In re: Sealed Case (AMENDED REDACTED OPINION) ( 2023 )

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FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 19, 2023 Decided July 18, 2023
Reissued August 9, 2023
No. 23-5044
lNRE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-sc-00031)
Ari Holtzblatt argued the cause for appellant. With him on
the briefs was Whitney Russell.
James 1 Pearce, Assistant Special Counsel, U.S.
Department of Justice, argued the cause for appellee. With him
on the brief were J.P. Cooney, Deputy Special Counsel,
Raymond N Hulser, Counselor to the Special Counsel, and
Cecil W. VanDevender and John M Pellettieri, Assistant
Special Counsels.
Before: PILLARD, CHILDS and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN.
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PAN, Circuit Judge:* The district court issued a search
warrant in a criminal case, directing appellant Twitter, Inc.
("Twitter") to produce information to the government related
to the Twitter account "@realDonaldTrump." 1 The search
warrant was served along with a nondisclosure order that
prohibited Twitter from notifying anyone about the existence
or contents of the warrant. Twitter initially delayed production
of the materials required by the search warrant while it
unsuccessfully litigated objections to the nondisclosure order.
Although Twitter ultimately complied with the warrant, the
company did not fully produce the requested information until
three days after a court-ordered deadline. The district court
thus held Twitter in contempt and imposed a $350,000 sanction
for its delay.
In this appeal, Twitter argues that the nondisclosure order
violated the First Amendment and the Stored Communications
Act; that the district court should have stayed its enforcement
of the search warrant until after Twitter's objections to the
nondisclosure order were resolved; and that the district court
abused its discretion by holding Twitter in contempt and
imposing the sanction. We affirm the district court in all
respects.
NOTE: Portions of this opinion contain Sealed Information,
which has been redacted.
During the pendency of this appeal, Twitter, Inc. merged into a
privately held company named X Corp. Opening Br. iii. For ease of
reference, we refer to appellant as "Twitter" throughout this opinion.
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I.
A.
The Stored Communications Act (the "Act"), 18 U.S.C.
§ 2701 et seq., establishes procedures for law enforcement
officers to obtain evidence from electronic service providers in
criminal cases. The Act permits the government to obtain a
search warrant or court order that directs the service provider
to tum over "the contents of [a subscriber's] wire or electronic
communication" or "a record or other information pertaining
to a subscriber." 18 U.S.C. § 2703(b)(l), (c)(l). A service
provider that receives an order to produce subscriber data can
move to quash or modify the order by showing that the
information requested is "unusually voluminous" or that
compliance "would cause an undue burden." Id. § 2703(d).
Service providers that give information to the government
under the procedures prescribed by the Act are immunized
from liability. Id. § 2703(e).
The Act allows the government to seek a nondisclosure
order, which directs service providers "not to notify any other
person" of a warrant or order's existence "for such period as
the court deems appropriate." Id. § 2705(b). A court "shall
enter" such a nondisclosure order if "there is reason to believe
that notification of the existence of the warrant" or order will
result in one of five enumerated harms: "(l) endangering the
life or physical safety of an individual; (2) flight from
prosecution; (3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or (5) otherwise
seriously jeopardizing an investigation or unduly delaying a
trial." Id.
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B.
Since November 18, 2022, Special Counsel Jack Smith has
overseen an ongoing criminal investigation into potential
interference with the peaceful transfer of power following the
2020 presidential election. The investigation encompasses
events related to the riot that took place on January 6, 2021, at
the United States Capitol. See In re NY Times Co., No. 1:22-
mc-100 (BAH), 2023 WL 2185826, at *4 (D.D.C. Feb. 23,
2023); U.S. DEP'T OF JUSTICE, APPOINTMENT OF A SPECIAL
COUNSEL (Nov. 18, 2022), https://perma.cc/34GU-BESD.
"Despite the intense media attention" surrounding that
investigation, it "proceeds behind doors that remain closed to
the public." In re Press Application for Access to Jud. Recs.
Ancillary to Certain Grand Jury Proc. Concerning Former
Vice President Pence, No. 1:23-mc-35 (JEB), 2023 WL
3931384, at *1 (D.D.C. June 9, 2023). The instant case arises
from the Special Counsel's investigation.
On January 17, 2023, the government applied for, and
obtained, a search warrant that directed Twitter to produce data
and records related to the "@realDonaldTrump" Twitter
account. At the same time, the government applied for, and
obtained, a nondisclosure order, which prohibited Twitter from
disclosing the existence or contents of the search warrant to any
person. Based on ex parte affidavits, the district court found
probable cause to search the Twitter account for evidence of
criminal offenses. Moreover, the district court found that there
were "reasonable grounds to believe" that disclosing the
warrant to former President Trump "would seriously
jeopardize the ongoing investigation" by giving him "an
opportunity to destroy evidence, change patterns of behavior,
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[or] notify confederates." I.A. l; see 18 U.S.C. § 2705(b). 2
The warrant required Twitter to tum over all requested
information by January 27, 2023. The nondisclosure order was
to remain in effect for 180 days after its issuance.
The government faced difficulties when it first attempted
to serve Twitter with the warrant and nondisclosure order. On
January 17, 2023, the government tried to submit the papers
through Twitter's website for legal requests, only to find out
that the website was inoperative. Two days later, on January
19, 2023, the government successfully served Twitter through
that website. On January 25, 2023, however, when the
government contacted Twitter' s counsel to check on the status
of Twitter' s compliance, Twitter' s counsel stated that she "had
not heard anything about [the] [w]arrant." I.A. 50. She
informed the government that an on-time production "would
be a very tight turnaround," but she confirmed that the
account's available data was preserved. Id. at 50-51.
On February 1, 2023 - four days after the compliance
deadline - Twitter objected to producing any of the account
information. Although the company did not question the
validity of the search warrant, it asserted that the nondisclosure
order was facially invalid under the First Amendment. Twitter
informed the government that it would not comply with the
warrant until the district court assessed the legality of the
nondisclosure order.
2
The district court also found reason to believe that the former
President would "flee from prosecution." J.A. 1. The government
later acknowledged, however, that it had "errantly included flight
from prosecution as a predicate" in its application. J.A. 281 n.1. The
district court did not rely on risk of flight in its ultimate analysis.
See J.A. 195.
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On February 2, 2023, Twitter filed a motion to vacate or
modify the nondisclosure order; meanwhile, the government
moved for an order to show cause as to why Twitter should not
be held in contempt of court for its noncompliance with the
warrant.
