Doe v. Gonzales
Justice Ginsburg, acting as Circuit Justice for the Second Circuit, refused to lift a stay that kept a gag order in place against a library group member who had received a secret FBI records request known as a National Security Letter.
The order leaves the man barred from publicly identifying himself while an appeals court continues reviewing whether the law's permanent secrecy requirement violates the First Amendment, even though his identity had already leaked out through a court website error.
“interference with an interim order of a court of appeals cannot be justified solely because [a Circuit Justice] disagrees about the harm a party may suffer.”
Explains why she declined to second-guess the Second Circuit's decision to keep the gag order in place.
How it got here: A federal district court blocked enforcement of the gag provision; the Second Circuit stayed that ruling pending appeal; Doe asked the Circuit Justice to vacate the stay.
The Case in Depth
What happened
A member of the American Library Association, called "John Doe," received a National Security Letter from the FBI demanding subscriber and billing records tied to an internet address. A federal law, 18 U.S.C. § 2709(c), barred Doe from ever disclosing that he had received the letter. Doe, joined by the ACLU, sued, arguing the permanent gag violated his free-speech rights and blocked him from joining the public debate over renewing the Patriot Act.
The question before the Court
Could a librarian who received a secret FBI records demand be allowed to reveal his identity while an appeal over the demand's gag order was still pending?
Why it matters
The ruling means the recipient of the FBI's secret records demand must stay silent about his own experience during an ongoing public debate over renewing the Patriot Act, even though a court's own mistake had already exposed his identity. It illustrates how difficult it is to get a single justice to override an appeals court's decision to pause a lower-court ruling while an appeal proceeds.
What changes now
The stay stays in place, so Doe remains barred from publicly confirming he received the National Security Letter while the Second Circuit's expedited appeal moves forward. The appeals court had already set a briefing schedule with the Government's reply due in mid-October 2005, and it is expected to rule on the underlying constitutional question after argument. This order resolves only the request to lift the stay, not the merits of the First Amendment challenge.
What this does not decide
This order does not decide whether the permanent gag provision in 18 U.S.C. § 2709(c) is constitutional. Justice Ginsburg addressed only whether to lift the Second Circuit's temporary stay while that court continues reviewing the district court's injunction on an expedited basis.
How the Court got there
The legal reasoning, step by step
- Justice Ginsburg applied the standard for a single Circuit Justice reviewing an appeals court's interim order: such intervention is appropriate only when the applicant shows extraordinary cause, not merely that the Justice might weigh the harms differently than the court of appeals did.
- She gave weight to the fact that the Second Circuit was already moving quickly toward a full decision on the merits, having set an expedited briefing schedule with argument to follow shortly, which counseled deference to that court's own balancing of harms.
- She noted that the district court had declared part of a federal statute unconstitutional as applied, calling this the kind of significant ruling that warrants careful appellate review before being allowed to take full effect.
- She also considered the Government's point that Doe's affiliation with the American Library Association was already public and that the Association remained free to lobby Congress about the impact of National Security Letters on its members, which lessened the practical harm from keeping the gag in place.
- Weighing these considerations against Doe's arguments about the inadvertent disclosure of his identity, she concluded that the applicants had not shown cause extraordinary enough to justify overriding the Second Circuit's stay before it finished its own review.