disclosure of such information thus “do[]
not raise the same specter of government censorship that
such control might suggest in other situations.” Id. at 32.
The Court ultimately affirmed that the protective order
satisfied the First Amendment without discussing
Freedman. Id. at 37.
TWITTER, INC. V. GARLAND 39
Nor did the Court mention Freedman in Butterworth v.
Smith, 494 U.S. 624 (1990). In Butterworth, the Court
considered a state law preventing grand jury witnesses from
disclosing the testimony that they gave before the grand jury.
Id. at 626–27. The Court held the restriction
unconstitutional “insofar as [it] prohibits a grand jury
witness from disclosing his own testimony after the term of
the grand jury has ended.” Id. at 626. In support of its
conclusion, the Court emphasized that the statute’s effect
was “dramatic.” Id. at 635. Before the witness was called
to testify, he “possessed [] information on matters of
admitted public concern about which he was free to speak at
will.” Id. But after testifying, the statute restrained his
speech. Id. The state’s interest in preserving the secrecy of
grand jury proceedings did not overcome the witness’s “First
Amendment right to make a truthful statement of
information he acquired on his own.” Id. at 636 (emphasis
added).
Critically, however, Butterworth left intact “that part of
the Florida statute which prohibit[ed] the witness from
disclosing the testimony of another witness.” Id. at 633; see
also id. at 632 (distinguishing Seattle Times because “[h]ere,
by contrast, we deal only with respondent’s right to divulge
information of which he was in possession before he testified
before the grand jury, and not information which he may
have obtained as a result of his participation in the
proceedings of the grand jury”); id. at 636 (Scalia, J.,
concurring) (expressing “considerable doubt” over the
state’s ability to restrain a witness from disclosing
information that he already knew before he entered the grand
jury room, but noting that it would present “[q]uite a
different question” to restrict the witness from disclosing
40 TWITTER, INC. V. GARLAND
what he learned from others, “which is in a way information
of the State’s own creation”); NSL, 33 F.4th at 1078.
As it stands, therefore, Freedman applies to some speech
restrictions, but the Supreme Court has not held that
Freedman’s specific procedures apply to every limitation
that restricts speech in advance of its disclosure.
B
With the Freedman doctrine set forth, we now turn to the
question of whether the government was required to comply
with Freedman’s exact procedures in restricting Twitter’s
publication of its Transparency Report. We also consider
whether, as a general matter, Freedman applies when the
government prohibits the publication of information that
exceeds the limited aggregate disclosures that the USA
FREEDOM Act allows.
These are largely issues of first impression, although
they bear similarities to the First Amendment challenge to
the individual NSL nondisclosure requirement that we
considered in NSL. That case likewise involved the post-
USA FREEDOM Act version of the statute. NSL, 33 F.4th
at 1068–69. As we explained above, the relevant provision
at issue in NSL, 18 U.S.C. § 2709(c), generally prohibits the
recipient of a national security letter from disclosing the fact
of its receipt. NSL, 33 F.4th at 1063. Among the issues
posed in NSL was whether Freedman applied to § 2709(c)’s
speech restriction.
We concluded in NSL that we did not need to answer that
question because even if the procedural safeguards of
Freedman were required, the statute “in fact provides all of
them.” Id. at 1079. But although it was unnecessary to reach
the question, we provided several reasons in NSL why we
TWITTER, INC. V. GARLAND 41
were skeptical that Freedman applied to the individual NSL
nondisclosure obligations at issue. Id. at 1076–78. We
noted that the NSL nondisclosure requirement “does not
resemble the[] government censorship and licensing
schemes” to which Freedman traditionally applies because
the NSL law “neither requires a speaker to submit proposed
speech for review and approval, nor does it require a speaker
to obtain a license before engaging in business.” Id. at 1077.
“Rather,” we continued, the statute “prohibits the disclosure
of a single, specific piece of information that was generated
by the government: the fact that the government has
requested information to assist in an investigation addressing
sensitive national security concerns.” Id. Citing Seattle
Times and Butterworth, we opined that a restriction on the
dissemination of this type of information was “more similar
to government confidentiality requirements that have been
upheld by courts”—requirements to which Freedman has
not been extended. Id. at 1078. That is, Seattle Times and
Butterworth demonstrated that the Supreme Court “ha[d] not
held that these sorts of confidentiality restrictions must have
the sorts of procedural safeguards required for censorship
and licensing schemes.” Id. As we have noted, however,
these comments in NSL were dicta and thus do not bind us
here.
Unlike NSL, this case does require us to pass upon
whether Freedman applies to the government’s restriction
on Twitter’s dissemination of classified information.
Having undertaken our own independent review of the issue,
we conclude that Freedman’s specific procedures do not
apply in this case. Freedman established constitutionally
mandated “procedural safeguards designed to obviate the
dangers of a censorship system.” 380 U.S. at 58. These
procedures were founded on the recognition that “a scheme
42 TWITTER, INC. V. GARLAND
conditioning expression on a licensing body’s prior approval
of content ‘presents peculiar dangers to constitutionally
protected speech.’” Thomas, 534 U.S. at 321 (quoting
Freedman, 380 U.S. at 57).
But as the Supreme Court explained in City of Littleton,
the specific procedural requirements of Freedman do not
come into play in the case of statutory schemes that “do not
present the grave dangers of a censorship system.” 541 U.S.
at 783 (quoting FW/PBS, 493 U.S. at 228 (principal opinion
of O’Connor, J.)); see also FW/PBS, 493 U.S. at 228(principal opinion of O’Connor, J.) (“Because the licensing
scheme at issue in these cases does not present the grave
‘dangers of a censorship system,’ we conclude that the full
procedural protections set forth in Freedman are not
required.” (quoting Freedman, 380 U.S. at 58)). Although
the licensing scheme at issue in City of Littleton was a
different type of regime than what we have here, City of
Littleton confirms that Freedman has not been extended to
every regime that may be characterized as an advance
restriction on speech.
In this case, a restriction on the disclosure of classified
information is not akin to the censorship schemes to which
Freedman has been applied. As in the context of
information obtained in civil discovery subject to a
protective order, see Seattle Times, 467 U.S. at 32–33, or
learned in grand jury proceedings, see Butterworth, 494 U.S.
at 632–33, 635–36, the recipient of the classified information
at issue here is restrained only in speaking about information
it received from the government. And that restriction is
taking place in an area in which courts have regarded
government confidentiality restrictions not as censorship,
but as legitimate means of protecting certain government-
provided confidential information. See, e.g., Egan, 484 U.S.
