2nd Circuit affirms ruling that NSL ‘gag order’ violates ISPs’ 1st Amendment rights; modifies lower court’s injunction

On December 15, 2008, the U.S. Court of Appeals for the Second Circuit affirmed the U.S. District Court (S.D.N.Y.) ruling that the nondisclosure provision of National Security Letters issued under 18 U.S.C. §§ 2709, 3511(b), constitutes a prior restraint on speech. Prior restraints are presumed unconstitutional, and the government must implement certain procedural protections, including bearing the burden of initiating judicial review of the restraints.

The Court of Appeals held the relief granted by the lower court (an injunction, stayed on appeal, enjoining the government from issuing NSLs altogether) was overly broad. The Court of Appeals limited the injunction to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review.

Read more about the case in United States Law Week: One Aspect of NSL ‘Gag Order’ Law Altered, One Struck to Comply With First Amendment, 77 U.S.L.W. 1391.

The text of the decision may be found on the Court’s website:
John Doe Inc., et al. v. Mukasey, et al., No. 07-4943-cv (12/15/08)

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