Joshua Mast, et al. v. John Doe, et al.

At the outset of this years-long, multi-venue dispute, the district court entered an ex parte order that bars Petitioners Joshua Mast, Stephanie Mast, and Richard Mast (“the Masts”) from disclosing any information that might identify Respondents, even indirectly, under intermediate scrutiny, on the ground that identification would pose a safety risk to Respondents and unspecified family members. The Fourth Circuit held that the order is a content-based prior restraint subject to strict scrutiny, but nevertheless affirmed on an entirely different rationale: that the United States has a compelling interest in protecting the confidentiality of foreign nationals perceived as American collaborators to preserve the Nation’s ability to recruit intelligence assets abroad. No party ever advanced that rationale; the United States never asserted it; and the district court never invoked it. The Fourth Circuit also summarily concluded that the prior restraint was narrowly tailored to serve this novel compelling interest. The Question Presented is: Whether the Fourth Circuit erred in affirming the district court’s content-based prior restraint under strict scrutiny based on a novel public-interest rationale that the parties, the district court, and the United States never presented.