The First Amendment’s prohibition on prior restraints on speech is generally understood to be near-absolute. The doctrine permits prior restraints in only a handful of circumstances, and tends to require compelling evidence of their necessity. The focus of this Article is the source of an unexpected but important challenge to this doctrine: government surveillance in the digital age. Recent litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored internet communications from a service provider and to seek a gag order preventing the provider from even notifying the person of that fact. Though the government did not ultimately prevail in the litigation, the case provides a renewed opportunity to consider the tension between prior restraint doctrine and the government’s digital surveillance efforts.
This Article does that, offering three arguments. First, gag orders issued under the SCA ought to be treated like classic prior restraints that are valid in all but the rarest of cases. Second, the SCA cannot pass constitutional muster even under a more traditional strict scrutiny standard. Third, and independently, the procedure that the statute creates for obtaining a gag order is constitutionally deficient. In a concluding section, the Article considers the government’s revised stance on SCA gag orders, and suggests an alternative construction of the statute that may avoid constitutional problems.
