From Fourth Circuit Judge Julius Richardson, joined by Chief Judge Albert Diaz, in today's Doe v. Mast:
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." …
Although the order constitutes a content-based prior restraint, it fits into one of the narrow exceptions in which prior restraints can be permissible, subject to strict scrutiny. And the order satisfies strict scrutiny: It is narrowly tailored to safeguard the government's compelling interest in ensuring our Nation's security, which often depends on ensuring the safety of foreign nationals who ally themselves with United States military and diplomatic efforts abroad.
Indeed, if such foreign nationals cannot rely on the United States' assurances of their protection, our Nation's ability to cultivate essential human assets abroad would be seriously undermined. In this case, the narrow protective order is the least restrictive means to safeguard this interest. Therefore, we affirm the district court's protective order….
"The Government has a compelling interest in protecting" not only "the secrecy of information important to our national security" but also "the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. U.S. (1980). That includes protecting the identity of potential foreign collaborators…. [T]he government's ability to provide credible assurances to potential collaborators that they and their family members will not be endangered by aiding the United States is directly tied to its compelling interest in ensuring the Nation's security.