In its motion challenging the nondisclosure order, Twitter
argued that the order violated the company's First Amendment
right to communicate with its subscriber, former President
Trump. The company asserted that compliance with the
warrant before resolution of the motion to vacate or modify the
nondisclosure order would preclude the former President from
asserting executive privilege to shield communications made
using his Twitter account. Although Twitter acknowledged
that it "may not have standing to raise [executive privilege]
issues," and took "no position on the applicability of executive
privilege," the company asserted that prompt compliance with
the warrant would nevertheless "impede its ability to effect its
First Amendment rights to provide meaningful notice to its
user." J.A. 15, 17-18. Citing Freedman v. Maryland, 380 U.S.
51 (1965), and Thomas v. Chicago Park District, 534 U.S. 316(2002), Twitter argued that the district court was obligated to
maintain the status quo and "stay any production obligation"
while the parties litigated the constitutionality of the
nondisclosure order. J.A. 18.
The government raised two counterarguments in its
motion for an order to show cause. First, it asserted that the
warrant and nondisclosure order "are different court orders,
imposing different obligations." J.A. 24. Thus, it reasoned,
Twitter' s compliance with the warrant should not depend on
how the court resolved any issues related to the nondisclosure
order. Second, the government insisted that neither the warrant
nor the Act "provide for intervention by a third party [such as
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Twitter] before compliance with" a warrant. Id. Accordingly,
Twitter's obligation to promptly produce account information
in response to the warrant was clear, and the government
requested a hearing for Twitter to show cause why it should not
be held in contempt. Id.The district court set distinct schedules for resolving each
of the two outstanding motions. The district court set a hearing
on February 7, 2023, on the government's show-cause motion;
but it put Twitter' s motion challenging the nondisclosure order
on a slower track, ordering the government to file a response to
that motion by February 16, 2023, with Twitter's reply due on
February 23, 2023.
C.
At the February 7 hearing, the district court heard
arguments from both parties about Twitter's noncompliance
with the search warrant. Although Twitter requested that the
court stay its enforcement of the warrant until after it
adjudicated Twitter's motion to vacate or modify the
nondisclosure order, the court denied that request and found
Twitter in contempt of court.
In an oral ruling, the court rejected Twitter's argument that
the First Amendment required adjudication of the
nondisclosure order before enforcement of the warrant.
Adopting Twitter' s requested approach would "invite
intervention by Twitter - let alone every other electronic
communications provider - to delay execution of any
[warrant] ... issued under the [Act]" while it litigated
challenges based on "slivers of knowledge" of an
investigation's scope. J.A. 212. Because "any challenge to a
[nondisclosure order] is separate from a challenge to a search
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warrant" and additional delays would "increase[] the risk that
evidence will be lost or destroyed, heighten[] the chance the
targets will learn of the investigation, and jeopardize[] the
government's ability to bring any prosecution in a timely
fashion," the court refused to stay its enforcement of the
warrant. Id. at 213 (citing Google LLC v. United States,
443 F. Supp. 3d 447,455 (S.D.N.Y. 2020)).
The district court further determined that "the government
ha[d] satisfied ... [the] requirements for finding [Twitter in]
contempt" for failing to comply with the warrant. J.A. 211. It
found that the search warrant "was an unambiguous court order
requiring Twitter to comply with production of the specified
records ... by January [27], 2023," and that Twitter violated
the court's order by failing to tum over the records. Id. at
211-12. Nonetheless, the district court gave Twitter an
opportunity to purge its contempt by producing the account
information. When the court asked Twitter' s counsel whether
the company could produce the required materials by 5 :00 p.m.
that evening, counsel answered: "I believe we are prepared to
do that. Yes, Your Honor." Id. at 210. The court also asked
the government what sanctions it would request if Twitter
failed to comply. The government suggested sanctions that
would accrue at a geometric rate: $50,000 per day, to double
every day that Twitter did not comply. The court adopted that
suggestion, noting that Twitter was sold for over $40 billion
and that its owner's net worth was over $180 billion. Twitter
did not object to the sanctions formula. Accordingly, the
district court ordered Twitter to produce the records specified
by the warrant by 5:00 p.m. on February 7, 2023. If Twitter
did not purge its contempt by that time, the district court
ordered "escalating daily fines" that were "designed to ensure
Twitter complies with the search warrant." Id. at 213-14.
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Twitter missed the 5 :00 p.m. deadline. Although Twitter
timely produced some records, its production was incomplete.
After a follow-up call with the government on the next day,
Twitter produced supplemental infonnation in the early hours
of February 9, 2023. The district court held a second hearing
on February 9, 2023, during which the court meticulously
reviewed the requirements of the warrant and resolved any
remaining disputes. At that hearing, Twitter made several new
representations related to its production of responsive
materials. See, e.g., I.A. 242 ("[Government Counsel]: This is
the first time I have heard a complaint about a date limitation
on IH."); id. at 254 ("This is the first time we are hearing about
another preservation between January 3rd and January 9."); id.
at 254-55 ("I have never heard of 'fleets' in part of any
discussion that we have had .... It still will be relevant, it still
will be responsive."). Twitter completed its production at 8:06
p.m. on February 9, 2023.
The parties subsequently submitted papers regarding the
applicability of sanctions. The government suggested that
Twitter's three days of noncompliance after the deadline had
passed merited a $350,000 sanction, under the sanctions
formula that the court previously had adopted and announced.
See Gov't Notice Regarding Accrued Sanction 2, ECF No. 19.
Twitter denied that any penalty was "appropriate," arguing that
it had acted in good faith and had substantially complied with
the February 7 deadline. I.A. 274. Twitter further argued that
an incremental $200,000 sanction for the last day of
noncompliance was unjustified, in light of "new search terms
provided by the government" shortly before 4:00 p.m. on
February 9 and Twitter's production of the required
information "just hours" after the February 9 hearing. Id. at
277-78. Notably, Twitter still did not object to the sanctions
fonnula.
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On March 3, 2023, the district court issued an opinion and
order denying Twitter' s motion to vacate or modify the
nondisclosure order, finding Twitter in civil contempt, and
imposing a $350,000 contempt sanction. The district court
assumed without deciding that Twitter's First Amendment
challenge to the nondisclosure order should be analyzed under
the exacting standard of strict scrutiny. The district court
determined that the order, which prohibited speech about a
particular warrant for a 180-day period, was a narrowly tailored
means to protect the compelling interest of safeguarding the
integrity and secrecy of an ongoing criminal investigation. The
court further held Twitter in contempt for its three days of
noncompliance with the production order and rejected the good
faith and substantial compliance defense that Twitter had
asserted. 3
Twitter filed a timely notice of appeal. It moved both the
district court and this Court to stay the $350,000 sanctions
payment pending appeal. Both courts denied Twitter' s
motions. Twitter subsequently paid the $350,000 sanction into
an escrow account maintained by the district court clerk's
office.
