Twitter Can Challenge Government Gag Order | Courthouse News Service
Tuesday, November 28, 2023
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Twitter Can Challenge Government Gag Order

(CN) - Twitter has the right to respond to a temporary gag order sought by the government, a federal judge ruled, saying he was forcing the government to "disclose its intention to silence Twitter."

The Obama administration had asked U.S. Magistrate Judge John Facciola in Washington, D.C., for an order barring Twitter from telling anyone about the existence or content of a federal grand jury subpoena for 90 days or until the court lifted the order.

Though the application remains under seal, Facciola instructed the government to file a public, redacted version that would give Twitter the chance to respond in court. He invited Twitter to intervene as a respondent.

"Twitter should first be heard before the court restricts its right to free speech," Facciola wrote in his nine-page order.

He said the government "appears to believe that the appropriate course of action is for the court to issue the gag order and for Twitter to either violate the order and defend itself in a contempt hearing or move to quash."

But this would place too heavy a burden on Twitter, Facciola wrote.

He said the government 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," he added.

The judge brushed aside the government's concerns about secrecy, saying the issue "is not really about grand jury secrecy."

"No details about the grand jury investigation could possibly be revealed by the government filing a redacted application on a public docket," Facciola wrote. "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."

Facciola temporarily barred Twitter from divulging any information about the underlying grand jury subpoena until he issues a final order. At the same time, he gave Twitter "the opportunity to come before the court and assert, if it chooses, its First Amendment rights."

"All this court is doing is making the government disclose its intention to silence Twitter," Facciola wrote. "This would in no way prejudice the underlying grand jury proceedings or render them public in any way."

He noted that the government filed a similar application about a year ago in a different court. When the judge in that case ordered the government to explain its application, it "simply chose not to respond," Facciola said.

"Only by directly involving Twitter can this court ensure that appropriate briefing will be filed," he wrote.

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