Summary
The Fourth Circuit affirmed a protective order prohibiting the defendants from disclosing information that could identify the plaintiffs or their family members. The court held that the order was a content-based prior restraint, but concluded that it survived strict scrutiny because it narrowly served the compelling national-security interest in protecting foreign nationals and sources associated with U.S. efforts abroad. The court also held that the order denying modification of the protective order was immediately appealable under 28 U.S.C. § 1292(a)(1).
Topics
Practice areas
Questions Presented
- Whether the Masts' appeal from the August 16, 2024 order was timely.
- Whether the order denying modification of the protective order was immediately appealable under 28 U.S.C. § 1292(a)(1).
- Whether the protective order was an unconstitutional content-based prior restraint on the Masts' speech.
- Whether the protective order survived strict scrutiny because it furthered a compelling national-security interest and was narrowly tailored.
- Whether the protective order was unconstitutionally vague under the Fifth Amendment Due Process Clause.
Holdings
- The Masts timely appealed the August 16, 2024 order denying modification of the protective order; the later order did not restart the time to appeal the original September 2022 order.
- An order denying modification of the protective order was immediately appealable under 28 U.S.C. § 1292(a)(1) because the protective order had the practical effect of an injunction and the appeal satisfied the serious-or-irreparable-consequence and effective-immediate-review requirements.
- The protective order was a content-based prior restraint, but it was permissible because this case fell within the exceptional category of prior restraints that may protect national security and the order survived strict scrutiny.
- The protective order was narrowly tailored and the least restrictive means of protecting the government's compelling national-security interest.
- The protective order was not unconstitutionally vague under the Fifth Amendment because it gave reasonable notice and established an intelligible prohibition against disclosure that would reveal the Does' identities.
Key quotations
“Although the order constitutes a content-based prior restraint, it fits into one of the narrow exceptions in which prior restraints can be permissible, subject to strict scrutiny.” (3)
“The government must be able to credibly guarantee the confidentiality of potential foreign intelligence assets and their families.” (26)
Factual background
Baby Doe, an Afghan infant injured and orphaned during a joint U.S.-Afghan military operation, was taken to a U.S. military hospital and later cared for by John and Jane Doe. The Does evacuated Afghanistan to the United States in August 2021 through efforts involving U.S. military personnel and were subsequently taken into custody by the Masts. The Does asserted that disclosure of their identities or evacuation circumstances would cause the Taliban to target their family members in Afghanistan because the Does could be perceived as U.S. collaborators.
Procedural history
The Does filed a federal action in the Western District of Virginia in September 2022 and obtained an ex parte protective order restricting disclosure of information that could identify them or their family members. After the Masts moved to vacate or modify the order, the district court denied the motions and held Joshua Mast in civil contempt on August 16, 2024. The Masts timely appealed, and the Fourth Circuit affirmed the protective order and the appealed order.