Supreme Court Declines X’s Challenge To Surveillance Gag Order

Authored by Matthew Vadum via The Epoch Times (emphasis ours),

The Supreme Court declined to take up an appeal by social media company X that challenged a law preventing the company from disclosing how often the federal government sought monitoring of social media users.

X, originally known as Twitter, had said the U.S. government’s ban on disclosing the exact number of receipts of national security-related requests for surveillance of users was unconstitutional.

X is owned by billionaire entrepreneur Elon Musk, who also heads SpaceX and Tesla.

The Supreme Court rejected the petition for certiorari, or review, in X Corp. v. Garland, in an unsigned order on Jan. 8.

No justices dissented. The Court did not explain its decision.

At least four of the nine justices must vote to grant the petition for the case to advance to the oral argument stage.

U.S. Attorney General Merrick Garland was the lead respondent in the appeal.

The decision came after an appeals court decision in August showed that special counsel Jack Smith had secured a search warrant in early 2023 for the Twitter account of President Donald Trump as part of a federal criminal probe of the former chief executive over alleged election interference.

X didn’t immediately hand over the materials sought in the warrant and asked a court to halt an order preventing the company from informing President Trump or anyone else of the existence of the warrant, according to a CNBC summary.

A federal district court fined X $350,000 for contempt for missing the handover deadline.

An appeals court turned away X’s request to void the contempt ruling and nondisclosure order. The company argued the order infringed on its constitutional right to communicate with President Trump, its user.

The federal government carries out surveillance of Americans and foreign nationals by issuing “national security process,” or legal demands, to electronic communication service providers such as X, according to the petition.

“The Executive Branch deems information relating to this process classified, making disclosure of such information unlawful unless the disclosure falls within a narrow statutory safe harbor. This scheme precludes the release of much information that is of significant importance and interest to the public.”

In 2014, Twitter, as the microblogging website was then called, sought to inform the public about the extent to which the government was surveilling its users.

Twitter indicated it planned to disclose the number of times in a prior six-month period that the government served Twitter with national security process, but the government denied its request, relying on the provisions of the USA Freedom Act of 2015, which restored and modified several provisions of the Patriot Act that had lapsed.

The government first told Twitter it had to submit proposed speech requests for pre-publication review. Later it refused the site permission to disclose the number of interactions it had with the government over a specified period.

“Twitter commenced this lawsuit to challenge this pre-publication restraint on its speech,” according to the petition.

The lawsuit was filed in 2014 after former National Security Agency contractor Edward Snowden leaked information detailing U.S. spying and surveillance activities.

Because the Supreme Court decided not to grant the petition, a decision by the U.S. Court of Appeals for the 9th Circuit remains intact.

In that decision, the circuit court held that “restrictions on speech addressing a recipient’s receipt of national security process are not subject to the procedural requirements outlined” in Freedman v. Maryland (1965).

That precedent holds that acts of government censorship must be promptly reviewed by the courts.

The circuit court also declined to evaluate the censorship scheme according to the exacting level of scrutiny given to restraints on speech that have taken place in other contexts, the petition said.

The result of the 9th Circuit’s ruling “was to substantially erode the procedural and substantive First Amendment protections that this Court and other courts of appeals have found essential, in several respects.”

The ruling “is not just wrong as a matter of law: It will have significant, real-world consequences. If this Court does not intervene, different standards will apply in different circuits when entities like Twitter want to disclose how and how often the Government has demanded information from them.

“History demonstrates that the surveillance of electronic communications is both a fertile ground for government abuse and a lightning-rod political topic of intense concern to the public.”

The Biden administration opposed the petition.

The FBI, “which has primary authority for conducting counterintelligence and counterterrorism investigations in the United States,” was given the power to compel nondisclosure because “electronic communications play a significant role in advancing terrorist and foreign intelligence activities and operations,” U.S. Solicitor General Elizabeth Prelogar argued in a reply brief.

“Secrecy is essential to national security letters and [Foreign Intelligence Surveillance Act] orders,” she added.