Can a case about the freedom of speech be resolved in a secret court? In a widely publicized case, Twitter sued the Obama administration in a federal district court in California. The company wished to release a transparency report relating to the user information it is forced to turn over to the government under various surveillance collection programs, including the Foreign Intelligence Surveillance Act (Fisa) and the National Security Letter statutes. The government’s preferred venue for resolving Twitter’s First Amendment claim, though, resembles a black box more than an American court.

According to the government, the Fisa court in Washington, DC should adjudicate Twitter’s constitutional claim about its right to speak. At a 5 May 2015 hearing before the federal court in California, the government urged it to transfer major parts of the case to the secret Fisa court, which it deigns to claim is better suited to hearing complaints about ... overzealous secrecy.

But secret tribunals are not appropriate forums to resolve questions of constitutional law about secrecy itself. Although the Fisa court is a federal court composed of judges appointed under the United States Constitution, just like the federal trial court in which Twitter brought its case, it is ill-equipped to resolve questions that directly impact public knowledge of substantial government programs.

The company argues that the First Amendment permits it to publish the specific number of requests that it receives pursuant to secretive foreign intelligence and national security authorities, including Fisa.

Twitter is making a classic constitutional claim. The micro-blogging platform argues that, like any publisher or street-corner speaker, it cannot be gagged from communicating with the public unless the government has a very good reason to muzzle it. Such restraints on speech are heavily disfavored under the First Amendment and, rightly, are rarely upheld by the courts.

Even after the early June passage of the USA Freedom Act, which makes important changes to the intelligence community’s surveillance programs, a key problem remains unresolved: the recipients of secret national security requests are routinely gagged from disclosing data about those requests. The decision about where Twitter’s First Amendment battle should be fought could reveal a crucial limitation in the USA Freedom Act’s reforms.

In the federal district courts, the public and the press – acting as a surrogate for the public – have a First Amendment right of access to judicial opinions as well as to court proceedings and documents. For over 30 years, the law of the land has been clear that the presumption of public access to the courts can be overcome only by an “overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”



The right of public access to court proceedings ensures that the courts, and the government, are subject to effective democratic oversight.

Yet the Fisa court remains hostile to public participation generally – and to First Amendment rights specifically. It has rejected the presumption of public access to court opinions that applies in every other federal court in the nation. On the question of standing, it has required that individuals who seek access to Fisa court documents assert rights that are different and greater than those of the general public.

The need for more transparency at the Fisa court was at the center of the effort to pass the USA Freedom Act. The disclosure of the controversial bulk telephony metadata collection program – a program which itself was authorized by a secret 2006 Fisa court opinion – instigated many of the changes now underway.

Section 402 of the new law requires the Director of National Intelligence to conduct a “declassification review” of Fisa court opinions that include a “significant construction or interpretation” of the law.

These reforms implicitly recognize that the public suffers when law is created and interpreted in secret. But make no mistake: this statutory fix leaves untouched the Fisa court’s troubling contention that the First Amendment right of access, which keeps courthouse doors open across the country, does not reach into its dark corridors.

To force Twitter’s First Amendment case into a court that has outright rejected the application of these basic constitutional liberties is particularly perverse. In fact, the government acknowledged at the May 5 hearing that the Fisa court has never once considered a First Amendment challenge to the constitutionality of secrecy requirements.

Twitter’s case has raised questions, sure to be with us for some time, about the right of technology and communications companies to speak freely about the part they are compelled to play in surveillance programs. Let’s get first principles right. The only place to justify secrecy is in the open.