Beryl Howell Held Elon Musk's Xitter in Contempthttps://t.co/BrjBLoyEuC
— emptywheel (@emptywheel) August 9, 2023
On February 1, 2023 - four days after the compliance deadline - Twitter objected to producing any of the account information. Although the company did not question the validity ofthe search warrant, it asserted that the nondisclosure order was facially invalid under the First Amendment. Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order.
You may be wondering: "How does that work?"
In its motion challenging the nondisclosure order, Twitter argued that the order violated the company's First Amendment right to communicate with its subscriber, former President Trump. The company asserted that compliance with the warrant before resolution ofthe motion to vacate or modify the nondisclosure order would preclude the former President from asserting executive privilege to shield communications made using his Twitter account. Although Twitter acknowledged that it "may not have standing to raise [executive privilege] issues," and took "no position on the applicability of executive privilege," the company asserted that prompt compliance with the warrant would nevertheless "impede its ability to effect its First Amendment rights to provide meaningful notice to its user." J.A. 15, 17-18.
I'll quote this because you can expect to see this kind of reasoning in any support of a protective order, or even a gag order, in the D.C. case (I'm less sanguine about Cannon's legal reasoning in SDFL):
The government proffered two compelling interests that supported nondisclosure of the search warrant: preserving the integrity and maintaining the secrecy of its ongoing criminal investigation ofthe events surrounding January 6, 2021. Gov't Br. 20. Those interests are "particularly acute where, as here, the investigation is ongoing." In re Subpoena, 947 F.3d at 156. Investigating criminal activity is a "core government function that secures the safety of people and property." Google LLC, 443 F. Supp. 3d at 452. Breaching the investigation's confidentiality could open the door to evidence-tampering, witness intimidation, or other obstructive acts. See 18 U.S.C. § 2705(b); see also In re Subpoena, 947 F.3d at 156 ("[P]rotecting the secrecy of an investigation" is a compelling government interest.). Here, the district court specifically found reason to believe that disclosure of the warrant would jeopardize the criminal investigation. See J.A. 1.
As I say, Trump's never been up against a criminal investigation before. He's been pretty free at demanding black people be rounded up, jailed, and executed (especially when he didn't know what he was talking about), but he has little experience with rich white people going to jail. He's in for quite an education.
The long and short is, the government has recognized reasons for restricting speech, which reasons under the right circumstances can lead to such restrictions being upheld by a court of law. And criminal investigations, and prosecutions (witness tampering, witness intimidation, and "other obstructive acts" being the primary concern behind any bog-standard criminal protective order regarding pre-trial disclosures) can be reasons to restrict an individual's freedom of speech.
Trump in New Hampshire declared he would openly fuck around. And then he will find out. I still think it's more a matter of "when" than "if," but we'll see.
(And yeah, this seems pretty clear, too:
The key takeaway I have from this? Elon Musk was desperately searching for a way to notify Trump of the details of Smith’s criminal investigation.
— Bradley P. Moss (@BradMossEsq) August 9, 2023
The courts said no. https://t.co/nfKFiEmGF1
No comments:
Post a Comment