UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TWITTER, INC., No. 20-16174 Plaintiff-Appellant, D.C. No. 4:14-cv- v. 04480-YGR MERRICK B. GARLAND, Attorney General; UNITED STATES OPINION DEPARTMENT OF JUSTICE; CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation; FEDERAL BUREAU OF INVESTIGATION, Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted August 10, 2021 Seattle, Washington

Filed March 6, 2023

Before: Carlos T. Bea, Daniel A. Bress, and Lawrence VanDyke, Circuit Judges. 2 TWITTER, INC. V. GARLAND

Opinion by Judge Bress; Concurrence by Judge VanDyke

SUMMARY *

Civil Rights The panel affirmed the district court’s summary judgment for the United States in an action brought by Twitter alleging First Amendment violations arising from the FBI’s restrictions on Twitter’s publication of a self- described “Transparency Report.” In support of its classified national security investigations, the United States served administrative subpoenas and orders requiring Twitter to provide the government with certain information about Twitter users. In its Transparency Report, Twitter wished publicly to disclose certain information about the aggregate numbers of these governmental requests that it received between July and December 2013. The FBI determined that the number of subpoenas and orders and related information was classified, and that Twitter’s disclosure of this information would harm national security. As a result, the FBI allowed Twitter to release its Transparency Report only in a partially redacted form. The panel held that Twitter’s constitutional challenges failed to persuade. Under this circuit’s case law, strict scrutiny applied because the restriction on Twitter’s speech * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TWITTER, INC. V. GARLAND 3

was content based. The panel acknowledged that Twitter has a First Amendment interest in commenting on matters of public concern involving national security subpoenas. Nevertheless, based on a careful review of classified and unclassified information, the panel held that the government’s redactions of Twitter’s Transparency Report were narrowly tailored in support of the compelling government interest in national security. Against the backdrop of explicit illustrations set forth in the classified materials of the threats that exist and the ways in which the government can best protect its intelligence resources, the panel was able to appreciate why Twitter’s proposed disclosure would risk making foreign adversaries aware of what is being surveilled and what is not being surveilled—if anything at all. Given these concerns and this fuller backdrop, the panel was willing to accept the main conclusions outlined in the unclassified materials, which expressed generally why revealing the information Twitter wished to disclose would significantly harm the government’s national security operations by signaling to adversaries what communication channels to avoid and which to use. The panel concluded that the government’s redactions of Twitter’s Transparency Report did not violate the First Amendment. The panel next held that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allowed for sufficient procedural protections, which Twitter received here.