In re National Security Letter

September 26, 2016

In this case, the District Court recognized that the nondisclosure requirements in a National Security Letter statute (18 U.S.C. § 2709(c)) amount to a prior restraint, it nonetheless applied a lesser level of scrutiny than prior restraints receive. The case was appealed to the Ninth Circuit. The Reporters Committee argued the district court's permissive standard is only appropriate in limited circumstances, such as licensing regimes for obscene movies. Section 2709(c), on the other hand, restrains speech on matters of public concern. The brief concluded that a ruling by the Ninth Circuit finding the nondisclosure provision is anything less than a classic prior restraint - requiring the highest burden on the government - will weaken essential constitutional protections guaranteeing the free flow of information to the public.