Revised Nondisclosure Provisions of NSL Authority Still Violate the First Amendment, Judge Marrero Rules:
In 2004, Judge Marrerro struck down 18 U.S.C. 2709, the 1986 National Security Security letter provision of the Electronic Communications Privacy Act (modified by the Patriot Act), on Fourth Amendment and First Amendment grounds. My primary blog post about the 2004 case, the 122-page opinion in Doe v. Ashcroft, was here. In 2006, the Patriot Act reauthorization act amended 2709 in response to Judge Marrero's decision. Today, Judge Marrero struck down the new version of 2709 as well in a decision you can read here. Today's decision in Doe v. Gonzales is a mere 106 pages long, and it concludes that the nondisclosre provision violates the First Amendment and "the separation of powers."

  Based on a quick skim, Judge Marrero's argument seems to be that a non-disclosure order is a prior restraint and content-based speech restriction triggering strict scrutiny, and that the procedural safeguards put in place in 2006 are still not enough to satisfy the narrow tailoring requirement. Perhaps the most interesting part of Judge Marrero's opinion, and the one that will probably draw the most attention, is the Judge's rather dramatic lecture about the essential role of Judges in the American form of government. (See around pages 65-75) I can't figure out what work it really does — I think we all understand judicial review — but it's certainly consistent with the style of Judge Marrero's 2004 opinion. As for the First Amendment arguments, I'm not enough of a First Amendment pro to know whether they are persuasive. I'll save that for Eugene, should he be so inclined.