On June 20, 2023, during the pendency of this appeal, the
government filed an ex parte motion in the district court,
3 The district court ordered Twitter to comply with the warrant by
5:00 p.m. on February 7, 2023. J.A. 216. Twitter did not complete
its production of account infonnation until 8:06 p.m. on February 9,
2023. J.A. 276. Thus, Twitter delayed its production for a 51-hour
period. The district court's order increased the sanction amount
"every day," so it reasoned that additional fines "accrued as soon as
12:00 [a.m.]" at the beginning of each new day. J.A. 389. The
51-hour period, therefore, constituted three days of noncompliance.
See id.11
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requesting a modification and extension of the nondisclosure
order. The government proposed to permit Twitter to notify
the former President of the existence and contents of the
warrant. The only limitation on the disclosure would be to
withhold the identity of the case agent assigned to the
investigation. Gov't Mot. to Modify & Extend 1, ECF No. 45.
The government changed its position due to the additional
information "about investigations of the former President [that
became] publicly available" after the nondisclosure order was
issued and after the district court denied Twitter' s motion to
vacate or modify the order. Gov't Mot. to Modify & Extend 6,
ECF No. 45. The government also requested that the amended
nondisclosure order remain in effect for an additional 180 days.
The district court granted the government's motion on the same
day it was filed. See Order, ECF No. 46.
II.
Twitter claims that the district court: (1) imposed an
unlawful nondisclosure order that violated the First
Amendment; (2) erred by refusing to stay its enforcement of
the warrant while the parties litigated Twitter's constitutional
challenge to the nondisclosure order, thereby failing to
implement procedural safeguards required by Freedman;
(3) erred in its application of§ 2705(6) of the Act because,
Twitter asserts, there was no reason to believe disclosure would
harm the investigation; and (4) abused its discretion by finding
Twitter in contempt, discounting Twitter' s good faith and
substantial compliance, and levying an unduly coercive
sanction.
We have jurisdiction to review the final contempt
adjudication under 28 U.S.C. § 1291. See Salazar ex rel.
Salazar v. District of Columbia, 602 F.3d 431, 436 (D.C. Cir.
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2010). We also have jurisdiction to review the district court's
order denying Twitter' s motion to vacate or modify the
nondisclosure order under the collateral-order doctrine. The
collateral-order doctrine permits appeals from "decisions
[1] that are conclusive, [2] that resolve important questions
separate from the merits, and [3] that are effectively
unreviewable on appeal from the final judgment in the
underlying action." Oglala Sioux Tribe v. US. Nuclear Regul.
Comm 'n, 896 F.3d 520, 528 (D.C. Cir. 2018) (alterations in
original) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 106 (2009)). The district court's order conclusively
rejected Twitter' s challenges to the nondisclosure order. It
resolved important questions unrelated to the underlying
investigation, including whether the nondisclosure order
survived strict scrutiny. If we declined to exercise jurisdiction
over the instant appeal, the district court's order would be
effectively unreviewable because it concerns Twitter's rights,
not the rights of any individual targeted by the grand jury: The
issues raised by Twitter cannot be reviewed in an appeal of the
final judgment in the underlying criminal case. See In re
Application of Subpoena 2018R00776, 947 F.3d 148, 154 (3d
Cir. 2020) (In re Subpoena). With all three elements of the
collateral-order doctrine met, we are satisfied that we have
appellate jurisdiction.
But each of Twitter's arguments implicates an additional
jurisdictional or procedural issue. The government argues that
Twitter's claims based on the First Amendment and Freedman
are moot; and that Twitter forfeited its statutory argument by
first raising it in a reply brief in the district court. Furthermore,
Twitter' s payment of the contempt sanction raises the question
of whether its appeal of the sanction is moot. We conclude that
we may review all of Twitter's claims except for the statutory
argument, which was forfeited.
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A.
Article III of the Constitution grants the federal courts
power to resolve "actual, ongoing controversies," meaning that
"we lose jurisdiction if a pending case becomes moot."
Trump v. Mazars USA, LLP, 39 F.4th 774, 785 (D.C. Cir. 2022)
(quoting Planned Parenthood of Wis., Inc. v. Azar, 942 F.3d
512,516 (D.C. Cir. 2019)). Accordingly, we may not decide a
case if "events have so transpired that the decision will neither
presently affect the parties' rights nor have a more-than-
speculative chance of affecting them in the future." J T. v.
District of Columbia, 983 F .3d 516, 522 (D.C. Cir. 2020)
(quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir.
1990) (en bane)).
Nevertheless, "[a] court can decide an otherwise-moot
matter if the dispute is capable of repetition yet evading
review." Mazars USA, 39 F.4th at 786. This exception applies
if: (1) "the challenged action [i]s ... too short to be fully
litigated prior to its cessation or expiration"; and (2) "there [i]s
a reasonable expectation that the same complaining party
would be subjected to the same action again." Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam). The alleged
wrong "must be defined in terms of the precise controversy it
spawns." People for Ethical Treatment of Animals, Inc. v.
Gittens, 396 F.3d 416, 422 (D.C. Cir. 2005).
1.
The government asserts that Twitter' s First Amendment
argument is moot because the nondisclosure order has been
modified to remove the provision that Twitter challenges -
i.e., the prohibition against Twitter communicating about the
warrant with the account holder. Gov't Rule 280) Letter (June
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21, 2023). In response, Twitter argues that the dispute over the
originally issued nondisclosure order is capable of repetition
yet evading review. Twitter Rule 28G) Letter (June 22, 2023).
We think Twitter has the better of this argument.
When considering whether a dispute is capable of
repetition, we focus not on "the precise historical facts that
spawned the [litigant's] claims," but "whether the legal wrong
complained of ... is reasonably likely to recur." Del Monte
Fresh Produce Co. v. United States, 570 F.3d 316, 324 (D.C.
Cir. 2009). We have emphasized that this test should not "be
applied with excessive 'stringency,"' Ralls Corp. v. Comm. on
Foreign Inv. in US., 758 F.3d 296, 324 (D.C. Cir. 2014)
(quoting Honig v. Doe, 484 U.S. 305, 318 n.6 (1988)), as it is
a "functional approach," Del Monte, 570 F.3d at 323.