TWITTER, INC. V. GARLAND 43
at 527; Snepp, 444 U.S. at 509 n.3. As we recognized in
NSL, courts have upheld certain government confidentiality
requirements—regardless of the type of information being
quelled—without discussing or considering Freedman’s
application. 33 F.4th at 1078. Freedman’s procedures,
which were designed to curb traditional censorship regimes,
are not required in the context of government restrictions on
the disclosure of information transmitted confidentially as
part of a legitimate government process, because such
restrictions do not pose the same dangers to speech rights as
do traditional censorship regimes. See NSL, 33 F.4th at 1078
(citing Seattle Times and Butterworth).
This does not mean, of course, that Twitter is entitled to
no procedural protections. As we explain below, the process
afforded here was both substantial and sufficient. But the
specific procedural framework of Freedman is not
constitutionally required. What we have here is not “a
classic prior restraint,” Seattle Times, 467 U.S. at 33, and for
the reasons we have explained, Freedman’s particular
procedural framework does not govern.
Twitter’s arguments to the contrary are unavailing.
Twitter is correct that, as noted above, the Supreme Court
has required compliance with Freedman in some cases
beyond the quintessential film censorship scheme. See, e.g.,
Carroll, 393 U.S. at 176–77, 181–82 (restraining order
preventing political rallies); Nat’l Socialist Party of Am. v.
Vill. of Skokie, 432 U.S. 43, 43–44 (1977) (per curiam)
(injunction preventing political party from marching and
distributing certain materials); Vance v. Universal
Amusement Co., 445 U.S. 308, 309 (1980) (per curiam)
(injunction indefinitely preventing display of motion
pictures under public nuisance statute). But although these
cases may not have involved censorship schemes exactly
44 TWITTER, INC. V. GARLAND
like that in Freedman itself, it is obvious that they presented
closely analogous speech restrictions.
We are likewise not persuaded by the Second Circuit’s
decision in John Doe, Inc. v. Mukasey, 549 F.3d 861, 876–
78 (2d Cir. 2008), which held that the pre-USA FREEDOM
Act nondisclosure requirements for individual NSLs must
comply with Freedman. Just as we have, the Second Circuit
in Doe recognized that the individual NSL nondisclosure
requirement is “not a typical prior restraint” because it “is
not a restraint imposed on those who customarily wish to
exercise rights of free expression, such as speakers in public
fora, distributors of literature, or exhibitors of movies.” Id.at 876–77. But the court then rejected the analogy to the
grand jury context on the theory that “[t]he justification for
grand jury secrecy inheres in the nature of the proceeding,”
whereas “secrecy might or might not be warranted” for
national security letters. Id. The problem with this
reasoning is that it fails to recognize that Freedman has not
been extended to long-accepted confidentiality restrictions
concerning government-provided information because of the
differences between these types of confidentiality
requirements and traditional prior restraints.
C
Even though Freedman’s specific procedural framework
does not apply here, Twitter received considerable process—
including some of the process that Freedman envisioned.
This is hardly a case in which a would-be speaker was
entirely frustrated by an administrative censor. We conclude
that the process Twitter received was sufficiently “sensitive
to the need to prevent First Amendment harms.” City of
Littleton, 541 U.S. at 781.
TWITTER, INC. V. GARLAND 45
When Twitter circulated its proposed publication to the
government, the FBI reviewed it and met with Twitter to
discuss the issues before ultimately determining that certain
information in Twitter’s publication could not be publicly
released. We expect that going forward, the government will
demonstrate comparable diligence when presented with
these kinds of requests to ensure that free speech rights are
adequately protected in the national security context.
Twitter then filed this lawsuit just four weeks after the
government informed Twitter that it could not publish the
Transparency Report in full.
Although Twitter shouldered the burden of filing the
lawsuit, it had no apparent difficulty bearing that burden, and
it was able to ensure that any speech restraint prior to judicial
review was relatively brief. See Thomas, 534 U.S. at 321.
That stands in contrast to the film context, in which
Freedman concluded that it “may prove too burdensome” for
certain speakers “to seek review of the censor’s
determination” because movie distributors and exhibitors
may have too little stake in displaying a single film in a
particular location covered by a censorship scheme. 380
U.S. at 59. There was no similar incentive problem here.
We have already held that “the Freedman burden-of-
instituting proceedings safeguard does not apply” in the
context of certain zoning and licensing schemes. Baby Tam
& Co., Inc. v. City of Las Vegas, 247 F.3d 1003, 1008 (9th
Cir. 2001); see also Dream Palace v. County of Maricopa,
384 F.3d 990, 1001 n.6, 1009–10 (9th Cir. 2004). We
similarly conclude here that Twitter has not demonstrated
why obligating the government to institute these proceedings
was constitutionally mandated, or how it would have
materially affected the resolution of this dispute.
46 TWITTER, INC. V. GARLAND
Once Twitter’s lawsuit was filed, the district court gave
the case careful and diligent consideration. As Freedman
requires, the government bore the burden of proof in
demonstrating that the speech restriction was permissible.
See Thomas, 534 U.S. at 321; Freedman, 380 U.S. at 58. Our
review, and that of the district court, was conducted using
strict scrutiny, which is the “most demanding test known to
constitutional law.” City of Boerne v. Flores, 521 U.S. 507,
534 (1997). It is true, of course, that the proceedings in the
district court and in this Court took considerable time to
resolve. But Freedman itself noted that the timetable for
judicial review may depend on the context of the restriction.
See 380 U.S. at 60–61. And, as we held in NSL, “[n]either
Freedman nor any other Supreme Court decision requires
that judicial review be completed in a specified time frame.”
33 F.4th at 1079.
In this case, we conclude that any delay was warranted
and that “ordinary court procedural rules and practices” are
generally sufficient “to avoid delay-related First
Amendment harm.” City of Littleton, 541 U.S. at 782, 784;
see also Dream Palace, 384 F.3d at 1003–04. The district
court proceedings in this case required multiple rounds of
classified and unclassified declarations. We cannot say that
this process was unnecessary. Indeed, it was indispensable
to our ultimate review. The specific protocols that govern
judicial review of cases involving classified information, see
Reagan, Keeping Government Secrets, supra, at 9–20, 22–
23—which here included judicial review and discussion of
classified information in secure facilities—similarly led to
more protracted proceedings. But this deliberative process
was necessary in view of the national security sensitivity of
the information at issue. We are also hopeful that having
now resolved some of the complex legal issues underlying
TWITTER, INC. V. GARLAND 47
this dispute, future disputes of this nature may move more
quickly, in a manner consistent with the First Amendment
and accounting for the unique needs that are attendant to the
consideration of classified information. See City of Littleton,
541 U.S. at 782 (“We presume that courts are aware of the
constitutional need to avoid ‘undue delay result[ing] in the
unconstitutional suppression of protected speech.’” (quoting
FW/PBS, 493 U.S. at 228)); id. (describing how “ordinary
court procedural rules and practices, in Colorado as
elsewhere, provide reviewing courts with judicial tools
sufficient to avoid delay-related First Amendment harm”).
