United States District Court, District of Columbia
IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR NONDISCLOSURE ORDER PURSUANT TO 18 U.S.C. § 2705b FOR GRAND JURY SUBPOENA #GJ2014032122836
MEMORANDUM OPINION AND ORDER
JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE
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. See Application for Order Commanding Twitter, Inc. Not to Notify Any Person of the Existence of Grand Jury Subpoena [#1] (sealed) at 1. 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. With respect to the first two applications, the Court requested that Yahoo!, Inc. and Twitter, respectively, intervene as respondents and indicate whether they wish to be heard before the Court rules on the government’s applications. See Amended Order, Misc. Case No. 14-287 [#3] (D.D.C. Mar. 24, 2014); see also Amended Order, Misc. Case No. 14-296 [#3] (D.D.C. Mar. 24, 2014). In separate Orders, the Court also ordered the government to file public, redacted copies of its applications because of the “common law right of access to court documents” which requires that “as much material as possible  be made public.” Order, Misc. Case No. 14-287 [#4] (D.D.C. Mar. 24, 2014); see also Order, Misc. Case No. 14-296 [#4] (D.D.C. Mar. 24, 2014). The government has since filed interlocutory appeals of those Orders- which were not final and did not address the merits of the applications-and moved Chief Judge Richard W. Roberts to reach the merits of the applications and issue the government’s proposed orders himself. See Government’s Appeal from Magistrate Judge’s Orders Regarding Government’s Application for Order Pursuant to 18 U.S.C. § 2705(b), Misc. Case No. 14-287 [#5-1] (sealed) (hereinafter Government’s Appeal 14-287); see also Government’s Appeal from Magistrate Judge’s Orders Regarding Government’s Application for Order Pursuant to 18 U.S.C. § 2705(b), Misc. Case No. 14-296 [#5-1] (sealed) (hereinafter Government’s Appeal 14-296).
The present Application, while related to a different grand jury investigation and subpoena, is identical to the previous two applications with respect to the legal issues raised.
A. Twitter Should Be Heard Before a Final Order Is Issued
1. The First and Fifth Amendments Afford Twitter a Right to Be Heard
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. See In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.Supp.2d 876, 881-883 (S.D. Tx. 2008) (holding that an open-ended gag order violates the First Amendment) (hereinafter In re Sealing). Magistrate Judge Stephen Smith’s opinion in In Re Sealing is persuasive, and his conclusions regarding the First Amendment rights at issue when a gag order is issued are correct.
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.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring) (quoted in Goldberg v. Kelly, 397 U.S. 254 (1970)). 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. Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm’n of New York, 447 U.S. 530, 537 (1980).
Defining the scope of “what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.” Goldberg, 397 U.S. at 263 (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)). 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.
2. The Statutory Language Does Not Compel a Different Result
In its interlocutory appeals, however, the government takes a different view: “if the government demonstrates to the satisfaction of a court that there is reason to believe that notification of a subpoena’s existence to any other person will result in one or more of the five enumerated conditions, the ‘court shall enter such an order.’” Government’s Appeal 14-287 at 5; Government’s Appeal 14-296 at 5 (citing 18 U.S.C. § 2705(b)) (emphasis added to original quotation). This argument fails for two reasons. First, the Court has not yet issued a ruling on whether the government has carried its burden. The government presumably will, which is why the Court is granting the government the same preliminary relief that it seeks as final relief and thus Orders Twitter to not disclose information about the grand jury subpoena until this Court rules otherwise. Second, and more importantly, the Court cannot issue an order that would violate the Constitution by violating Twitter’s due process rights. Thus, until Twitter has an opportunity to be heard, this Court will not issue a final order in this matter.
Instead, 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. Given the circumstances, however, those options place too much of a burden on Twitter. The government loses nothing by allowing Twitter to first be heard on whether it objects to being gagged. This Court has repeatedly emphasized this point, but will do so again: on a preliminary basis, this Memorandum Opinion and Order bars Twitter from ...