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Case 4:14-Cv-04480-YGR Document 311 Filed 10/25/19 Page 1 of 32 Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 1 of 32 1 MAYER BROWN LLP ANDREW JOHN PINCUS (Pro Hac Vice) 2 [email protected] 1999 K Street, NW 3 Washington, DC 20006 Tel: (202) 263-3220 / Fax: (202) 263-3300 4 MAYER BROWN LLP 5 LEE H. RUBIN (SBN 141331) [email protected] 6 DONALD M. FALK (SBN 150256) [email protected] 7 SAMANTHA C. BOOTH (SBN 298852) [email protected] 8 Two Palo Alto Square, Suite 300 3000 El Camino Real 9 Palo Alto, CA 94306-2112 Tel: (650) 331-2000 / Fax: (650) 331-2060 10 Attorneys for Plaintiff Twitter, Inc. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 OAKLAND DIVISION 14 TWITTER, INC., Case No. 14-cv-4480-YGR 15 TWITTER’S NOTICE OF CROSS- 16 Plaintiff, MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT; 17 v. ALTERNATIVE MOTION FOR AN ORDER GRANTING CLEARED 18 COUNSEL ACCESS TO THE CLASSIFIED TABB DECLARATION 19 WILLIAM P. BARR, United States Attorney General, et al., Date: January 7, 2020 20 Time: 2:00 PM Courtroom 1, Fourth Floor 21 Defendants. Judge: Hon. Yvonne Gonzalez Rogers 22 23 24 25 26 27 28 TWITTER’S NOTICE OF CROSS-MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT - Case No. 14-cv-4480-YGR Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 2 of 32 1 NOTICE OF CROSS-MOTION AND CROSS-MOTION 2 PLEASE TAKE NOTICE that, on January 7, 2020 at 2:00 p.m., or as soon thereafter as 3 counsel may be heard, at 1301 Clay Street, Oakland, CA 94612, in the Oakland Courthouse, 4 Courtroom 1 – Fourth Floor, before Judge Yvonne Gonzalez Rogers, Plaintiff Twitter, Inc. 5 (“Twitter”) will, and hereby does, move for an order granting summary judgment to Twitter on 6 claims set forth in the Second Amended Complaint or, in the alternative, granting Twitter access to 7 the Classified Declaration of Jay S. Tabb, Jr. (Dkt. No. 310), submitted in support of the 8 Government’s Renewed Motion for Summary Judgment (Dkt. No. 309). This motion is based on 9 this Notice of Motion and Motion, Twitter’s Memorandum of Points and Authorities, the 10 Declaration of Lee Rubin in Support thereof, Twitter’s Separate Statement of Undisputed Facts, 11 and Twitter’s Request for Judicial Notice, the pleadings on file with the Court, and any further 12 argument or briefing that may be presented prior to the Court’s decision on the Motion. 13 14 Dated: October 25, 2019 MAYER BROWN LLP 15 /s/ Lee H. Rubin 16 LEE H. RUBIN (SBN 141331) [email protected] 17 SAMANTHA C. BOOTH (SBN 298852) [email protected] 18 Two Palo Alto Square, Suite 300 3000 El Camino Real 19 Palo Alto, CA 94306-2112 Telephone: (650) 331-2000 20 Facsimile: (650) 331-2060 21 Attorneys for Plaintiff Twitter, Inc. 22 23 24 25 26 27 28 1 TWITTER’S NOTICE OF CROSS-MOTION & CROSS-MOTION FOR SUMMARY JUDGMENT Case No. 14-cv-4480-YGR Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 3 of 32 MAYER BROWN LLP 1 ANDREW JOHN PINCUS (Pro Hac Vice) [email protected] 2 1999 K Street, NW Washington, DC 20006 3 Tel: (202) 263-3220 / Fax: (202) 263-3300 4 MAYER BROWN LLP LEE H. RUBIN (SBN 141331) 5 [email protected] DONALD M. FALK (SBN 150256) 6 [email protected] SAMANTHA C. BOOTH (SBN 298852) 7 [email protected] Two Palo Alto Square, Suite 300 8 3000 El Camino Real Palo Alto, CA 94306-2112 9 Tel: (650) 331-2000 / Fax: (650) 331-2060 10 Attorneys for Plaintiff Twitter, Inc. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 OAKLAND DIVISION 14 TWITTER, INC., Case No. 14-cv-4480-YGR 15 TWITTER’S MEMORANDUM OF Plaintiff, POINTS AND AUTHORITIES IN 16 OPPOSITION TO DEFENDANTS’ v. MOTION FOR SUMMARY JUDGMENT, 17 AND IN SUPPORT OF (1) ITS CROSS- MOTION FOR SUMMARY JUDGMENT 18 & (2) ITS RENEWED MOTION FOR WILLIAM P. BARR, United States Attorney ACCESS TO CLASSIFIED MATERIALS 19 General, et al., Date: January 7, 2020 20 Time: 2:00 p.m. 21 Defendants. Courtroom 1, Fourth Floor 22 Judge: Hon. Yvonne Gonzalez Rogers 23 24 25 26 27 28 TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION - Case No. 14-cv-4480-YGR Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 4 of 32 1 TABLE OF CONTENTS 2 Page 3 TABLE OF AUTHORITIES .......................................................................................................... ii 4 MEMORANDUM OF POINTS & AUTHORITIES .......................................................................1 STATEMENT OF ISSUES TO BE DECIDED ..............................................................................1 5 INTRODUCTION ...........................................................................................................................1 6 FACTUAL AND PROCEDURAL HISTORY ...............................................................................3 7 ARGUMENT ...................................................................................................................................5 8 A. Twitter Is Entitled to Summary Judgment (and the Government’s Motion Should Be Denied) Because the Government Has Not Satisfied Strict Scrutiny. ..........................5 9 1. As a Content-Based Prior Restraint, the Government’s Censorship Is 10 Subject to the Pentagon Papers Strict Scrutiny Standard. .........................................5 2. The Government Cannot Satisfy Strict Scrutiny. .......................................................7 11 B. Independently, Twitter Is Entitled to Summary Judgment Because the 12 Government’s Prior Restraint Lacked All of Freedman’s Procedural Safeguards. .........14 13 1. Twitter Adequately Pled that the Government’s Censorship of Its 2014 Transparency Report Was an Unconstitutional Prior Restraint. ...............................15 14 2. Freedman Applies to the Executive’s Discretionary Classification of Speech 15 about the Receipt of National Security Process. .......................................................16 a. The Ninth Circuit’s Dictum Is Neither Controlling Nor Consistent with 16 Supreme Court Authority. ...................................................................................17 17 b. The FISA Process Does Not Save the Government’s Prior Restraint on Aggregate Reporting from Constitutional Infirmity. ..........................................20 18 3. Twitter Is Entitled to an Injunction Against Enforcement of the 19 Government’s Procedurally Unconstitutional Censorship Authority. ......................22 20 C. Independently, the Government’s Motion for Summary Judgment Should Be Denied Under Federal Rule of Civil Procedure 56(d). .....................................................23 21 CONCLUSION ..............................................................................................................................25 22 23 24 25 26 27 28 i TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION - Case No. 14-cv-4480-YGR Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 5 of 32 1 TABLE OF AUTHORITIES 2 Page(s) Cases 3 4 Al-Haramain Islamic Found. Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) ...................................................................................................6 5 Am. Timber & Trading Co. v. First Nat. Bank of Or., 6 690 F.2d 781 (9th Cir. 1982) ...................................................................................................15 7 Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc) ...................................................................................5 8 Butterworth v. Smith, 9 494 U.S. 624 (1990) .....................................................................................................18, 19, 20 10 Crull v. GEM Ins. Co., 11 58 F.3d 1386 (9th Cir. 1995) ...................................................................................................16 12 Doe v. Gonzales, 386 F. Supp. 2d 66 (D. Conn. 2005) ..........................................................................................7 13 Doe v. Mukasey, 14 549 F.3d 861 (2d. Cir. 2008)........................................................................................19, 20, 22 15 Forsyth Cty. v. Nationalist Movement, 16 505 U.S. 123 (1992) ...................................................................................................................7 17 Freedman v. Maryland, 380 U.S. 51 (1965) ........................................................................................................... passim 18 Garcia v. Google, Inc., 19 786 F.3d 727 (9th Cir. 2015) .....................................................................................................7 20 Microsoft Corp. v. U.S. Dep’t of Justice, 21 233 F. Supp. 3d 887 (W.D. Wash. 2017) .................................................................................14 22 N.Y. Times Co. v. United States, 403 U.S. 713 (1971) ......................................................................................................... passim 23 In re Nat’l Sec. Letter, 24 863 F.3d 1110 (9th Cir. 2017) ......................................................................................... passim 25 In re Nat’l Sec. Letter, 26 930 F. Supp. 2d 1064 (N.D. Cal. 2013) ...................................................................................23 27 Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) ...................................................................................................................6 28 ii TWITTER’S MEM P&A IN OPPOSITION TO DEFENDANTS’ MSJ & ISO TWITTER’S CROSS-MOTION - Case No. 14-cv-4480-YG Case 4:14-cv-04480-YGR Document 311 Filed 10/25/19 Page 6 of 32 1 TABLE OF AUTHORITIES 2 (continued)
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