The legal issue Twitter raises is whether its First
Amendment rights are violated by a § 2705(6) nondisclosure
order that prohibits Twitter from revealing the existence or
contents of a search warrant to its customer, who is a suspect
in a criminal investigation. That dispute is reasonably likely to
recur. "In estimating the likelihood of an event's occurring in
the future, a natural starting point is how often it has occurred
in the past." Clarke, 915 F.2d at 704. Twitter previously has
received, and challenged, nondisclosure orders attached to
subpoenas, warrants, and other requests for user information.
See I.A. 217-22 (listing challenges); cf Twitter, Inc. v.
Garland, 61 F.4th 686, 692-94 (9th Cir. 2023). And Twitter
avers that it will continue to resist complying with
nondisclosure orders that it believes are "facially invalid."
Twitter Rule 28(j) Letter 2 (June 22, 2023). We think it is
reasonably likely that the government will seek subscriber
information from Twitter in future criminal cases, and that the
government therefore will serve more search warrants and
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nondisclosure orders on Twitter. At some point, Twitter "will
again be confronted by an order of this sort" raising a similar
First Amendment issue. In re Reps. Comm. for Freedom of the
Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985).
We are unpersuaded by the government's narrow framing
of Twitter's claims. The government asserts that it will not
seek additional information about the former President's
Twitter account, and that Twitter' s expressed interest in
communicating with the former President so that he may assert
executive privilege is case-specific. See Gov't Rule 28G)
Letter (June 21, 2023); cf Gov'tBr. 39 n.11. But, as the district
court noted, "Twitter' s interests here are purely about its right
to speak to the [account user]," J.A. 379, and such interests do
not depend on the user's identity. Twitter has claimed that it
has a First Amendment right to meaningfully communicate
with its users, and other account holders may hold other
privileges, such as the attorney-client privilege, that could be
asserted in response to a warrant issued under the Act. Twitter
therefore could again claim that a nondisclosure order
"impede[ s] its ability to effect its First Amendment rights to
provide meaningful notice to its user." J.A. 17-18. We
therefore view Twitter's claim as capable ofrepetition.
We have no trouble holding that a challenge to a
nondisclosure order also "evades review." Such an order
typically has a limited duration - the instant nondisclosure
order was to remain in effect for 180 days and was extended on
June 20, 2023 for a period of 180 days. See J.A. 2; Order, ECF
No. 46; see also DEPUTY ATT'Y GEN. ROD J. ROSENSTEIN, U.S.
DEP'T OF JUSTICE, POLICY REGARDING APPLICATIONS FOR
PROTECTIVE ORDERS PURSUANT TO 18 U.S.C. § 2705(B), at 2
(Oct. 19, 2017), https://perma.cc/MN34-QMNW (advising a
one-year maximum for nondisclosure orders). As a "rule of
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thumb," we have considered an order of less than two years'
duration "too short" to be fully litigated before it expires. See
Ralls Corp., 758 F.3d at 321 (applying two-year rule of thumb
in the context of agency actions of short duration); accord
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170
(2016). Nondisclosure orders under§ 2705(b) fall comfortably
within that timeframe. Ralls Corp., 758 F.3d at 321; see also
Del Monte, 570 F.3d at 322 ("[T]he short duration [must be]
typical of the challenged action.").
Moreover, we have reasoned in an analogous context that
"contempt issues" that arise during a grand jury investigation
"could not or probably would not be able to be adjudicated
while fully live." In re Sealed Case, 877 F.2d 976, 981 n.6
(D.C. Cir. 1989) (quoting In re Grand Jury Proc., 785 F.2d
629, 631 (8th Cir. 1986)). After all, "a grand jury's term and
its investigations are by their very nature of limited and
relatively short duration." Id. at 981 n.6; accord In re Grand
Jury Proc., 971 F.3d 40, 53 (2d Cir. 2020) ("[T]he relatively
short duration of the grand jury has made it practically
impossible to fully litigate . . . challenges to [a grand jury]
subpoena."). The instant nondisclosure order was issued by the
district court in connection with a criminal investigation by a
grand jury, and the order's date of expiration necessarily bears
some relationship to the limited duration of the grand jury's
work. We find that reasoning relevant here and conclude that
the originally issued nondisclosure order evades review. 4
4 Twitter has not argued that the district court did not have
jurisdiction to modify the nondisclosure order. But "[a]n appeal,
including an interlocutory appeal, 'divests the district court of its
control over those aspects of the case involved in the appeal."'
Coinbase, Inc. v. Bielski, No. 22-105, slip op. at 3 (U.S. June 23,
2023) (quoting Griggs v. Provident Consumer Discount Co., 459
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2.
Faced with competing motions from the parties, the district
court chose to grant the government's motion to enforce the
warrant before ruling on Twitter's motion to amend or vacate
the nondisclosure order. Twitter argues that the district court
should have decided its motion first. The government argues
with some force that Twitter's argument about the timing of the
district court's rulings became moot once Twitter produced the
information that was the subject of the warrant. After all, we
cannot now require the district court to consider Twitter' s First
Amendment claims before enforcing a warrant that has already
been enforced and complied with. Cf United States v. Griffin,
816 F.2d 1, 7 n.4 (D.C. Cir. 1987); In re Grand Jury Subpoena
Duces Tecum, 91-02922, 955 F.2d 670, 672 (11th Cir. 1992).
Although we agree that this dispute is moot, we also
believe that it is capable of repetition yet evading review. Time
is of the essence when the government seeks evidence needed
U.S. 56, 58 (1982)); accord Deering Milliken, Inc. v. FTC, 647 F.2d
1124, 1128 (D.C. Cir. 1978). This rule prevents the trial court and
the appellate court from "step[ping] on each other's toes," for "[i]t
would interfere with the appellate court's review of an order if the
district court modified that order mid-appeal." Coinbase, slip op. at
8 (Jackson, J., dissenting). In the instant case, the district court
modified the nondisclosure order mid-appeal, and it appears that the
district court may not have had jurisdiction to make that
modification. Nevertheless, any such error does not affect our
review of the nondisclosure order as it existed when Twitter filed the
instant appeal. One purpose of the rule that may have divested the
district court of jurisdiction is to allow us to proceed with our
consideration of the appeal without interference; and our
determination that Twitter's First Amendment claim is capable of
repetition yet evading review gets us to the same place.
