ACLU and EFF Call on Court to Hear Twitter’s Challenge to Government Censorship of Company’s Surveillance Transparency Reporting

SAN FRANCISCO — The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed an amicus brief in the Ninth Circuit Court of Appeals calling on the full court to rehear Twitter v. Garland, Twitter’s long-running challenge to the government’s censorship of its surveillance transparency reporting.

In 2014, Twitter sought to disclose certain aggregate statistics about the types of U.S. national security surveillance orders and requests it had received, and the government objected to the disclosure. In response, Twitter brought suit on First Amendment grounds. In 2020, the ACLU and EFF filed an amicus brief with the Ninth Circuit in support of Twitter, arguing that this censorship is a prior restraint on speech that should be subject to extraordinarily exacting scrutiny. Unfortunately, in a disappointing and dangerous opinion last month, the court ruled it was not a violation of the First Amendment for the Justice Department to censor Twitter’s draft transparency report nine years ago. Twitter is now seeking rehearing of that decision en banc, or in front of the whole court.

In support of Twitter’s petition, the amicus brief from the ACLU and EFF explains the proper level of scrutiny that should apply here. It also highlights the real-world problems with the panel’s reasoning, which could result in courts applying a lower standard of scrutiny where the government censors information that flows from a government process or proceeding.

“The public should have a clearer picture of U.S. government demands of tech companies, and Twitter has the First Amendment right to speak about this important issue,” said Ashley Gorski, senior staff attorney with ACLU’s National Security Project. “Not only did the panel’s decision conflict with decades of Supreme Court precedent, but its reasoning could enable broad restrictions on speech concerning our interactions with the government. We hope the full Ninth Circuit will hear the case and address these serious problems.”