Connecticut Judge Bars Enforcement of NSL Gag Order
On Friday, September 9, U.S. District Court Judge Janet C. Hall granted a Connecticut member of the American Library Association's motion for a preliminary injunction. Her ruling enjoined the government from enforcing the part of 28 U.S.C. 2709(c) that prevents the library association from revealing its identity as an organization that received a National Security Letter (NSL) from the FBI in August. The ACLU, which is both a co-plaintiff with the library organization and represents it, hailed the judge's decision, stating "the court has recognized that gagging our client from participating in the Patriot Act debate violates the First Amendment and is profoundly undemocratic." The ACLU's press release is available here.
Judge Hall stayed the effect of the injunction until September 20 to give the government an opportunity to file an expedited appeal to the Second Circuit Court of Appeals and to seek a stay from that court. See pages 27-29 of Judge Hall's ruling. A spokesperson for the Department of Justice is quoted as saying that the Department is "actively considering all of [its] options, including an appeal."
The New York Times reports (subscription req'd) that the NSL recipient "is believed to be Library Connection, a library consortium based in Windsor, Conn., that serves as the back office for many libraries in the Hartford area."
Judge Hall found that the part of 28 U.S.C. 2709(c) that prevents the library association from revealing its identity operated as a prior restraint and as a content-based restriction and was therefore subject to strict scrutiny. Pages 10-14 of Judge Hall's ruling. After she reviewed classified documents that the government claimed supported its contention that national security would be jeopardized if the library entity identified itself, Judge Hall found that the information failed to show a compelling state interest in keeping the identity of the NSL secret. Pages 15-21 of the ruling. She said the evidence did not demonstrate that revealing the identity of the NSL recipient would cause the target of the government's investigation to "to deduce that the government is aware of their/his/her identity, leading them to flee or to go deeper under cover." Pages 16-17 of the ruling. She also found that the statute is not narrowly tailored to meet its purposes. Pages 21-27 the ruling.
Judge Hall's ruling, which found the statute unconstitutional as applied, leaves for later determination whether 28 U.S.C. 2709(c) is unconstitutional on its face. A federal court in the Southern District of New York earlier found the statute unconstitutional and that decision is on appeal to the Second Circuit. ACLU v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y.), appeal pending sub nom. Doe v. Gonzales, No. 05-0570-cv.
Posted by Randy Gainer
Judge Hall did the right thing in ruling this portion of the Patriot Act unconstitutional. A democracy cannot exist where free speech does not. If the gag order remains in place it effectively prohibits a librarian from promoting public awareness about the government's violation on citizens' privacy rights and fails to protect the privacy rights of individuals whose records were seized.