Future litigants “remain free to raise special problems of
undue delay in individual cases.” Id. at 784.
In sum, although the specific Freedman procedures do
not apply in these circumstances, Twitter received some
Freedman-like protections, and it is entitled to due process
when it wishes to disclose information like that at issue
here—due process that Twitter received in this case.
IV
Twitter lastly argues that the government violated due
process by refusing to allow Lee Rubin, Twitter’s lead
outside counsel, access to the classified Tabb declaration and
other classified materials that the government submitted in
this case. This argument lacks merit.
There is no general constitutional rule requiring the
government to provide classified materials to an adversary
in litigation. Nor is there a general constitutional rule
allowing a party access to classified information by virtue of
its decision to file a lawsuit that implicates that kind of
information. That is true even if the party seeking the
information has appropriate security clearances. As we have
held, the government “might have a legitimate interest in
48 TWITTER, INC. V. GARLAND
shielding the materials even from someone with the
appropriate security clearance.” Al Haramain Islamic
Found., Inc. v. Dep’t of the Treasury, 686 F.3d 965, 983 (9th
Cir. 2012) (“Al Haramain II”).
From a procedural standpoint, our case law establishes
that although “the Constitution does require that the
government take reasonable measures to ensure basic
fairness to the private party,” it “certainly does not require
that the government take actions that would endanger
national security.” Id. at 980. “[N]or does it require the
government to undertake every possible effort to mitigate the
risk of erroneous deprivation and the potential harm to the
private party.” Id.; see also Kashem, 941 F.3d at 386. Our
assessment of the required procedures—including who has
access to what information—instead reflects “a case-by-case
approach” that accounts for the fact that “the proper
measures in any given case will depend on a number of
factors.” Al Haramain, 686 F.3d at 984. As we have held,
“the government may withhold classified information that
truly implicates national security as long as it undertakes
reasonable measures to mitigate the potential unfairness” to
the plaintiff. Kashem, 941 F.3d at 380.
In this case, the government submitted a declaration
from Carl Ghattas, then-EAD of the FBI’s National Security
Branch, which explained that under Executive Order 13,526,
which governs the disclosure of classified information, the
United States had determined that Rubin did not have the
requisite “need to know” the classified information. The
President’s Executive Order 13,526 defines “need to know”
as “a determination within the executive branch in
accordance with directives issued pursuant to this order that
a prospective recipient requires access to specific classified
information in order to perform or assist in a lawful and
TWITTER, INC. V. GARLAND 49
authorized governmental function.” Exec. Order No.
13,526, § 6.1(dd), 75 Fed. Reg. at 729. Mr. Ghattas
concluded that “it does not serve a governmental
function . . . to allow plaintiff’s counsel access to the
classified FBI information at issue in this case to assist in
representing the interests of a private plaintiff who has filed
this civil suit against the government.” Mr. Ghattas
contrasted Twitter’s outside counsel with federal judges,
who are provided with classified information “necessary for
the Court to perform its judicial function.”
In response, Twitter maintains that Rubin does have a
need to know the classified information in this case, so as to
allow outside counsel fully to represent Twitter’s interests in
this litigation. But under our precedents, this argument falls
short. See Al Haramain II, 686 F.3d at 979 (directing
application of the balancing test from Mathews v. Eldridge,
424 U.S. 319 (1976)). We have already determined that “the
evidence is classified and truly implicates national security.”
Kashem, 941 F.3d at 385. And we conclude that the process
followed here mitigates the risk of an erroneous deprivation
of Twitter’s First Amendment rights, see Mathews, 424 U.S.
at 335, in a manner consistent with the government’s
compelling interest in ensuring the confidentiality of
classified information. See Kashem, 941 F.3d at 377–78,
382; Al Haramain II, 686 F.3d at 979–80.
Twitter was provided with unclassified versions of the
various declarations, which we have relied upon throughout
this opinion. See Kashem, 941 F.3d at 385 (explaining that
reasonable mitigation measures “may include disclosing the
classified evidence to cleared counsel subject to a protective
order or providing the complainant an unclassified summary
of the classified evidence” (emphasis added)). The
unclassified declarations provided Twitter with sufficient
50 TWITTER, INC. V. GARLAND
information by which to advance Twitter’s interests before
this Court. The record amply demonstrates that Twitter’s
capable counsel has vigorously advocated on behalf of its
client. And although we appreciate Twitter’s concern that it
cannot respond to what it does not know, Twitter’s interest
in the classified information does not rise to the level of
constitutional imperative. As we have made clear, “there is
no general rule requiring both an unclassified summary and
disclosure to cleared counsel.” Id. at 386 (citing Al
Haramain II, 683 F.3d at 980); see also Al Haramain II, 683
F.3d at 983 (“We recognize that disclosure may not always
be possible.”).
The risk of erroneous deprivation is further mitigated by
the extensive litigation process in this case, which involved
multiple rounds of proceedings in the district court, multiple
rounds of government submissions, and extensive in camera
review of classified declarations in both the district court and
this Court. In deciding Twitter’s challenge, we have
“thoroughly and critically reviewed the government’s public
and classified declarations,” Mohamed, 614 F.3d at 1086,
under the demanding strict scrutiny framework. Our process
here was not unusual. In the context of other similar judicial
processes, we have conducted ex parte review of classified
materials without finding a due process concern, even when
those materials were critical to our resolution of the case.
See, e.g., Kashem, 941 F.3d at 385; Mohamed, 614 F.3d at
1086. 5
5
Because we conclude that due process does not require the government
to provide Twitter’s counsel with classified information, we do not reach
the government’s argument that this information would be protected
from disclosure under the state secrets privilege.
TWITTER, INC. V. GARLAND 51
Twitter protests that this case is different because
“[u]nlike some of the litigants that have sought access to
classified evidence over the years, Twitter is not a designated
terrorist organization or foreign national whose access (even
through cleared counsel) might legitimately raise national
security concerns.” This argument fails. Twitter confuses
whether the government could have allowed Twitter access
to classified information with whether due process mandates
that result. For the reasons we have explained, it does not.
The process afforded to Twitter was constitutionally
sufficient, even without its having received classified
materials. Under these circumstances, the government was
not required to draw distinctions among different types of
litigants, as Twitter suggests, which could require potentially
fraught predictions as to whether disclosure of classified
materials to one group as opposed to another posed greater
risks.
Nor is this selective differentiation among litigants a task
that is proper for the judiciary to undertake. See United
States v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) (“Congress
has a legitimate interest in authorizing the Attorney General
to invoke procedures designed to ensure that sensitive
security information is not unnecessarily disseminated
to anyone not involved in the surveillance operation in
question, whether or not she happens for unrelated reasons
to enjoy security clearance. We reject the notion that a
defendant’s due process right to disclosure of FISA materials
turns on the qualifications of his counsel.”); see also Al
Haramain II, 683 F.3d at 983. In a case such as this,
requiring courts to evaluate the perceived trustworthiness of
individual litigants in their receipt of classified information
would invite a weighing of interests that is beyond our role.
