X Corp., fka Twitter, Inc. v. Merrick B. Garland, Attorney General, et al.

The U.S. Government conducts surveillance of Americans and foreign nationals by issuing “national security process” to electronic communication service providers such as petitioner X Corp., which operates the online platform formerly known as Twitter. The Executive Branch deems information relating to this process classified, making disclosure of such information unlawful unless the disclosure falls within a narrow statutory safe harbor. This scheme precludes the release of much information that is of significant importance and interest to the public. In this case, the Ninth Circuit—expressly rejecting the contrary holding of the Second Circuit—held that restrictions on speech addressing a recipient’s receipt of national security process are not subject to the procedural requirements outlined in Freedman v. Maryland, 380 U.S. 51 (1965), which (among other things) mandates prompt judicial review of government censorship. The Ninth Circuit also declined to subject the censorship scheme to the sort of exacting scrutiny accorded prior restraints on speech in other contexts. The questions presented are:

1. Whether the Government’s prohibition on disclosure of the receipt of national security process is unconstitutional in the absence of the procedural requirements for prior restraints on speech specified in Freedman.

2. Whether the Government’s prohibition on disclosure of the receipt of national security process should be subjected to the same extraordinarily exacting scrutiny generally applied to content-based prior restraints on speech.