Constitutional – Limited gag order is not unconstitutional

Where the district court prohibited defendants and their attorneys from disclosing information identifying plaintiffs or their family members, unless the recipient executed a non-disclosure agreement, the order was not unconstitutional. Although it constitutes a content-based prior restraint, it was narrowly  tailored to—and the least restrictive means of protecting—the government’s compelling interest in ensuring the nation’s security.

Background

To protect plaintiffs and their family members living in Afghanistan, the district court issued a protective order that prohibited defendants and their lawyers from “disclosing any information that directly or indirectly identifies Plaintiffs or their family members to any person . . . unless that person first executes a non-disclosure agreement.”

Despite their professed desire to remain anonymous, the Does engaged with the media about their case against the Masts, personally naming the Masts and publicizing their side of the story. That spurred the Masts to file a series of motions to vacate or modify the September 2022 protective order, claiming the Does’ actions undermined their claimed justifications for anonymity.

The Masts argued that even if the Does are allowed to proceed under pseudonyms, the district court should rescind any restrictions on the Masts’ ability to discuss the Does’ identities outside the courtroom because such restrictions constitute content-based prior restraints that do not survive strict scrutiny and therefore violate the First Amendment.

The district court denied these motions and held Joshua Mast in civil contempt for sharing photos of Baby Doe with a non-profit foundation that was helping the Masts raise money for litigation.

Appellate jurisdiction

The Masts timely appealed the district court’s Aug. 16, 2024, order refusing to modify the earlier protective order. So the Masts may not challenge the initial protective order in this appeal. But that is not what they are doing.

Because the appeal of the Aug. 16, 2024, order was timely, the court must determine whether that interlocutory order is immediately appealable. This court has jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

The district court’s August 2024 order expressly denied the Masts’ motion to vacate or modify the protective order. So falls within § 1292(a)(1) so long as the underlying September 2022 protective order is an “injunction.” It is.

Merits

This court agrees with the Masts that the protective order constitutes a content-based prior restraint. In a prior decision, this court held that an order prohibiting “any extrajudicial statement . . . to any person or persons associated with any public communications media . . . relating to the trial, the parties or issues in th[e] case which could interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice” constituted a content-based restriction.

True, that case involved a broad gag order. But in a similar way, the protective order at issue here is a content-based restriction on speech, because it facially singles out and restricts the Masts’ ability to speak extrajudicially “to any person” if their message functions to “directly or indirectly” reveal the Does’ or their family members’ identities. As the order prohibits speech before it is expressed, it is also a prior restraint.

Despite this, the order does not violate the First Amendment. The district court concluded that the disclosure of the Does’ identities would pose a grave and imminent risk of retaliation against perceived collaborators abroad, undermining the government’s compelling interest in safeguarding the nation’s security. The record supports that conclusion. The circumstances and timing of the Does’ evacuation and resettlement would predictably (even if mistakenly) lead an outside observer as well as the Taliban to perceive the Does as American collaborators

Identification of the Does’ families abroad would expose them to immediate harm and concretely impair the credibility on which sensitive cooperation depends. Without the protective order, the Masts’ ability to freely disclose the Does’ identities would impair the government’s capacity to recruit and retain cooperating informants, which, in turn, would weaken the United States’ foreign policy and national security.

The order is not unconstitutionally vague. And it satisfies strict scrutiny, because it was narrowly  tailored to—and the least restrictive means of protecting—the government’s compelling interest in ensuring the nation’s security.

Affirmed.

Dissenting opinion

King, J., dissenting:

I am of opinion that we lack appellate jurisdiction over this interlocutory appeal. Specifically, my assessment is that the district court’s 2024 order, denying Joshua Mast, Stephanie Mast and Richard Mast’s motion to modify the court’s earlier 2022 protective order, is not a “refus[al]” by the court “to dissolve or modify [an] injunction,” because the 2022 protective order is plainly not an injunction,

Doe v. Mast, Case No. 24-1900, April 22, 2026. 4th Cir. (Richardson), from WDVA at Charlottesville (Moon). John S. Moran for Appellants. Kevin S. Elliker for Appellees. VLW 026-2-145. 28 pp.

Full-Text Opinion

VLW 026-2-145
Virginia Lawyers Weekly