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in a criminal case, so there may be little opportunity to fully
litigate a substantial constitutional claim while holding in
abeyance the execution of a search warrant. And, despite the
government's promise that it "does not intend to seek another
search warrant and nondisclosure order for the former
President's Twitter account," Gov't Br. 39 n.11, Twitter can
reasonably expect to receive (and be ordered to comply with)
more search warrants for other accounts, accompanied by
nondisclosure orders that could implicate the account holders'
privileges and Twitter's asserted First Amendment rights.
B.
We decline to consider Twitter' s argument that the district
court misapplied the Act because that claim was forfeited.
Twitter contends that the district court erroneously found that
disclosure of the warrant's existence or contents would result
in one of § 2705(b)'s enumerated harms. See 18 U.S.C.
§ 2705(b) (requiring government to demonstrate "reason to
believe" that disclosure of the warrant will "seriously
jeopardiz[e] an investigation" or result in another enumerated
harm). That argument, however, first appeared in Twitter's
reply brief in support of its motion to vacate the nondisclosure
order. It is well established that an argument first presented in
a reply brief before the district court is forfeited. Schindler
Elevator Corp. v. Wash. Metro. Area Transit Auth., 16 F .4th
294, 302 n.3 (D.C. Cir. 2021) (citing Solomon v. Vilsack, 763
F.3d 1, 13 (D.C. Cir. 2014)).
C.
Finally, we agree with the parties that Twitter's challenge
to the contempt sanction is not moot. Because Twitter
conditionally paid the sanction and its funds are held by the
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district court in escrow, we may remedy any asserted error by
ordering the district court to return Twitter's funds. See, e.g.,
Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1057
(7th Cir. 1998) (holding that conditional payment "does not
moot the appeal because the appellate court can fashion
effective relief ... by ordering that the sum paid ... be
returned"); R.1 Hosp. Tr. Nat'! Bank v. Howard Commc'ns
Corp., 980 F.2d 823, 829 n.9 (1st Cir. 1992) (reviewing an
appeal of a contempt sanction on the merits where the
contemnor expressed an intent "to escrow the funds pending
resolution of any appeal"). The availability of a remedy "is
sufficient to prevent this case from being moot." Church of
Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992).
III.
A.
On the merits, we begin with Twitter's First Amendment
challenge. Twitter argues that the nondisclosure order is a
content-based prior restraint on speech. See Opening Br. 1.
Because that argument presents a question of law, we review
the district court's decision de novo. See United States v. Popa,
187 F.3d 672, 674 (D.C. Cir. 1999); In re Subpoena, 947 F.3d
at 154.
We assume without deciding that strict scrutiny should
govern our review of the instant nondisclosure order. See In re
Subpoena, 947 F.3d at 155-56; In re Search ofInfo. Associated
with E-Mail Accts., 468 F. Supp. 3d 556, 560 (E.D.N.Y. 2020)
(E-Mail Accounts); cf In re Nat'! Sec. Letter, 33 F.4th 1058,
1063 (9th Cir. 2022). Nondisclosure orders implicate two
disfavored types of speech restrictions: prior restraints and
content-based restrictions. Prior restraints include "court
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orders that actually forbid speech activities" in advance of the
speech occurring. Alexander v. United States, 509 U.S. 544,
550 (1993). Content-based restrictions target "particular
speech because of the topic discussed or the idea or message
expressed." City of Austin v. Reagan Nat'! Advert. of Austin,
LLC, 142 S. Ct. 1464, 1471 (2022) (quoting Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015)). Both types of restrictions
are presumptively unconstitutional, and generally call for strict
scrutiny. See Nat'! Inst. of Family & Life Advocs. v. Becerra,
138 S. Ct. 2361, 2371 (2018); Se. Promotions, Ltd. v. Conrad,
420 U.S. 546, 558 (1975). Assuming that strict scrutiny
applies, we hold that the instant nondisclosure order, on this
record, meets that demanding standard. 5
Strict scrutiny requires the government to demonstrate that
a speech restriction: (1) serves a compelling government
interest; and (2) is narrowly tailored to further that interest. See
Reed, 576 U.S. at 163; Pursuing Am. 's Greatness v. FEC, 831
F.3d 500, 508 (D.C. Cir. 2016). A restriction is narrowly
tailored if '"less restrictive alternatives' ... would not
'accomplish the government's goals equally or almost equally
We note, however, the Second Circuit's conclusion that a
nondisclosure order "is not a typical prior restraint or a typical
content-based restriction warranting the most rigorous First
Amendment scrutiny." John Doe, Inc. v. Mukasey, 549 F.3d 861,
877 (2d Cir. 2008). That court reasoned that such orders do not
restrict "those who customarily wish to exercise rights of free
expression, such as speakers in public fora, distributors of literature,
or exhibitors of movies," as with typical prior restraints. Id. at 876.
And while a nondisclosure order "is triggered by the content of a
category of information," suggesting it is content-based, the John
Doe court deemed it "far more limited than the broad categories of
information that have been at issue with respect to typical content-
based restrictions." Id.21
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effectively."' Nat'! Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 19
(D.C. Cir. 2009) (NAM) (quoting Blount v. SEC, 61 F.3d 938,
944 (D.C. Cir. 1995)).
The government proffered two compelling interests that
supported nondisclosure of the search warrant: preserving the
integrity and maintaining the secrecy of its ongoing criminal
investigation of the events surrounding January 6, 2021. Gov't
Br. 20. Those interests are "particularly acute where, as here,
the investigation is ongoing." In re Subpoena, 947 F.3d at 156.
Investigating criminal activity is a "core government function
that secures the safety of people and property." Google LLC,
443 F. Supp. 3d at 452. In addition, the government's interest
is heightened where an investigation has national security
implications, for "no governmental interest is more compelling
than the security of the Nation." Haig v. Agee, 453 U.S. 280,
307 (1981). Thus, the government's interest was particularly
strong here because its ongoing investigation aimed to
"[f]erret[] out activity intended to alter the outcome of a valid
national election for the leadership of the Executive Branch of
the federal government ... and [to assess] whether that activity
crossed lines into criminal culpability." J.A. 372-73.
Moreover, secrecy is paramount to ensuring that ongoing
investigations can proceed without interference from targets or
interested parties. See Google LLC, 443 F. Supp. 3d at 453.
Breaching the investigation's confidentiality could open the
door to evidence-tampering, witness intimidation, or other
obstructive acts. See 18 U.S.C. § 2705(b); see also In re
Subpoena, 947 F.3d at 156 ("[P]rotecting the secrecy of an
investigation" is a compelling government interest.). Here, the
district court specifically found reason to believe that
disclosure of the warrant would jeopardize the criminal
investigation. See J.A. 1. We therefore conclude that the
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government's asserted interests were unquestionably
compelling.
