NEWS MEDIA UPDATE · SECOND CIRCUIT · Prior Restraints · June 5, 2006
Panel orders judge to rule on security-letter speech gag
June 5, 2006 · A federal court in New York has been ordered to decide whether the permanent gag imposed on recipients of FBI national security letters seeking access to information and records violates the First Amendment.
The U.S. Court of Appeals in New York (2nd Cir.) returned the case to federal district court this week after the U.S. Supreme Court last fall refused to take the case of several “John Does” who were recipients of the letters, and after Congress changed the law governing such letters. National security letters are administrative subpoenas that allow the FBI, in fighting terrorism, to gain access to electronic records, including those held by libraries and Internet service providers.
A three-judge appellate panel declined to resolve the First Amendment issues in light of changes Congress made to laws pertaining to the FBI’s use of the letters. Between the time the lawsuits were filed and the appellate court ruled, Congress last year changed the USA PATRIOT Act from requiring a total gag on recipients of national security letters to allowing recipients to consult a lawyer for legal advice or help with reference to the request.
A concurrence written by Judge Richard Cardamone noted that the novel First Amendment issues were not “unworthy of comment.” He questioned “the government’s urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate.”
“Further, a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens,” Cardamone wrote. “Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.”
Meredith Fuchs, general counsel of the National Security Archive at George Washington University, said it is unclear what the law change and the court’s decision will mean to the news media’s ability to report on such letters. Initial criticism of the letters was directed at the permanent ban on speech in the original law, specifically “the fact that there would be no way of knowing how these national security letters were used and whether they were being used abusively.”
The law change provides recipients of national security letters options for challenging the government’s demand for information, but it does not help the news media, Fuchs said.
(Doe v. Gonzales) — BW