52 TWITTER, INC. V. GARLAND
That is not an inquiry we have undertaken before, and we do
not do so now.
* * *
The government may not fend off every First
Amendment challenge by invoking national security. But
we must apply the First Amendment with due regard for the
government’s compelling interest in securing the safety of
our country and its people. We hold here that, both as a
matter of substance and procedure, the government’s
restriction on Twitter’s speech did not violate the First
Amendment. The judgment of the district court is
AFFIRMED.
VANDYKE, Circuit Judge, concurring in the judgment:
I agree with the majority’s conclusion in this case, and
most aspects of its analysis, with our only significant
disagreement being whether we need to rely on classified
materials to resolve this case. I conclude that the
unclassified materials are sufficient to meet the
government’s burden. Rather than attempt to parse how that
difference might change the analysis, I simply provide my
own analysis below.
I. DISCUSSION
“[O]ne of the most difficult tasks in a free society like
our own is the correlation between adequate intelligence to
guarantee our nation’s security on the one hand, and the
preservation of basic human rights on the other.” S. Rep.
No. 95-604, pt. 1, at 4 (1977) (quoting former United States
President Jimmy Carter). It’s a longstanding legal axiom
TWITTER, INC. V. GARLAND 53
that a government can safeguard liberty only if it has some
latitude to narrowly restrict speech that endangers national
security. See, e.g., 1 William Blackstone, Commentaries
*126; 3 Joseph Story, Commentaries on the Constitution of
the United States §§ 1874, 1878, at 731–33, 735–37 (1833).
But it is as well-recognized that the First Amendment’s
protection to speak freely about matters of public concern is
“an opportunity essential to the security of the Republic,”
and “a fundamental principle of our constitutional
system.” New York Times v. Sullivan, 376 U.S. 254, 269
(1964) (quotation marks and citations omitted).
This case requires us to address the intersection of those
two weighty concerns: free speech and national security.
More specifically, Twitter has brought an as-applied
constitutional challenge asking whether the Government can
constitutionally prevent it from disclosing in its Report
classified information it obtained only through its
involvement in the Government’s national security
investigations. The First Amendment provides that
“Congress shall make no law ... abridging the freedom of
speech, or of the press.” U.S. Const. amend. I. But “the
Supreme Court has concluded that some restrictions on
speech are constitutional, provided they survive the
appropriate level of scrutiny.” In re National Security
Letter, 33 F.4th 1058, 1070 (9th Cir. 2022) (“NSL”).
Our court analyzes nondisclosure requirements
pertaining to national security in three steps. See id. at 1071(evaluating 18 U.S.C. § 2709(c)’s nondisclosure
requirement). First, we “determine whether the
nondisclosure requirement is content based or content
neutral.” Id. Second, “[i]f the nondisclosure requirement is
content based, we then consider whether it survives strict
scrutiny.” Id. Third, we “determine whether the
54 TWITTER, INC. V. GARLAND
nondisclosure requirement constitutes the type of restraint
for which the procedural safeguards are required and, if so,
whether it provides those safeguards.” Id.A. The Government’s Restrictions Result from the
Statutory Framework.
At the outset, it is important to first define the precise
speech restrictions at issue here. On appeal, Twitter argues
that “the origin of the restraint on [its] aggregate reporting is
the FBI’s discretionary ‘classification’ of
[its] … Report … and its continued assertion of that
classification under Executive Order 13526 and 50 U.S.C.
§ 1874.” In contrast, the Government argues that “[t]he
obligation of the recipients of national security process to
protect the secrecy of classified information relating to that
process stems from their statutory nondisclosure
obligations” (emphasis added).
The Government is right. It is the statutory
nondisclosure requirements pertaining to electronic
communication service providers’ (ECSPs’) receipt of
national security process that prevent Twitter from
disclosing the information it seeks to publish. The text of
the statutory nondisclosure provisions at issue requires
ECSPs to “protect [the] secrecy” of the investigation. 50
U.S.C. §§ 1805(c)(2)(B) (electronic surveillance),
1824(c)(2)(B) (physical searches), 1842(d)(2)(B)(i) (pen
registers or trap and trace devices), 1881a(i)(1)(A) (persons
abroad); see also 18 U.S.C. § 1862(d)(2) (mandating that
appropriate recipients of a request for records not “disclose
to any person … that the [FBI] has sought or obtained
records pursuant to an order under this section”); 18 U.S.C.
§ 2709(c)(1)(A) (containing the NSL nondisclosure
requirement mandating that “no [ECSP] … shall disclose to
TWITTER, INC. V. GARLAND 55
any person that the [FBI] has sought or obtained access to
information or records under this section”). Disclosing any
information about a particular national security
investigation, including aggregated information that
incorporates the occurrence of that investigation, directly
undermines its “secrecy” by, at the very least, revealing its
existence.
Moreover, the only provision that permits the disclosure
of any information pertaining to the receipt of national
security process whatsoever, 50 U.S.C. § 1874, presents
itself as an exception to the nondisclosure requirements
accompanying the receipt of individual orders and
subpoenas. See § 1874(a) (“A person subject to a
nondisclosure requirement accompanying an order or
directive under this chapter or a national security letter may,
with respect to such order, directive, or national security
letter, publicly report the following information using one of
the [provided] structures ….” (emphases added)). Section
1874’s explicit incorporation of the nondisclosure
requirements pertaining to the receipt of individual orders
and subpoenas further enforces the statutory requirement to
generally prohibit the disclosure of any information
pertaining to the receipt of national security process, whether
individualized or in the aggregate, except for information
falling within the limited boundaries articulated in § 1874.
Reading the nondisclosure requirements together, as one
must, these provisions prohibit the disclosure of aggregate
information pertaining to the receipt of national security
process that falls outside of the limited bounds articulated in
§ 1874. See Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a
fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to
56 TWITTER, INC. V. GARLAND
their place in the overall statutory scheme.” (citation and
internal quotation marks omitted)). Because the information
Twitter seeks to disclose undisputedly falls outside of
§ 1874’s permissible boundaries, the statutory nondisclosure
requirements prohibit the disclosure of the information
Twitter seek to publish here. 1
B. Traditional Strict Scrutiny Applies.
Returning to our court’s tripartite analysis, I easily
conclude that the Government’s restrictions are content
based and warrant the application of strict scrutiny. “A
government’s restriction on speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed.” NSL, 33 F.4th at 1071
(citation and internal quotations omitted). “[A] regulation or
law that restricts speech based on its topic, idea, message, or
content is ‘content based’ on its face, and is accordingly
subject to strict scrutiny.” Id. at 1071–72. And when a non-
disclosure requirement, “[b]y its terms … prohibits speech
about one specific issue,” then “[s]uch a restriction targets
speech based on its communicative content.” Id. at 1072
(citation, internal alterations, and quotation marks omitted).