The nondisclosure order was also "narrowly tailored to
advance the State's compelling interest through the least
restrictive means." Williams-Yulee v. Fla. Bar, 575 U.S. 433,
452 (2015). It bears emphasis that, under the strict-scrutiny
standard, a restriction must be narrowly tailored, not "perfectly
tailored." Id. at 454 (quoting Burson v. Freeman, 504 U.S. 191,
209 (1992)). Here, the nondisclosure order was initially
limited in duration to 180 days. Thus, any concerns associated
with indefinite nondisclosure orders are of no moment here.
Cf, e.g., United States v. Apollomedia Corp., No. 99-20849,
2000 WL 34524449, at *3 (5th Cir. June 2, 2000) (recognizing
the "substantial constitutional questions raised by a
nondisclosure order without any limitation as to time"); In re
Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F.
Supp. 3d 1091, 1093 (N.D. Cal. 2015) (positing that§ 2705(b)
restricts nondisclosure orders' duration to "some limit less than
infinity"). Moreover, the speech restricted- disclosure of the
existence or contents of the warrant - was limited to
information that Twitter obtained only by virtue of its
involvement in the government's investigation. Courts have
suggested that such information, procured from the
government itself or pursuant to a court-ordered procedure, is
entitled to less protection than information a speaker possesses
independently. See Butterworth v. Smith, 494 U.S. 624, 636
(1990) (Scalia, J., concurring) (distinguishing constitutional
protection of what grand jury witnesses know beforehand from
what they learn "only by virtue of being made a witness");
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) ("[A]n
order prohibiting dissemination of discovered information
before trial is not the kind of classic prior restraint that requires
exacting First Amendment scrutiny."). Importantly, Twitter
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remained free to raise general concerns about warrants or
nondisclosure orders, and to speak publicly about the January
6 investigation.
Twitter's contrary arguments are unpersuasive. First,
Twitter claimed that the government's interest in maintaining
the confidentiality of the criminal investigations was
undermined by information already in the public sphere.
Twitter asserted that "the cat [was] out of the bag: the
public ... already [knew] that the Special Counsel [was]
investigating the former President and collecting his private
electronic communications." Opening Br. 25. We disagree.
At the time of Twitter's challenge to the nondisclosure order,
some information about grand jury subpoenas or visitors to the
federal courthouse was public. But Twitter sought to disclose
a different category of information, i.e., the existence of a
search warrant, which was issued by the district court upon a
finding of probable cause that evidence of a crime might be
found in the former President's Twitter account. See I.A. 295.
In any event, the publicly available information that Twitter
cited did not present the full story. Ex parte submissions
reviewed by this court supported the district court's finding that
disclosure would have harmed the integrity and secrecy of the
ongoing grand jury investigation, despite public knowledge of
the broader investigation. 6
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Second, Twitter proposed two less restrictive alternatives
to the nondisclosure order that it contended could address the
government's concerns "while still enabling it to meaningfully
exercise its First Amendment rights." Opening Br. 31. Those
proposals involved revealing parts of the warrant to the former
President or to his representatives. At the time that Twitter
made its motion, those suggested alternatives were nonstarters
because they would not have maintained the confidentiality of
the criminal investigation and therefore risked jeopardizing it.
To the extent that Twitter proposed revealing parts of the
warrant package - the warrant and Attachment A - to the
former President, that argument was forfeited because Twitter
did not raise it when moving to vacate the nondisclosure order.
See I.A. 16-17. In any event, such action would not have
safeguarded the security and integrity of the investigation, as
the whole point of the nondisclosure order was to avoid tipping
off the former President about the warrant's existence.
Moreover, courts have rejected as "unworkable" proposals
similar to Twitter' s idea of notifying the former President's
lawyers or representatives about the warrant, while expecting
them to maintain the warrant's secrecy. In re Subpoena, 947
F.3d at 159. Such an approach would have required the district
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court to take on the unpalatable job of "assess[ing] the
trustworthiness of a would-be confidante chosen by a service
provider." Id.; see also E-Mail Accounts, 468 F. Supp. 3d at
562 (holding that a proposal "to notify someone at the
[targeted] company, like a senior official or a lawyer in its
United States office, of the warrant ... was not as effective as
the nondisclosure order" in protecting an investigation).
Twitter thus failed to proffer any alternative to the
nondisclosure order that "accomplish[ed] the government's
goals equally or almost equally effectively." NAM, 582 F.3d
at 19 (quoting Blount, 61 F.3d at 944).
Because the nondisclosure order was a narrowly tailored
means of achieving compelling government interests, it
withstood strict scrutiny.
B.
Twitter asserts that the district court erred by declining to
stay the enforcement of the warrant pending the court's
adjudication of Twitter' s First Amendment challenge to the
nondisclosure order. Twitter argues that the court's approach
violated Twitter's constitutional rights and contradicted the
Supreme Court's mandated safeguards in First Amendment
cases, as prescribed in Freedman. We find Twitter's
arguments unconvincing.
The sequence in which a district court considers pending
motions is a docket-management decision that is reviewed for
abuse of discretion. See Banner Health v. Price, 867 F.3d
1323, 1334 (D.C. Cir. 2017). But "we review de novo any
errors of law upon which the court relied in exercising its
discretion." Ameziane v. Obama, 620 F.3d 1, 5 (D.C. Cir.
2010). In our view, the district court did not exceed the bounds
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of its discretion when it ordered Twitter to comply with the
warrant before it resolved the company's challenge to the
nondisclosure order. Although the district court could have
resolved the First Amendment issues simultaneously with the
show-cause order, see, e.g., Google LLC, 443 F. Supp. 3d at
455, it was not required to do so. "[D]istrict courts have the
inherent authority to manage their dockets and courtrooms with
a view toward the efficient and expedient resolution of cases."
Dietz v. Bouldin, 579 U.S. 40, 47 (2016). Here, the district
court reasonably concluded that the warrant and nondisclosure
order were "wholly separate order[s]" governed by different
legal standards, and that the criminal investigation should not
be delayed while Twitter's motion was litigated. I.A. 366.
Because the court weighed the government's need for the
evidence at issue in "an important ongoing criminal
investigation," id. at 387, and chose not to delay execution of
the warrant under the particular circumstances presented, "the
district court acted within the range of permissible alternatives
that were available to it," Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir.
