TWITTER, INC. V. MERRICK GARLAND, ET AL, No. 20-16174 (9th Cir. 2023)
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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. The FBI allowed Twitter to release its Transparency Report only in a partially redacted form.
The Ninth Circuit 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.” The panel held that Twitter’s constitutional challenges failed to persuade. 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. 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. 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.
Court Description: 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 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
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