First Amendment protects the right to disclose government requests for telephone and Internet services subscriber information

Today, the Reporters Committee for Freedom of the Press and a coalition of 20 media organizations submitted a friend-of-the-court brief to the U.S. Court of Appeals for the 9th Circuit in the case of In re National Security Letter. The coalition brief is in response to a decision by a panel of the 9th Circuit that allows the government to prohibit wire or electronic communication service providers, such as social media companies and email and Internet service providers, from disclosing any information about National Security Letters (NSLs) they receive requesting information about subscribers, including the receipt of a letter itself. The brief urges the court to rehear the case, arguing that the nondisclosure requirement violates the First Amendment rights of those who receive NSLs because it restrains their speech about government conduct and hinders journalists’ ability to inform the public about this type of government activity.

“The ability to speak out about government conduct is at the core of our First Amendment rights,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. “When the government is able to prevent people from even broadly talking about its actions, it gives officials a license to operate in secrecy. The panel’s decision stifles public debate about government surveillance and prevents journalists from reporting on these activities for the benefit of us all.”

An NSL is a legal demand that allows the government, without the approval of a judge, to obtain a person’s non-content information, such as transactional records and phone numbers, from a company or service provider if the information is deemed relevant to a national security investigation.

The coalition brief argues that the courts have historically held that prohibiting the restraint of speech is at the core of First Amendment protections. According to the brief, “The earliest cases involving the press in the United States reflected the understanding that the First Amendment meant, if nothing else, that the press should be able to publish information about government conduct free from prior restraint… To be sure, the history of the First Amendment involved debate and disagreement about the scope of its protections… But throughout this debate, freedom from prior restraint was considered the First Amendment’s bedrock principle.”

The brief also argues that preventing recipients of NSLs from talking about the legal demand doesn’t just threaten free speech, but also erodes journalists’ ability to report on government actions.

“[B]ecause of the secrecy shrouding government surveillance programs, the news media must rely on recipients of NSLs and other forms of electronic surveillance orders to share information with them so they can report on this subject. Accordingly, as long as NSL recipients are prevented from disclosing the existence of NSLs, the press is unable to fulfill its constitutionally-recognized role of keeping the public informed about government activities, including the extent of government surveillance.”

The brief highlights the Supreme Court’s 1971 “Pentagon Papers” decision as the greatest expression of First Amendment protections against prior restraint. Referencing Justice William Brennan’s concurring opinion in the case, the brief underscores the importance of upholding these protections, especially in instances involving national security, so that the public can hold its government accountable:

“[T]he only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry – an informed and critical public opinion which alone can here protect the value of democratic government.”

The full coalition brief is available here.