Grand jury subpoenas — as well as some other subpoenas — are sometimes accompanied with gag orders, barring the recipient (the person or entity who must turn over documents) from revealing the existence of the subpoena. Some courts, though, are scrutinizing such speech restrictions, and especially the procedures used for imposing such restrictions. This decision yesterday by federal magistrate judge decision in In re Application of the United States of America for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena #GJ2014032122836 (D.D.C. Mar. 31, 2014) offers a good example:
This Court is in receipt of an Application from the government pursuant to 18 U.S.C. § 2705(b) requesting that Twitter, Inc., be prohibited from notifying any person of the existence or content of federal grand jury subpoena # GJ2014032122836 for a period of either ninety (90) days, or until further order of this Court, whichever is shorter. For the reasons stated below, the Court will not rule on the government’s Application until it has filed a public, redacted copy of its Application and Twitter has filed a notice indicating whether it intends to be heard in this matter….
The present Application, made pursuant to 18 U.S.C. § 2705(b), is the third the Court has received in recent weeks. [The court explains that it treated those applications much the same way as this one. -EV] … The government has since filed interlocutory appeals of those Orders … and moved Chief Judge Richard W. Roberts to reach the merits of the applications and issue the government’s proposed orders himself….
The government asks this Court to issue what is, essentially, a “gag order”: Twitter would be prohibited from communicating certain information to a certain individual for a certain period of time. This would implicate Twitter’s rights under the First Amendment because it would be both a content-based restriction of speech and a prior restraint on speech….
It is equally true that the Application implicates Twitter’s due process rights under the Fifth Amendment. The Supreme Court has long recognized that “the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.” A content-based restriction on the fundamental right to free speech certainly meets this standard as the First Amendment is “hostil[e]” to such restrictions….
In this case, due process requires that Twitter be given an opportunity to be heard before the ninety-day gag order is issued. The government’s need for the secrecy of the grand jury proceedings is protected by temporarily restraining Twitter from divulging any information about the underlying grand jury subpoena until after this Court issues a final ruling in this matter. At the same time, Twitter is given an affirmative opportunity to come before the Court and assert, if it chooses, its First Amendment rights….
4. The Government Has Already Failed to Respond to the Court’s Concerns When Twitter Was Not Provided an Opportunity to Be Heard
On March 14, 2013, Assistant United States Attorney John Han submitted an application under § 2705(b) to Magistrate Judge Deborah A. Robinson requesting that Twitter be prohibited from “disclos[ing] any and all records or information properly sought” under a particular grand jury subpoena. Order, Misc. Case No. 13–213[# 1] (D.D.C. Mar. 14, 2013) (under seal). The same day, Judge Robinson ordered that, “by no later than March 28, 2013, the United States shall file a memorandum in which In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2705(b), [866 F.Supp.2d 1172 (C.D.Cal.2011) ] and all other applicable authorities are addressed.” Judge Robinson never received any supplemental briefing, and she never issued the nondisclosure order in that matter.
In light of the government’s failure to respond to Judge Robinson’s order, this Court is exceedingly hesitant to proceed in an ex parte matter [i.e., without letting Twitter be heard -EV]. The Central District of California case cited by Judge Robinson held that there is no statutory authority for the order that the government requests in this matter and that, as a result, a provider like Twitter cannot be gagged for even a short period of time. Yet when Judge Robinson ordered the government to respond to the questions raised by this case, the government simply chose not to respond. Only by directly involving Twitter can this Court ensure that appropriate briefing will be filed….
[Moreover, under the common-law right of access to court documents], it is clear that the government must make a public, redacted version of its Application available because it has no interest in preventing what amount to legal arguments from being made public. Furthermore, there is a significant public interest in allowing the public to know that the government is affirmatively seeking to silence an entity that is not a party to any judicial proceedings. All this Court is doing is making the government disclose its intention to silence Twitter. This would in no way prejudice the underlying grand jury proceedings or render them public in any way.
Although the government cites In re Sealed Case, 199 F.3d 522, 526 (D.C.Cir.2000), for the proposition that “[u]nlike typical judicial proceedings, grand jury proceedings and related matters operate under a strong presumption of secrecy,” the present matter is not really about grand jury secrecy. Instead, it is about interdicting Twitter from advising its subscriber of a grand jury subpoena. No details about the grand jury investigation could possibly be revealed by the government filing a redacted Application on a public docket. Even this Court does not know the details of the underlying investigation. The real question is whether it is appropriate to keep secret the fact that the government seeks to impose upon Twitter a prior restraint on its speech. That information should be included on the public docket in a redacted form….
Disclosure: I am filing, as counsel, an amicus brief this week in In re National Security Letter, a case that is challenging gag orders attached to National Security Letters (which are in some ways similar to subpoenas).