Court finds Patriot Act gag orders unconstitutional

The U.S. Court of Appeals in New York (2nd Cir.) this week struck down a portion of the Patriot Act that placed a gag order on recipients of "national security letters."

The letters are administrative subpoenas sent by the FBI to organizations — telephone companies, Internet service providers, financial institutions, and even libraries — requesting subscriber information. The letters prohibit the recipients from speaking about their contents to anyone, including the customers whose information the FBI is requesting.

The American Civil Liberties Union challenged the law as a prior restraint on speech. In a ruling this week, the appellate court partially upheld the lower court’s ruling and agreed with the ACLU that the gag orders violated the First Amendment. The court shifted the burden of proof for the necessity of the gag order to the government.

In effect the decision gives courts the opportunity to determine whether government restrictions on speech are justified, instead of allowing the FBI to make that call.

“The fiat of a government official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements,” wrote Judge Jon O. Newman in the opinion.

The ruling also means that the government must justify the gag order that has been placed on the John Doe plaintiff in this case for the past four years.

The ACLU applauded the decision in a statement released on the organization’s Web site.

“We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words ‘national security,’” said Melissa Goodman, staff attorney with the ACLU National Security Project. “This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government’s dangerous gag power and rejected the Bush administration’s position that the courts should just rubber-stamp these gag orders.”