Supreme Court Keeps Gag Intact as Appeals Court Set to Hear Patriot Act Challenge

WASHINGTON - The Supreme Court today denied an emergency application to vacate a stay in the American Civil Liberties Union's challenge to a Patriot Act provision that authorizes the FBI to demand library and Internet records without judicial review. A district court judge had ordered a gag in the case lifted on September 9, but stayed the ruling on appeal; the Second Circuit Court of Appeals upheld the stay.

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In her ruling today, Justice Ruth Bader Ginsburg said that she was mindful that "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."

The following quote can be attributed to Ann Beeson, ACLU Associate Legal Director:

"We are disappointed by today's decision, but we recognize that this is only a procedural setback in our lawsuit. We will still present arguments on behalf of our John Doe clients before the Second Circuit Court of Appeals next month."

"It is important to note that Justice Ginsburg only addressed our request to immediately lift a gag order on our clients while the legal challenge continues. She did not rule on the merits of our challenge."

"One of the most disturbing aspects of this case is that the gag is preventing us from even explaining the primary First Amendment arguments we made to the Supreme Court for lifting the stay. In a separate challenge to the 'National Security Letter' statute, a federal court has already struck down the law, stating 'democracy abhors secrecy.' Ultimately, we believe that this broad power, which allows the government to seize library and Internet records without judicial authorization, is unconstitutional and offensive to American democracy."

ACLU Senior Legislative Counsel Lisa Graves added, "The decision to leave the gag in place comes at an unfortunate time as Congress is poised to reauthorize and extend these secretive Patriot Act powers this month."

"It is particularly disappointing for our Congressional representatives to be denied an opportunity to hear from individuals who have been directly affected by these powers that need to be reformed. Our fundamental First Amendment freedoms are at stake in this debate and "John Doe" should not be silenced at this critical juncture."

The Second Circuit Court of Appeals will hear arguments in both of the ACLU's National Security Letter challenges on Wednesday, November 2.

The American Library Association submitted a brief to Justice Ginsburg supporting the lifting of the stay on the gag order ruling.