In this case, the Government’s restrictions are clearly
content based. The unclassified FBI declarations reveal that
the Government redacted certain information in Twitter’s
Report because the “message expressed,” if published,
would reasonably be expected to endanger national security.
1
Moreover, the logical extension of Twitter’s argument is that no
statutory nondisclosure requirement exists for the disclosure of
aggregate information pertaining to the receipt of national security
process, which effectively renders the exceptions for amounts of
aggregate reporting articulated in 50 U.S.C. § 1874(a) meaningless.
TWITTER, INC. V. GARLAND 57
See id.; see also Unclassified Tabb Decl. ¶ 5 (concluding that
the redactions are “properly classified, and that its
unauthorized disclosure reasonably could be expected to
result in serious damage to the national security”);
Unclassified Steinbach Decl. ¶ 5 (same). For example, in the
Unclassified Tabb Declaration, Tabb testified that disclosure
of the redacted information “would allow adversaries of the
United States … significant insight into the U.S.
Government’s counterterrorism and counterintelligence
efforts and capabilities, or, significantly, the lack thereof,
and into particular intelligence sources and methods.”
Unclassified Tabb Decl. ¶ 16. By the FBI’s own attestations,
therefore, it was precisely the content of the redacted
information that could endanger national security if
disclosed and accordingly justified the classification of that
information.
In addition to the executive branch’s own
characterization of its classification of the redacted
information in Twitter’s Report as content based, our court
has already determined that at least part of the statutory
nondisclosure framework at issue here is content based.
NSL, 33 F.4th at 1063. In NSL, the panel reasoned that 18
U.S.C. § 2709(c) “prohibits speech about one specific issue:
the recipient may not disclose to any person that the [FBI]
has sought or obtained access to information or records by
means of an NSL.” Id. at 1072 (citation and internal
quotation marks omitted). “Such a restriction targets speech
based on its communicative content, and restricts speech
based on its function or purpose.” Id. (citation and internal
quotation marks and alterations omitted). The panel
therefore concluded that 18 U.S.C. § 2709(c) was content
based on its face. Id.58 TWITTER, INC. V. GARLAND
NSL controls the analysis of the statutory nondisclosure
framework at issue here. As to the NSL nondisclosure
requirement, NSL explicitly dictates that 18 U.S.C.
§ 2709(c) is content based. Id. And as to the other
nondisclosure requirements pertaining to FISA orders,
NSL’s rationale leads to the same conclusion: just like 18
U.S.C. § 2709(c), the nondisclosure requirements for FISA
orders “prohibit[] speech about one specific issue: the
recipient may not disclose to any person that the
[government] has sought or obtained access to information
or records by means of” a FISA order. Id. (citation and
internal quotation marks omitted); see also 50 U.S.C.
§§ 1805(c)(2)(B), 1824(c)(2)(B), 1842(d)(2)(B)(i),
1862(d)(2), 1881a(i)(1)(A). The statutory nondisclosure
requirements at issue here are nearly identical to those the
panel considered in NSL, just at a higher level of generality.
But this is largely a distinction without a difference.
Because both the executive branch’s classification of the
redacted information in Twitter’s Report and the statutory
nondisclosure requirements at issue “target speech based on
its communicative content,” strict scrutiny applies. NSL, 33
F.4th at 1072 (citation and internal quotation marks omitted).
Neither party disputes that the Government’s restrictions
are content based. But they both nonetheless argue that a
standard other than strict scrutiny governs. The Government
argues that a standard of review more akin to intermediate
scrutiny applies, 2 whereas Twitter argues that some extra-
2
Specifically, the Government argues that a standard more akin to
intermediate scrutiny applies because the redacted information in
Twitter’s report concerns information obtained solely through Twitter’s
participation in confidential government activities. But in NSL, we
TWITTER, INC. V. GARLAND 59
strict form of strict scrutiny articulated in New York Times
Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam)
(“Pentagon Papers”), applies. But both parties ignore NSL’s
application of the traditional form of strict scrutiny to
materially similar nondisclosure requirements. NSL even
went so far as to determine that the same argument Twitter
raises—that Pentagon Papers instructs the application of a
more demanding form of strict scrutiny when evaluating
nondisclosure requirements—is “meritless”:
The recipients argue that the NSL law should
be held to a higher standard than strict
scrutiny. According to the recipients, a
content-based restriction imposed by a
system of prior restraint is permissible only if
(1) the harm to the governmental interest is
highly likely to occur; (2) the harm will be
irreparable; (3) no alternative exists for
preventing the harm; and (4) the restriction
will actually prevent the harm. This
argument is meritless. No Supreme Court or
Ninth Circuit opinion has articulated such a
test, nor do the three cases cited by the
recipients support it. The brief per curiam
opinion in [Pentagon Papers] did not specify
a test that should be applied to prior
restraints.
evaluated constitutional challenges to the nondisclosure requirement in
18 U.S.C. § 2709(c) under strict scrutiny, even though the plaintiffs in
that case also received the information at issue only from their
involvement in confidential government investigations. NSL, 33 F.4th
at 1071–72.
60 TWITTER, INC. V. GARLAND
NSL, 33 F.4th at 1076 n.21. Given that not even the
Pentagon Papers per curiam majority clearly established the
test advocated by Twitter, and given the material similarities
between the nondisclosure requirements at issue in NSL and
this case, the traditional form of strict scrutiny is the correct
standard for evaluating the Government’s restrictions.
1. The Government’s Restrictions Satisfy Strict
Scrutiny.
Having determined that the traditional form of strict
scrutiny applies, the next step is to determine whether the
Government’s restrictions satisfy this heightened standard.
“Under strict scrutiny, restrictions may be justified only if
the government proves that they are narrowly tailored to
serve compelling state interests.” Id. at 1070 (citation and
internal quotation marks omitted). Both requirements are
met here.
First, the restrictions serve a compelling state interest.
Both the regulatory and statutory nondisclosure frameworks
at issue undisputedly operate to prevent the disclosure of the
redacted information in Twitter’s Report for the purpose of
national security. See E.O. 13,526; NSL, 33 F.4th at 1073
(“Here, the recipients do not dispute that the nondisclosure
requirement directly serves the compelling state interest of
national security ….”). Our court has “readily conclude[d]
that national security is a compelling government interest.
