Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 5 of 35
2709(c)
and
35ll(b)
unconstitutional
on
their
face.
The
court ruled that the nondisclosure requirement violated the
First
Amendment because
scope or duration.
it was
Further,
not
narrowly
the court
found
tailored
the
in
judicial
review provision violated the constitutional principles of
checks and balances, as well as separation of powers.
~'
The Government appealed
affirmed
in part
and
Mukasey,
54 9 F. 3d 861
reversed
and the Second Circuit
in part.
(2d Cir.
2008) .
See
John Doe
v.
The second Circuit
invalidated two primary aspects of sections 2709 and 3511:
(1)
that FBI certification of certain risks is entitled to
a conclusive presumption (absent bad faith)
and
(2)
judicial
the
failure
review.
to
See
provide
id.
at
for
by the courts;
Government-initiated
884.
The
Circuit
Court
construed the remaining parts of Sections 2709 and 3511 to
provide certain procedural safeguards (as discussed infE!l),
and
held
that,
with
those
safeguards,
See~
sections were constitutional.
The
second
determine
reading
provided,
Circuit
whether,
of
the
in
then
the
statute
and
the
of
statutory
at 883-85.
remanded
light
those
to
the
this
Court
Circuit
procedural
to
Court's
guidance
it
the non-disclosure requirement was constitutional
as-applied to the NSL issued to Merrill. On remand,
- 5
-
in Doe
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