Key Points

  • The Fourth Circuit held that a protective order barring disclosure of Afghan plaintiffs' identities is a content-based prior restraint under the First Amendment but satisfies strict scrutiny because it is narrowly tailored to the compelling national-security interest in protecting perceived foreign collaborators.
  • The decision distinguishes the order from discovery-related protective orders subject to the deferential 'good cause' standard of Seattle Times, applying strict scrutiny because defendants obtained the plaintiffs' identities independently of litigation.
  • The panel rejected the district court's reliance on James v. Jacobson's pseudonymity balancing test, holding that separate First Amendment analysis is required before restricting defendants' speech about information known prior to litigation.
  • Judge King dissented on jurisdictional grounds, arguing the protective order is not an appealable injunction under § 1292(a)(1) and that the court lacked interlocutory jurisdiction.

The Fourth Circuit on April 22 affirmed a protective order that prohibits defendants in a custody dispute from disclosing the identities of Afghan plaintiffs, holding that the content-based prior restraint satisfies strict scrutiny on national-security grounds. The published opinion, authored by Judge Richardson and joined by Chief Judge Diaz, marks the first circuit-level application of strict scrutiny to a protective order restricting speech about information obtained independently of discovery.

The order, issued by the district court in September 2022, bars defendants Joshua Mast, his wife Stephanie, and brother Richard from 'disclosing any information that directly or indirectly identifies Plaintiffs and their family members to any person' unless that person first executes a non-disclosure agreement enforceable through contempt. The panel affirmed the district court's August 2024 denial of the Masts' motion to vacate or modify that order.

Writing for the majority, Judge Richardson acknowledged that the protective order 'constitutes a content-based prior restraint' because it 'facially singles out and restricts the Masts’ ability to speak extrajudicially . . . if their message functions to “directly or indirectly” reveal the Does’ or their family members’ identities.' The court further held that the order is a classic prior restraint because it restricts speech about information the Masts knew before litigation, distinguishing it from discovery-related protective orders subject to the more deferential standard of Seattle Times Co. v. Rhinehart.

Despite the 'heavy presumption against its constitutional validity,' the panel found the order fits within the narrow exception for restraints that threaten national security first identified in Near v. Minnesota. 'It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation,' the majority wrote, quoting Haig v. Agee. The panel reasoned that protecting 'those who are perceived as collaborators, regardless of whether they are actual collaborators' is essential to the government's ability to recruit and retain foreign intelligence assets.

The majority emphasized that the district court's factual findings—that the Does were evacuated from Afghanistan as part of Operation Allies Refuge alongside genuine U.S. cooperators, and that disclosure would pose 'a grave and imminent risk of retaliation' by the Taliban—established a 'compelling interest in safeguarding the Nation’s security.' The panel noted that even 'the appearance of confidentiality is critical' and that the government 'must be able to credibly guarantee the confidentiality of potential foreign intelligence assets and their families.'

Applying strict scrutiny, the court concluded the order is 'sufficiently narrowly tailored' because it is limited to the Masts as litigation participants, prohibits only disclosure of the Does' identities and information that would reasonably enable identification, and permits disclosure with a non-disclosure agreement. 'The protective order does not purport to control the Masts’ ability to speak generally about the litigation, about the Does’ claims, or about their own defenses,' the majority wrote, distinguishing the order from the broad gag order struck down in In re Murphy-Brown, LLC.

The majority also rejected the Masts' argument that the order is unconstitutionally vague, finding that the prohibition against 'indirectly' identifying the plaintiffs provides sufficient notice. The panel cited precedent including United States v. Ehsan, which upheld an Executive Order banning 'direct and indirect' exportation to Iran. 'The order is sufficiently clear to pass constitutional muster,' the court wrote, noting that the Masts themselves demonstrated understanding of the prohibition when Joshua Mast acknowledged he could not share Baby Doe's photo because 'I was required to do that by the protective order.'

Judge King dissented, arguing that the court lacked appellate jurisdiction because the 2022 protective order is not an injunction subject to interlocutory appeal under 28 U.S.C. § 1292(a)(1). Characterizing the order as one 'relat[ing] only to the conduct or progress of litigation,' Judge King wrote that the order 'could be adequately reviewed by our Court in the posture of a § 1291 final decision appeal.' He declined to reach the merits, stating that 'my opinion would therefore be purely advisory.'

The panel's jurisdictional analysis held that the August 2024 order denying modification is appealable because the underlying protective order has the practical effect of an injunction: it 'reaches well beyond this courtroom, prohibiting the Masts from disclosing information about the Does to any person, in any forum.' The court emphasized that the order imposes serious, potentially irreparable First Amendment harms that can only be effectually challenged through immediate appeal.

The case arises from a complex custody dispute over Baby Doe, an Afghan infant injured and orphaned during a 2019 joint U.S.-Afghan military operation. Joshua Mast, then a Marine Corps Judge Advocate, obtained custody through Virginia state adoption proceedings. The Does, who care for Baby Doe, filed a federal civil-rights suit in 2022 and obtained the protective order to prevent disclosure of their identities, arguing it would endanger family members still in Afghanistan.

The Fourth Circuit's opinion provides circuit authority for litigators navigating the tension between pseudonym orders and the First Amendment, making clear that protective orders restricting speech about information obtained independently of discovery must satisfy strict scrutiny as content-based prior restraints. The court expressly rejected the district court's reliance on the James v. Jacobson balancing test for pseudonymity as a justification for the speech restriction, holding that 'James’s balancing test cannot justify an order restricting the Masts’ ability to speak about information they knew prior to, and independent of, coercion-backed discovery.'