Published January 13, 2015
Connecticut libraries lost an emergency Supreme Court appeal on Friday in their effort to be freed from a gag order and participate in a congressional debate over the Patriot Act (search).
Justice Ruth Bader Ginsburg (search) denied the appeal and offered an unusually detailed explanation of her decision.
She said the American Civil Liberties Union had made reasonable arguments on behalf of its client, of which little is known except that it is a member of the American Library Association based in Connecticut.
However, Ginsburg said the New York-based 2nd U.S. Circuit Court of Appeals should be given time to consider whether the Patriot Act, and its requirement of secrecy in records demands, is unconstitutional as applied to the library.
"A decision of that moment warrants cautious review," she said.
The ACLU has argued that a gag order prevents its client from taking part in debate on Capitol Hill about the Patriot Act, which was passed shortly after the 2001 terror attacks. Some key provisions expire at the end of the year.
A federal judge said that the gag order on the library had "the practical effect of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important in an ongoing national debate about the intrusion of governmental authority into individual lives."
The government's appeal of that decision is being heard at the 2nd circuit.
The Patriot Act authorized expanded surveillance of terror suspects, increased use of material witness warrants to hold suspects incommunicado and secret proceedings in immigration cases.
Much of the Supreme Court appeal, filed earlier this week, was classified and blacked out. And the Bush administration's published response consisted of blank pages.
However, Ginsburg in her seven-page opinion gave some details of the dispute.
She said that the library association member received an FBI demand for records but was told that it would be illegal to tell anyone about it. The library sued on free-speech grounds so that it could take part "in the current debate — both in Congress and among the public — regarding proposed revisions to the Patriot Act," according to Ginsburg.
Federal prosecutors have maintained that secrecy about records demands is necessary to keep from alerting suspects and jeopardizing terrorism investigations.