X has decided to petition the US Supreme Court in an ongoing legal battle between the company behind the social media platform that succeeded Twitter, and Jack Smith, special counsel in the US Department of Justice (DoJ).
We obtained a copy of the petition for you here.
The case concerns a warrant requested by Smith and granted by a district court in January 2023 to access private data on Twitter servers belonging to President Donald Trump, which he sent and received while he was still president.
The information Smith sought – as part of his investigation into Trump’s role concerning the January 6 events – included draft posts and direct messages.
And, Judge Beryl Howell of the US District Court for the District of Columbia also approved a non-disclosure order, meaning that X was banned from informing anyone, Trump included, about the warrant’s existence.
X attempted to avoid compliance with the warrant, citing First Amendment concerns, which resulted in a $350,000 fine – a punishment the District Court supported.
The company’s petition now before the Supreme Court presented the lower court’s decisions, and its own interpretations of the consequences of those decisions, which X Corp claims to set a precedent by letting the government deny a former president the chance to assert privilege over his private communications.
X also believes that this can allow the government to invade other privileges, like attorney-client or journalist-source, by means of obtaining communications data from third parties and issuing gag orders.
The petition asks the Supreme Court if an electronic communications service provider “can be compelled to produce potentially privileged user communications before adjudication of the provider’s First Amendment challenge to a nondisclosure order that prohibits it from notifying the user and before the user had notice and an opportunity to assert privilege, including executive privilege.”
The second question put before the court is if the First Amendment allows gag orders to be issued to a provider “in a highly public investigation.”
X further wants to know if this is permitted when said investigation is taking place when the government “does not (a) demonstrate that disclosure would jeopardize the investigation’s integrity; or (b) disprove the workability of a less-restrictive alternative, such as disclosure to a representative designated by a former president to assert executive privilege on his behalf.”
Although the District Court ruled that it was acceptable not to give Trump the opportunity to use executive privilege, four judges criticized the decision to approve the gag order.
One of them, Naomi Rao, said at the time that Jack Smith “obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act.”
