9th Circuit Sides With FBI in Twitter First Amendment Case

The FBI was right to censor Twitter’s transparency report due to national security concerns, a three-judge panel for the 9th U.S. Circuit Court of Appeals ruled Monday, affirming a district court decision and rejecting the company’s First Amendment claims in docket 20-16174.

As part of classified national security investigations, the FBI subpoenaed Twitter for information about platform users, according to the filing. Twitter intended to publicly disclose data about aggregate numbers related to requests received in 2013. The FBI told the platform the number of subpoenas and orders and related data were classified and if shared would harm national security. The FBI allowed the company to release a redacted transparency report detailing the requests.

Twitter’s “constitutional challenges failed to persuade,” the panel wrote. Circuit Judges Carlos Bea, Daniel Bress and Lawrence VanDyke issued the decision, affirming an order from the U.S. District Court of the Northern District of California. VanDyke concurred but disagreed with the panel’s finding that the court needed access to the classified documents to resolve the case. The company didn’t comment.

Twitter has a First Amendment interest in commenting on “matters of public concern involving national security subpoenas,” the panel said: “Nevertheless, based on a careful review of classified and unclassified information, the panel held that the government’s redactions of Twitter’s Transparency Report were narrowly tailored in support of the compelling government interest in national security.” The panel said Twitter’s potential disclosure might “risk making foreign adversaries aware of what is being surveilled and what is not being surveilled.” The disclosure could allow “adversaries” to know “what communication channels to avoid and which to use,” the panel said. The redactions don’t violate the First Amendment, it said.

The panel decided procedural requirements established in Freedman v. Maryland, which were designed to curb censorship, aren’t required “in the context of government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process because such restrictions do not pose the same dangers to speech rights as do traditional censorship regimes.” In Freedman, the Supreme Court in 1965 unanimously ruled in favor of the film industry's challenge to government censorship under Maryland’s motion picture censorship statute.

The panel said due process doesn’t entitle Twitter’s legal team to the classified information: “Although the panel appreciated Twitter’s concern that it could not respond to what it did not know, Twitter’s interest in the classified information did not rise to the level of constitutional imperative.” The panel, however, decided the court itself needed access to the classified materials to make a determination. VanDyke disagreed, saying the panel could have decided the case using the unclassified materials.