Indeed, … everyone agrees that the Government’s interest in
combating terrorism is an urgent objective of the highest
order.” NSL, 33 F.4th at 1072 (citation, internal alterations,
and quotation marks omitted). “By the same token,” our
court also has determined that “keeping sensitive
information confidential in order to protect national security
is a compelling government interest.” Id. Given that the
TWITTER, INC. V. GARLAND 61
Government’s restrictions undisputedly rest on national
security interests, strict scrutiny’s first requirement is met
here.
The next step, therefore, is to “turn to the question [of]
whether the [Government’s restrictions are] narrowly
tailored.” Id. Even though a “restriction is not narrowly
tailored if less restrictive alternatives would be at least as
effective in achieving the legitimate purpose that the statute
was enacted to serve,” our court has observed in this very
context that strict scrutiny does not require the content-based
restriction to be “perfectly tailored.” Id. (citation and
internal quotation marks omitted). “Accordingly, a
reviewing court should decline to wade into the swamp of
calibrating the individual mechanisms of a restriction.” Id.
(citation, internal quotation marks, and alterations omitted).
My review is particularly informed in this context by the
Supreme Court’s frequent admonition that courts must
provide the “utmost deference” to Congress’s and the
executive branch’s factual judgments pertaining to national
security matters. See, e.g., Holder v. Humanitarian Law
Project, 561 U.S. 1, 34, 36 (2010) (determining that
Congress’s and the executive branch’s judgments on
national security matters are “entitled to significant
weight”); see also Dep’t of Navy v. Egan, 484 U.S. 518, 529–
30 (1988) (observing that “the courts have traditionally
shown the utmost deference to Presidential responsibilities”
regarding military and national affairs (internal quotations
mark omitted)); CIA v. Sims, 471 U.S. 159, 180 (1985) (“[I]t
is the responsibility of the [executive branch], not that of the
judiciary, to weigh the variety of complex and subtle factors
in determining whether disclosure of information may lead
to [national security harm].”). In justifying its restrictions
on speech in the national security context, the Government
62 TWITTER, INC. V. GARLAND
must provide “reasonable specificity” and “demonstrat[e] a
logical connection between the deleted information and the
reasons for classification.” Wilson v. CIA, 586 F.3d 171, 185
(2d Cir. 2009) (citation omitted). It need not, however,
provide “detail, specific facts, and specific evidence,” nor
“conclusively link all the pieces in the puzzle before [courts]
grant weight to its empirical conclusions.” Humanitarian
Law Project, 561 U.S. at 34–35 (citation internal quotation
marks omitted) (rejecting as “dangerous” the dissent’s
proposed requirement that the Government justify
constraints on speech with detailed factual explanations).
Given the “significant weight” a court must afford to the
Government’s national security factual findings, I would
hold that the Government’s unclassified declarations—
specifically, the Unclassified Tabb Declaration—
sufficiently demonstrate that the Government’s restrictions
on Twitter’s speech are narrowly tailored. See Dep’t of
Navy, 484 U.S. at 527. As discussed at length in that
declaration, the Government only redacted various pieces of
information that the USA FREEDOM Act did not exempt
from preexisting non-disclosure requirements, that “would
disclose specific numbers of orders received, including
characterizing the numbers in fractions or percentages, and
would break out particular types of process received.”
“Information at a more granular level than described in the
USA FREEDOM Act remains classified, because it would
provide a roadmap to adversaries revealing the existence of
or extent to which Government surveillance may be
occurring at Twitter or providers like Twitter.” Unclassified
Tabb Decl., ¶ 15; see also Sims, 471 U.S. at 176–77 (“A
foreign government can learn a great deal about the
[executive branch]’s activities by knowing the public
sources of information that interest the [executive branch].
TWITTER, INC. V. GARLAND 63
The inquiries pursued by the [executive branch] can often
tell our adversaries something that is of value to them.”).
Specifically, disclosure of the “granular aggregate data” that
Twitter seeks to publish “would assist adversaries in
avoiding detection by and in carrying out hostile actions
against the United States and its interests.” Unclassified
Tabb Decl. ¶¶ 8 n.2, 9.
Tabb further averred that the three restrictions to which
Twitter objects—(1) no disclosure beyond permitted ranges;
(2) beginning the lowest band with zero; and (3) reporting a
band for every type of process received—“were designed
specifically to minimize the harms that could reasonably be
expected to result from disclosure” of aggregate national
security process data. Id. at ¶ 17. As Tabb explained,
limiting the disclosure of information to the reporting bands
permitted by the Act allows the Government to conceal
trends in collection over time, which prevents foreign
adversaries from knowing which platforms are “safe” for use
and obscures the Government’s evolving intelligence
collection capabilities. See id. at ¶¶ 16–18. And starting the
lowest bands at zero instead of one prevents foreign
adversaries from ascertaining with any certainty whether the
Government was, or has recently started, collecting from a
given platform. Reporting at least the lowest band for all
types of national security process similarly conceals the
types of collection in which the Government is engaged on
a given platform, from which adversaries can deduce
information about the capabilities and limitations of the
Government’s collection abilities. Id. at ¶¶ 17–23. If
“[a]rmed with the kind of detailed information about
Twitter’s receipt of national security process contained in
Twitter’s draft … Report,” Tabb explained, “adversaries
reasonably can be expected to take operational security
64 TWITTER, INC. V. GARLAND
measures to conceal their activities, alter their methods of
communication to exploit secure channels of
communication, or otherwise counter, thwart or frustrate
efforts by the Government to collect foreign intelligence and
to detect, obtain information about, or prevent or protect
against threats to the national security.” Id. at ¶ 19.
By way of the detailed Unclassified Tabb Declaration, I
conclude that the Government has sufficiently “indicate[d]
the nature of the apprehended harm” and provided ample
bases demonstrating that “the link between disclosure and
risk of harm is substantial” in the unclassified record before
us. John Doe, Inc. v. Mukasey, 549 F.3d 861, 881 (2d Cir.
2008). While these bases may not “link all the pieces in the
puzzle,” they are commensurate with the level of detail
provided in affidavits that the Supreme Court has
determined, in the national security context to suffice in
supporting strict scrutiny. See Humanitarian Law Project,
561 U.S. at 29–33, 35. The Government’s restrictions also
fall squarely within its pursuit of national security: the
redactions are neither overinclusive, because they only target
precisely the type of aggregate information that both the
executive branch and Congress have deemed to pose a harm
to national security if disclosed, nor underinclusive, because
the statutory framework prevents any disclosure of national
security process outside of 50 U.S.C. § 1874’s aggregate
reporting bands. In other words, Twitter remains free to
disclose anything it wants other than precisely the national
security process information—including most (but not all)
aggregate national security process data—that Congress and
the executive branch have authoritatively concluded will
compromise important national security interests. Our court
must give strong deference to the Government’s factual
findings on national security. Doing so, it is evident that the
TWITTER, INC. V. GARLAND 65
restrictions on Twitter’s speech are narrowly tailored to the
compelling interest of protecting national security and
safeguarding classified information. See Dep’t of Navy, 484
U.S. at 527.