1996).
We reject Twitter's underdeveloped argument that the
district court erred by denying it constitutionally required
procedural safeguards, including maintaining the status quo
until its First Amendment challenge could be adjudicated. See
Opening Br. 37; see also I.A. 9. To support that claim, Twitter
relies on Freedman, which addressed a very different
"noncriminal process" - i.e., "the prior submission of a film
to a censor." Freedman, 380 U.S. at 58. The "scheme" in
Freedman "condition[ed] expression on a licensing body's
prior approval of content," which "presents peculiar dangers to
constitutionally protected speech." Thomas, 534 U.S. at 321(quoting Freedman, 380 U.S. at 57).
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In that readily distinguishable context, the Supreme Court
held that a censorship system "avoids constitutional infirmity
only if it takes place under procedural safeguards." Freedman,
380 U.S. at 58. Those safeguards are: "(l) any restraint prior
to judicial review can be imposed only for a specified brief
period during which the status quo must be maintained;
(2) expeditious judicial review of that decision must be
available; and (3) the censor must bear the burden of going to
court to suppress the speech and must bear the burden of proof
once in court." Thomas, 534 U.S. at 321 (quoting FW/PBS,
Inc. v. Dallas, 493 U.S. 215,227 (1990) (principal opinion of
O'Connor, J., joined by Stevens and Kennedy, J.J.)). The
Supreme Court extended those safeguards to other censorship
and licensing schemes in the years following Freedman. See,
e.g., Se. Promotions, Ltd., 420 U.S. at 554, 559-61 (censorship
board for theater productions); City of Littleton v. Z.J. Gifts
D-4, L.L.C., 541 U.S. 774, 776 (2004) (licensing for adult-
entertainment businesses); Riley v. Nat'! Fed'n of Blind of
NC., Inc., 487 U.S. 781,802 (1988) (licensing for professional
fundraisers).
Twitter asserts that Freedman obligated the district court
to maintain the status quo - i.e., forbear from enforcing the
warrant - while Twitter's objections to the nondisclosure
order were litigated. See Opening Br. 35-37. But the
Freedman safeguards applied by the Supreme Court to
censorship and licensing schemes are a poor fit in this case.
Whereas Freedman expressly addressed a "noncriminal"
scheme and imposed protective measures designed to ensure
prompt access to judicial review, Freedman, 380 U.S. at 58-
59, the instant warrant and nondisclosure order were issued
directly by a court in connection with a criminal investigation.
Twitter received the full judicial process contemplated by
§ 2705(b)- a neutral and detached judge considered statutory
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factors and made specific findings that supported the issuance
of the nondisclosure order. See 18 U.S.C. § 2705(b); see also
J.A. 1-2. Thus, there was no need in this case to maintain the
status quo until a court could review Twitter' s arguments
because judicial review of statutory requirements had already
occurred before the nondisclosure order was even served on
Twitter. Freedman is inapplicable in this case.
The more analogous Supreme Court cases are those in
which the Court upheld confidentiality requirements with
respect to information obtained in connection with court
processes. In Rhinehart, the Court sustained a protective order
that prohibited a party from disseminating information learned
through pretrial discovery. Rhinehart, 467 U.S. at 37. Because
the information did not arise from "a traditionally public source
of information," it "[did] not raise the . . . specter of
government censorship." Id. at 32-33. And in Butterworth,
the Court recognized that while a grand jury witness generally
had a right to disclose his own testimony, that right did not
extend to information that the witness gleaned from
participating in the investigation. Butterworth, 494 U.S. at 626,
633 (holding state confidentiality law unconstitutional "insofar
as [it] prohibits a grand jury witness from disclosing his own
testimony after the term of the grand jury has ended," but
leaving in place "that part of the ... statute which prohibit[ed]
the witness from disclosing the testimony of another witness"
(emphasis omitted)).
Thus, the district court was not obligated to implement
Freedman-style procedures while considering a motion to
vacate an order that merely precluded "disclosure of a single,
specific piece of information that was generated by the
government" - i.e., that the government obtained a court order
compelling production of a user's data. In re Nat 'l Sec. Letter,
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33 F.4th at 1077. A nondisclosure order is not the type of
"classic prior restraint" addressed by Freedman, and Twitter
received considerable process before the warrant and
nondisclosure order were even issued. See In re Warrant to
Search a Certain E-Mail Account Controlled & Maintained by
Microsoft Corp., 855 F.3d 53, 56 (2d Cir. 2017) (Camey, J.,
concurring in denial of reh' g en bane) (observing that a warrant
"issued by a neutral magistrate judge upon a showing of
probable cause ... satisfie[ s] the most stringent privacy
protections our legal system affords").
C.
Finally, we affirm the district court's contempt sanction.
A civil-contempt proceeding requires: "(1) issuance of an
order; (2) following disobedience of that order, issuance of a
conditional order finding the recalcitrant party in contempt and
threatening to impose a specified penalty unless the recalcitrant
party purges itself of contempt by complying with prescribed
purgation conditions; and (3) exaction of the threatened penalty
if the purgation conditions are not fulfilled." NLRB v. Blevins
Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981). The
violation must be proven by clear and convincing evidence.
Broderickv. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006).
We review both a contempt finding and a contempt sanction
for abuse of discretion. In re Fannie Mae Sec. Litig., 552 F.3d
814, 818 (D.C. Cir. 2009).
1.
The district court followed the procedure we have
prescribed for imposing a contempt sanction. Faced with
Twitter's alleged noncompliance with the warrant, the district
court issued a show-cause order and held a hearing at which
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Twitter had an opportunity to be heard. At that hearing, the
district court found that Twitter had disobeyed a "clear and
unambiguous court order" - i.e., the warrant - that
"requir[ ed] Twitter to comply with production of the specified
records ... by January [27], 2023." J.A. 211. Because the
government proved that Twitter stood in contempt of the
warrant, the district court threatened to impose "escalating
daily fines" unless Twitter purged the contempt by turning over
the records by 5:00 p.m. on February 7. Id. at 213; see id. at
211, 216. Before setting that deadline, the district court
confirmed that Twitter could meet it. When Twitter failed to
timely purge its contempt, the district court appropriately
issued another order that "exact[ed] ... the threatened penalty"
- a $350,000 sanction. Blevins Popcorn, 569 F.2d at 1184;
see J.A. 216, 354-55.
