AAN Takes on National Security Letters

AAN has joined an amicus brief drafted by the Reporters Committee for Freedom of the Press in the case of Merrill v. Holder, which is a challenge to a non-disclosure agreement contained in a National Security Letter (NSL) issued by the FBI to Nick Merrill. It’s actually a fascinating case, as the NSL – a purely administrative subpoena issued under the Electronic Privacy Communications Act without the requirement of prior court approval – was first issued in 2004 and prevented Merrill from speaking about the subject of the NSL or even telling anyone that he had received it. He eventually filed a “John Doe” lawsuit arguing that his free speech rights were being violated. That case was finally settled to allow Merrill to reveal that he had received an NSL, but he still wasn’t allowed to divulge its contents.

Merrill, represented by the Media Freedom and Information Access Clinic at Yale Law School, has now sued in the U.S. District Court for the Southern District of New York, arguing that the restriction against disclosing the categories of electronic communications information sought by the NSL, is an unconstitutional prior restraint on speech. Our brief (PDF), which was filed on March 18, 2015, addresses unique to the media. It focuses on the First Amendment right of the press and public to receive information from a willing speaker, and we emphasize the importance to the press and the public of the specific type of information that Merrill seeks to disseminate. Among the specific arguments are:

  • The First Amendment protects not just the right to speak but also the right to receive information.
  • The press’ and public’s right to receive information is particularly high where the speech at issue concerns government conduct and the subjects of these NSLs are precisely this kind of communication. There is virtually no information available to the public about NSLs and significant public debate over their legality. We don’t know what the government asks for, what they’re allowed to ask for and what you can reveal.
  • This is a classic prior restraint which prevents public discussion about the legality of the entire NSL program. But, more importantly, it threatens the reporter-source relationship as well. There is suspicion, if not some evidence, that the FBI has used NSLs to obtain the communication records of reporters as part of leak investigations. This chills another class of speech.

This is one of the first cases to fully press for the right of a recipient of an NSL to reveal the contents of that letter. Beyond just involving a general First Amendment right to free speech, we felt the need to get involved because we are certain that AAN members and their readers would like to be able to see how the FBI has used NSLs and speak to recipients of those letters as a means of overseeing whether the government is abusing its powers and trying to threaten citizens into silence under the guise of “national security.”

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