Twitter’s contrary arguments are unpersuasive. Relying
on The Florida Star v. B.J.F., 491 U.S. 524, 540 (1989), it
argues that the redactions do not satisfy strict scrutiny
because the Government failed to conduct an
“individualized inquiry” as to whether the redacted
information should be disclosed. But the record reveals that
the Government did, in fact, individually assess the harms
that reasonably could result from the disclosure of the
classified information. Indeed, in the Unclassified Tabb
Declaration, Tabb repeatedly referred to the specific
information redacted in Twitter’s Report when he concluded
that the disclosure of that specific information would provide
foreign adversaries “a clear picture not only of where the
Government’s surveillance efforts are directed … but also of
how its surveillance activities change over time, including
when the Government initiates or expands surveillance
capabilities or efforts involving providers or services that
adversaries previously considered ‘safe.’” Unclassified
Tabb Decl. ¶ 7. The record fatally undercuts this argument.
Twitter’s remaining arguments lack merit. Twitter
argues that the Government’s restrictions are not narrowly
tailored because they lack “durational limitation.” But as
already described, the statutory nondisclosure frameworks
provide for judicial review, which includes a review of any
durational limitations (or lack thereof). See 18 U.S.C.
§ 3511(b)(1)(C); 50 U.S.C. § 1881a(i)(4). The EO also
provides that classification determinations automatically
expire by default after 10 years. See EO §§ 1.5(a)–(d),
3.1(a), 3.5(a)–(c). Twitter also proffers various
66 TWITTER, INC. V. GARLAND
disagreements with the Government’s assessment that the
disclosure of the redacted information in the Report would
harm national security. But “[a]t bottom, [Twitter] simply
disagree[s] with the considered judgment of Congress and
the Executive” on their assessments regarding national
security. Humanitarian Law Project, 561 U.S. at 36. “That
judgment, however, is entitled to significant weight, and we
have persuasive evidence before us to sustain it.” Id.Twitter’s factual disagreements with the Government’s
national security assessments fail under the significant
deference we must provide to the Government’s factual
claims about national security risks.
In sum, the Unclassified Tabb Declaration provides a
sufficient rationale to determine that the Government’s
restrictions survive strict scrutiny.
2. Freedman Does Not Apply.
Having determined that the Government’s restrictions
survive strict scrutiny, the majority then rightly considers
Twitter’s argument that the Government’s restrictions
present “the sort of content-based restriction on speech
which must have the procedural safeguards identified by the
Supreme Court in Freedman.” NSL, 33 F.4th at 1076
(citation omitted).
In Freedman, the Supreme Court held that a statute
prohibiting the exhibition of films prior to a censorship
board’s approval constituted an invalid prior restraint. 380
U.S. at 60. In doing so, the Court established three
“procedural safeguards designed to obviate the dangers of a
censorship system.” Id. at 58. These safeguards include:
1. any restraint prior to judicial review can
be imposed only for a specified brief
TWITTER, INC. V. GARLAND 67
period during which the status quo must
be maintained;
2. expeditious judicial review of that
decision must be available; and
3. the censor must bear the burden of going
to court to suppress the speech and must
bear the burden of proof once in court.
NSL, 33 F.4th at 1071 (citing Freedman and other cases
applying Freedman).
Since Freedman, our court has recognized that “[t]he
Supreme Court has generally focused on two types of
government schemes requiring [Freedman’s procedural]
safeguards: censorship schemes and licensing schemes.” Id.
at 1076. In NSL our court also observed that the same
statutory nondisclosure requirement that comprises part of
the same nondisclosure framework at issue in this case “does
not resemble [the] government censorship and licensing
schemes” that triggered Freedman’s procedural safeguards.
Id. at 1077. Unlike the censorship scheme addressed in
Freedman, 18 U.S.C. § 2709(c)—the statutory provision
that prevents NSL recipients from disclosing the fact that
they received such a request—only “prohibits the disclosure
of a single, specific piece of information that was generated
by the government: the fact that the government has
requested information to assist in an investigation addressing
sensitive national security concerns.” Id. (emphasis added).
I’m not the first to observe that the concerns that
animated Freedman arose in a very different context: the
Second Circuit has similarly acknowledged that Ҥ 2709(c)
limits certain speech in advance but is not a typical example
of a regulation for which procedural safeguards are
68 TWITTER, INC. V. GARLAND
required.” Id. at 1076 (discussing John Doe, Inc., 549 F.3d
at 876) (internal quotation marks omitted). Building on that
thought, the NSL panel explained that, “unlike an exhibitor
of movies, the recipient of a nondisclosure requirement did
not intend to speak and was not subject to any administrative
restraint on speaking prior to the Government’s issuance of
an NSL.” Id. at 1077 (emphasis added) (citation, internal
alterations, and quotation marks omitted). “Rather than
resembling a censorship or licensing scheme, [18 U.S.C.
§ 2709(c)] is more similar to governmental confidentiality
requirements that have been upheld by the courts.” Id. at
1078 (citing Butterworth v. Smith, 494 U.S. 624, 634–36
(1990) (upholding in part a law requiring witnesses to
maintain the confidentiality of the grand jury process);
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984)
(upholding a restriction on disclosure of information
obtained through pretrial discovery). 3 But the NSL panel
stopped short of explicitly deciding “whether [18 U.S.C.
§ 2709(c)] must provide procedural safeguards,” because in
that case the panel determined that the government had
satisfied all the requisite procedural safeguards regardless of
whether Freedman applied. NSL, 33 F.4th at 1079.
NSL’s discussion regarding the inapplicability of
Freedman’s procedural safeguards is well-reasoned, and it
must govern here. Just like the nondisclosure provision at
3
In Butterworth, the Supreme Court declined to invalidate part of a state
statute that prohibited a witness from disclosing the testimony of another
witness—which the former witness only learned of through her
participation in confidential government legal processes. See 494 U.S.
at 632–36. Similarly, in Seattle Times Co., the Supreme Court upheld a
restriction on the disclosure of information obtained through pretrial
discovery—which, again, it only obtained through its participation in
confidential procedures. 467 U.S. at 37.
