Oct. 17, 2017 – The NewsGuild-CWA joined the Reporters Committee for Freedom of the Press and other organizations in filing a friend-of-the-court brief challenging the constitutionality of the national security letter (NSL) statute, which grants the FBI the power to demand customer records from electronic communication service providers and impose gag orders banning providers from disclosing any details of the NSLs they receive.
Certain NSL recipients challenged the NSL statute’s constitutionality, arguing that the gags imposed by the FBI violated the First Amendment. The district court denied the NSL recipients’ petition, and a panel of the 9th Circuit upheld the ruling. The NSL recipients have petitioned for rehearing.
The brief, filed Oct. 12, argues that the First Amendment imposes a demanding standard for prior restraint, highlighting the historical rejection of prior restraint in the United States and England and arguing that prior restraints on speech about government conduct are presumptively unconstitutional. RCFP’s amicus brief also argues that the panel erred in de-emphasizing the Pentagon Papers case and applying a weaker form of strict scrutiny. Finally, the brief argues that this weaker form of strict scrutiny, if permitted, will have detrimental effects for the free press and public debate.