The district court properly rejected Twitter's assertion that
no sanction was warranted because it substantially complied
with the warrant and acted in good faith. We have not decided
whether a contemnor may rely on its good faith and substantial
compliance to avoid a civil-contempt sanction. Food Lion, Inc.
v. United Food & Com. Workers Int'! Union, AFL-CIO-CLC,
103 F.3d 1007, 1017 (D.C. Cir. 1997). Assuming such a
defense is available, it requires a contemnor to "demonstrate
that it 'took all reasonable steps within [its] power to comply
with the court's order."' Id. (quoting Glover v. Johnson,
934 F.2d 703, 708 (6th Cir. 1991)). Good faith "may be a
factor in determining whether substantial compliance
occurred," but "is not sufficient to excuse contempt." Id. at
1017-18.
Twitter contends that it "substantially complied with the
[w]arrant" because "there was nothing [it] could have done to
comply faster" after the court issued the February 7 order.
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Opening Br. 4 7. Twitter also blames the government for failing
to clarify the warrant's obligations. Id. at 47-48. We are
unpersuaded. The district court noted that Twitter complied
with the warrant "only after it had already delayed production
since January 27, the original deadline." I.A. 387 (emphasis in
original). The court opined that, had Twitter "been diligent and
serious in its good faith intention to comply with the
[w]arrant," it would have brought any issues to the
government's attention "on January 19, 2023, or subsequently
upon review by in-house counsel on January 25 and 26, 2023,
or even during ongoing conversations with the government
through February 1, 2023." Id. at 388. Instead, the court found
that Twitter repeatedly represented to the court that it stood
ready to comply, even as Twitter waited until after the February
7 deadline "to raise,for the first time, multiple questions about
the [w]arrant's document demands." Id. at 387 (emphasis in
original). Under those circumstances, the district court was on
firm footing when it ruled that Twitter had not substantially
and in good faith complied with the warrant. See Food Lion,
103 F .3d at 1019 ( concluding that a company did not
substantially comply when it "did not seek a clarification" of
an order requiring production or "ask for an extension" before
the production deadline).
Twitter argues that the district court erred by considering
Twitter's conduct between January 19 (when it received the
warrant) and February 7 (when the court ordered it to comply
with the warrant by 5:00 p.m.). According to Twitter, the
district court could find it in contempt based only on actions
taken after the February 7 order issued. Opening Br. 49. That
argument fails because it appears to assert good faith,
substantial compliance with the February 7 order instead of the
warrant. At the February 7 hearing, the district court found
Twitter conditionally in contempt for violating the warrant, but
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the court provided Twitter with an opportunity to purge that
contempt and avoid sanctions by producing the warrant returns
by 5:00 p.m. that day. See J.A. 211-15. When Twitter failed
to timely purge, the court found the company in contempt for
disobeying the warrant and imposed the threatened sanctions.
See id. at 211, 354-55. Thus, Twitter's assertions of good faith
and substantial compliance should have addressed all of its
efforts to comply with the warrant, not just its efforts to purge
its contempt by the 5:00-p.m. deadline. Twitter cites no
authority supporting the proposition that a district court must
limit its review of a putative contemnor' s good faith and
substantial compliance to a specific timeframe. Although we
have reversed a district court that "limited its inquiries about [a
contemnor's] compliance efforts to events that occurred before
[a] fine started to accrue," we did so in part because that court
"did not consider good faith for any purpose." Wash. Metro.
Area Transit Auth. v. Amalgamated Transit Union, Nat'! Cap.
Loe. Div. 689, 531 F.2d 617, 621 (D.C. Cir. 1976). It does not
follow that a district court must avoid considering the overall
picture of a party's efforts to comply with a court order.
Accordingly, the district court did not abuse its discretion
by finding Twitter in contempt and rejecting its purported
defense of good faith and substantial compliance.
2.
The district court did not abuse its discretion in imposing
a $350,000 sanction. Civil-contempt sanctions "may not be
punitive" and "must be calibrated to coerce compliance."
In re Fannie Mae Sec. Litig., 552 F.3d at 823. The district
court here imposed a geometric sanctions schedule that would
apply if Twitter failed to complete its production by 5:00 p.m.
on February 7: penalties began at $50,000 per day, to double
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every day. J.A. 216. To be sure, that schedule was highly
coercive. As Twitter belatedly points out, after roughly one
month of noncompliance, it would have required Twitter to pay
a sanction greater than "the entire world's gross domestic
product." Opening Br. 56.
While a geometric schedule is unusual and generally
would be improper without an upper limit on the daily fine, we
nonetheless uphold the district court's sanctions order based on
the particular facts of this case. Twitter never raised any
objection to the sanctions formula, despite having several
opportunities to do so (at the February 7 and February 9
hearings, and in its papers opposing sanctions). The company
thus appeared to acquiesce to the formula. Moreover, the
$350,000 sanction ultimately imposed was not unreasonable,
given Twitter's $40-billion valuation and the court's goal of
coercing Twitter's compliance. Cf In re Grand Jury
Subpoena, 912 F.3d 623, 626 (D.C. Cir. 2019) ($50,000 per
day fine against a state-owned corporation); In re Grand Jury
Investigation of Possible Violations of 18 U.S.C. § 1956 & 50
U.S.C. § 1705, Nos. l:18-mc-175, l:18-mc-176, l:18-mc-177
(BAH), 2019 WL 2182436, at *5 (D.D.C. Apr. 10, 2019)
($50,000 per day fine against "multi-billion-dollar banks");
United States v. Philip Morris USA Inc., 287 F. Supp. 2d 5, 15
& n.11 (D.D.C. 2003) ($25,000 per day fine against company
with $190 million annual profits). Finally, we note that Twitter
assured the court that it would comply with the warrant by 5:00
p.m. on February 7, and never raised the possibility that it
would defy the order for a month and end up owing the court
"the entire world's gross domestic product." Opening Br. 56.
Under these case-specific circumstances, the district court
acted reasonably and did not abuse its discretion by imposing
the $350,000 sanction.
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* * *
In sum, we affirm the district court's rulings in all respects.
The district court properly rejected Twitter' s First Amendment
challenge to the nondisclosure order. Moreover, the district
court acted within the bounds of its discretion to manage its
docket when it declined to stay its enforcement of the warrant
while the First Amendment claim was litigated. Finally, the
district court followed the appropriate procedures before
finding Twitter in contempt of court - including giving
Twitter an opportunity to be heard and a chance to purge its
contempt to avoid sanctions. Under the circumstances, the
court did not abuse its discretion when it ultimately held
Twitter in contempt and imposed a $350,000 sanction.
So ordered.