TWITTER, INC. V. GARLAND 69
issue in NSL, and similar to the confidentiality requirements
at issue in Butterworth and Seattle Times, the Government’s
restrictions only prevent “the disclosure of … specific
piece[s] of information … generated by the government: the
fact that the government has requested information to assist
in an investigation addressing sensitive national security
concerns.” Id. at 1077. Specifically, in this case, the
Government prevented the disclosure of information
pertaining to whether and how often the Government
compelled Twitter to produce various types of information
about its users. See Unclassified Tabb Decl. ¶ 7. The nature
of this Government-generated information is likely far more
sensitive than information disclosed during civil discovery
or grand jury proceedings. See Butterworth, 494 U.S. at634–36; Seattle Times Co., 467 U.S. at 37. That neither
Butterworth nor Seattle Times applied Freedman makes
sense, given that confidentiality requirements pertaining to
information gathered solely through participation in
confidential government procedures do not pose the risk of
“freewheeling censorship” that Freedman was designed to
prevent. See NSL, 33 F.4th at 1077 (citation omitted); see
also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559
(1975).
Moreover, “unlike [the] exhibitor of movies” considered
in Freedman, Twitter “‘did not intend to speak and was not
subject to any administrative restraint on speaking prior to
the Government’s issuance of [the national security
process].’” NSL, 33 F.4th at 1077 (internal alterations
omitted) (emphasis in original) (quoting John Doe, Inc., 549
F.3d at 880). This distinction holds true for the Supreme
Court cases Twitter relies on in support of its argument that
Freedman applies here. See, e.g., Vance v. Universal
Amusement Co., 445 U.S. 308, 317 (1980) (per curiam)
70 TWITTER, INC. V. GARLAND
(determining that “the absence of any special safeguards
governing the entry and review of orders restraining the
exhibition of named or unnamed motion
pictures … precludes the enforcement of these nuisance
statutes against motion picture exhibitors” (emphasis
added)); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432
U.S. 43, 43–44 (1977) (per curiam) (determining that
Freedman applied to an injunction prohibiting the
“marching, walking or parading in the uniform of the
National Socialist Party of America” (internal alterations
omitted)); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 61–
62, 71 (1963) (determining that the procedures of a state
commission, whereby it notified book distributors that
certain books were “objectionable for sale, distribution or
display to youths under 18 years of age” and reminded them
of the commission’s “duty to recommend to the Attorney
General prosecution of purveyors of obscenity,” were
“radically deficient”).
Twitter identifies no decision, and I am aware of none,
where a court held that the Government may not prohibit the
disclosure of classified information—let alone classified
information obtained solely through participation in
confidential government investigations—in the absence of
Freedman’s procedures. Instead, “[r]ather than resembling
a censorship or licensing scheme, [the Government
restrictions here are] more similar to governmental
confidentiality requirements that have been upheld by the
courts.” NSL, 33 F.4th at 1078. In accordance with NSL’s
well-reasoned rationale, I would conclude that Freedman’s
procedural requirements do not apply here.
Even if some process similar to that required by
Freedman was required, the process Twitter received is not
far removed from Freedman’s framework. Although
TWITTER, INC. V. GARLAND 71
Twitter initiated this lawsuit, nothing prevented it from
seeking prompt judicial review in federal court of the
Government’s decision prohibiting it from disclosing certain
information about national security process. Cf. id. at 1080
(“Freedman focused on minimizing the burden to the film
exhibitor to ‘seek judicial review’ of the state’s denial of a
license; it did not focus on which party bore the initial
burden. Here, the burden on a recipient is de minimis, as the
recipient may seek judicial review simply by notifying the
government that it so desires.” (internal citation omitted)).
As in NSL, the judicial process available to Twitter, which it
has apparently been able to utilize without too much
difficulty, satisfies any Freedman-type requirements that
might properly apply here. See id. at 1079–80 (concluding
that various provisions of 18 U.S.C. § 3511 provided for the
requisite “specified,” “brief,” and “expeditious” period of
judicial review contemplated by Freedman); see also 50
U.S.C. § 1881a(i)(4) (permitting review of FISA orders by
the Foreign Intelligence Surveillance Court).
At the end of the day, even if Freedman’s procedural
protections had applied to the Government’s restrictions and
the parties had operated under that framework, it would not
have materially changed the outcome of this case. The
parties would still have become embroiled in a lawsuit
regardless of who initiated it; they would still have raised the
same legal arguments on the merits; intervening statutory
developments would still have altered those arguments and
delayed a final resolution; and the parties would still have
proceeded to dispositive motions.
72 TWITTER, INC. V. GARLAND
3. Due Process Does Not Entitle Twitter’s Counsel
to Classified Declarations.
Lastly, I would conclude that procedural due process
does not require that Twitter’s counsel be provided access to
classified information. When assessing due process
challenges that implicate national security interests, a court
must “apply the balancing test set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976).” Al Haramain Islamic
Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 979
(9th Cir. 2012) (partial citation omitted); see also Hamdi v.
Rumsfeld, 542 U.S. 507, 528–29 (2004) (plurality)
(determining that the Mathews balancing test provides the
“ordinary mechanism that we use for balancing such serious
competing interests” as due process rights and national
security). “[T]o determine whether administrative
procedures provided to protect a liberty or property interest
are constitutionally sufficient,” Mathews instructs us to
consider three factors:
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest
through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government’s interest, including the
function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
TWITTER, INC. V. GARLAND 73
Kashem v. Barr, 941 F.3d 358, 377–78 (9th Cir. 2019)
(internal quotation marks omitted). And when due process
claims implicate classified information:
Courts should adopt a case-by-case approach
[in] determining what disclosure of classified
information is required, considering, at a
minimum, the nature and extent of the
classified information, the nature and extent
of the threat to national security, and the
possible avenues available to allow the
designated person to respond more
effectively to the charges.
Id. at 382 (citation and internal quotation marks omitted).
Applying the Mathews factors, Twitter asserts a general
interest in adversarial proceedings “in order to effectively
vindicate its First Amendment rights.” But Twitter’s private
expressive interest here is relatively weak because, as I note
above, Twitter seeks to disclose classified information the
Government shared only as a necessary part of conducting
national security investigations. When balanced against the
Government’s compelling interest in national security, the
relatively low risk of erroneous suppression under the
carefully tailored nondisclosure regime, and the heavy
burden of providing access to classified information to
Twitter’s counsel, the due process balance weighs against
disclosure here. Cf. Al Haramain Islamic Found., Inc., 686
F.3d at 979–80; Kashem, 941 F.3d at 378. Moreover, “even
assuming cleared counsel were available to the plaintiffs and
that it was error not to disclose the additional reasons to such
counsel, [Twitter] ha[s] not shown that [it was] prejudiced.”
Kashem, 941 F.3d at 383. And any prejudice argument
74 TWITTER, INC. V. GARLAND
would face a particularly steep uphill battle, given that I
believe we easily could have, and indeed should have,
decided this case on the unclassified record alone. No due
process violation arises here.
II. CONCLUSION
The Government’s prevention of Twitter from
publishing classified, redacted information satisfies strict
scrutiny, and Freedman’s procedural protections do not
apply in this case. Due process also does not demand that
Twitter’s counsel obtained access to classified information.
I therefore agree with the majority to affirm the district court.