Twitter, Inc. v. Barr
- Yvonne Rogers
- 4:14-cv-04480
- U.S. District Court · Northern District of California
- 11
In Twitter v. Barr, Judge Rogers granted the Government summary judgment and denied Twitter’s motion over restrictions on national-security disclosures.
Twitter, Inc. was barred from publishing the challenged national-security information in its Draft Transparency Report; the ruling upheld the Government’s restrictions on that proposed publication.
What happened
Twitter, Inc. v. Barr concerned Twitter’s effort to publish a transparency report stating how many national-security letters and Foreign Intelligence Surveillance Act orders it received, including possible zero totals. The Government restricted publication of parts of the report because it classified the information and said disclosure could harm national security.
The Government asked for summary judgment, which resolves a case when no important factual dispute requires a trial. Twitter asked for summary judgment instead, arguing that the restrictions violated the First Amendment and that the Government had not met the demanding constitutional test for restricting speech. Twitter also argued that the review process lacked required safeguards. The case included a separate claim seeking to prevent prosecution under the Espionage Act.
Judge Yvonne Gonzalez Rogers granted the Government’s motion for summary judgment and denied Twitter’s cross-motion. She held that the Government’s evidence justified the restrictions under the demanding constitutional test called strict scrutiny, and ruled that Twitter had not pleaded a claim based on the procedural safeguards it invoked. The court also dismissed the Espionage Act-related claim as moot and left for another case whether such safeguards apply to classification-based speech restrictions.
The detailed version
- Twitter, Inc. v. Barr · No. 4:14-cv-04480
- Yvonne Rogers
- Apr. 17, 2020
Background
Twitter challenged Government restrictions on its proposed 2014 Draft Transparency Report. The report concerned the number and types of national-security legal process Twitter received from July 1 through December 31, 2013. The proposed disclosures included aggregate numbers of national-security letters and Foreign Intelligence Surveillance Act orders, reporting in numerical ranges, comparisons with other providers, and a description of Twitter’s potential exposure to national-security surveillance.
Twitter alleged that the Government had improperly classified portions of the report and had imposed an unlawful prior restraint—a restriction on speech before publication—in violation of the First Amendment. Twitter also alleged that the Government’s decision was final agency action reviewable under the Administrative Procedure Act. A third count sought injunctive relief barring Government prosecution under the Espionage Act if Twitter disclosed information in the report.
The Government previously moved for summary judgment based on a classified declaration. The court denied that motion without prejudice, finding the evidence then submitted insufficient to overcome the strong presumption against content-based prior restraints. The Government later submitted additional classified and unclassified declarations, including declarations from Michael Steinbach, Michael C. McGarrity, and Jay S. Tabb, Jr. The court reviewed classified evidence privately and did not disclose the classified Tabb declaration to Twitter’s counsel because of national-security concerns.
Cross-Motions for Summary Judgment
The Government argued that its restrictions satisfied strict scrutiny. Strict scrutiny is the demanding constitutional test applied to content-based speech restrictions; the Government had to show that the restrictions served a compelling interest and were narrowly tailored. Twitter argued that the Government failed that test, failed to provide procedural safeguards required by Freedman v. Maryland, and had to give its cleared counsel access to the classified Tabb declaration.
The court reaffirmed that strict scrutiny applied because the restrictions were content-based prior restraints. It then considered the full evidentiary record, including the classified declarations. The court found that the declarations gave sufficiently specific reasons why disclosure of even aggregate information, years after the relevant period, could reasonably be expected to cause grave or imminent harm to national security. It also found that the restrictions were narrowly tailored in substance and that no narrower restrictions could be made.
Procedural Safeguards
Twitter argued that Freedman required expedited, Government-initiated judicial review and other protections before the Government could restrain publication. The court explained that systems imposing prior restraints generally must use narrow, objective, and definite standards and procedural protections limiting the risk of excessive censorship.
The court held that Twitter’s Second Amended Complaint did not assert a claim based on the absence of those safeguards. The complaint challenged whether the information was properly classified, whether disclosure threatened national security, and whether the Government’s decision violated the First Amendment as final agency action. It did not seek relief requiring compliance with Freedman safeguards or challenge the lack of such safeguards in Executive Order 13526, its application to the report, or the statutory reporting scheme. The court therefore ruled that it could not grant Twitter affirmative relief on that theory and did not decide whether the Government’s process actually satisfied Freedman.
Disposition
The court granted the Government’s motion for summary judgment and denied Twitter’s cross-motion for summary judgment. The court also dismissed the third count as moot. It stated that whether procedural safeguards apply to a system of prior restraints based on classification under Executive Order 13526 would be left for another action. The order terminated Docket Nos. 309 and 311.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.