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John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008 )

The legal issue before the U.S. Court of Appeals for the Second Circuit is whether Section 2709, 18 U.S.C. Sec. 2709, as amended by the USA Patriot Act, which provides for the issuance of National Security Letters (NSLs) to seek materials “to protect against international terrorism or clandestine intelligence activities,” violates the First Amendment. The district court ruled that the “categorical, indefinite non-disclosure provision” of the law violated the First Amendment because the secrecy provision was not narrowly tailored enough to advance the government’s compelling interest in protecting terrorism investigations, and because the permanent ban on disclosure “operates as an unconstitutional prior restraint on speech in violation of the First Amendment.” The federal government appealed, and the enforcement of the order was stayed pending the appeal to the Second Circuit.

On August 1, 2005 the AAUP joined with the American Booksellers Foundation for Free Expression, the American Library Association, the Association of American Publishers, the Freedom to Read Foundation, and the PEN American Center in filing an amicus brief (pdf), which was written by Jenner & Block. The brief argues that by giving the government an unprecedented ability to intrude on the intellectual and academic freedom of the above organizations, their members and patrons, and the general public, Section 2709 violates the First Amendment in at least two respects. First, it authorizes the compelled disclosure of constitutionally protected information without any governmental showing that the information actually further a terrorism investigation or any other substantial governmental interest. Second, Section 2709’s automatic gag rule violates the First Amendment because it unjustifiably imposes a blanket ban of secrecy upon recipients of orders without any showing of need for such secrecy.

Status: In March 2006, Congress amended the relevant provision of the Patriot Act to allow for judicial review of NSLs and to permit recipients of NSLs to consult with an attorney. Because of these changes, the Second Circuit declined to decide the First Amendment implications of the revised provision of the Patriot Act before the trial court had had a chance to do so. The appeals court therefore vacated and remanded the case to the U.S. District Court for the Southern District of New York. On September 9, 2007, the District Court issued a decision (.pdf) in which it struck down the amended National Security Letter provision. The opinion held that the Patriot Act provision permitting the FBI to prevent those who received NSLs from speaking about them was unconstitutional, and also held that because the Patriot Act prevented courts from engaging in meaningful judicial review of that “gag power,” the statute violated the First Amendment and the principle of separation of powers.

Update: Attorney General Michael Mukasey appealed to the Second Circuit the portions of the District Court’s decision relating to when an NSL can be issued and the breadth of the gag order that accompanies an NSL. The plaintiffs opposed this appeal, urging the Second Circuit’s affirmance of the decision of the lower court. On March 17, 2008, the AAUP filed an amicus brief (.pdf) with the American Library Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, and the PEN American Center in support of the plaintiff’s request for affirmance. The AAUP and the other amici argue in the brief that the lower court correctly found that the features that made the former Section 2709 unconstitutional were camouflaged by, but survived under, the new Section 2709 and Section 3511. The brief, which was drafted by Jenner & Block, also notes that the revised statutory provisions, if upheld, would give the government a blank check to issue NSLs as it wishes, without any obligation to demonstrate that its intrusions on First Amendment rights are truly necessary, and without any obligation to consider competing interests in free speech. Moreover, the brief argues that the provisions, if upheld, would deprive the courts from meaningful review of the government’s certification of an NSL gag order as “necessary.”

On December 15, 2008, the Second Circuit handed down its opinion (.pdf), upholding in part the district court’s ruling. The court held that the government bears the burden of justifying its “gag orders” on NSL recipients, and invalidated sections of the Patriot Act narrowly limiting court review of the gag orders. In addition, the government is now obligated to justify the gag order that was imposed on the “John Doe” NSL recipient in this case.