WASHINGTON—The U.S. Court of Appeals for the D.C. Circuit today reversed in part and vacated in part the district court decision dismissing a lawsuit brought by two documentary film organizations challenging rules requiring nearly all visa applicants to disclose their social media handles to the U.S. government. The plaintiffs had argued that the disclosure requirement infringes on filmmakers’ freedom of expression and interferes with Americans’ ability to engage with artists and advocates located abroad. The organizations are represented by the Knight First Amendment Institute at Columbia University, the Brennan Center for Justice, and Simpson Thacher & Bartlett LLP. 

“The court’s decision is disappointing, but it’s not the end of this case. The social media disclosure visa registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime, which the Trump administration is now seeking to expand,” said Carrie DeCell, a senior staff attorney at the Knight Institute. “The government has no legitimate interest in the dragnet collection of this  expressive information, which officials internally acknowledge adds no value to the visa vetting process.”

In today’s opinion, the appeals court concluded that the film organizations had not shown that a decision in their favor would redress their harms, because their members and partners might still refrain from speaking online or traveling to the United States even absent the dragnet disclosure requirement. Instead of affirming the district court’s dismissal, however, the appeals court remanded the case, allowing the organizations a chance to seek leave to amend their complaint and make that showing.  

The State Department rules, which took effect in May 2019, apply to an estimated 14.7 million visa applicants each year, requiring them to disclose all social media handles—including pseudonyms—that they’ve used on any of 20 platforms in the preceding five years. The State Department and the Department of Homeland Security can retain the collected information indefinitely, share it broadly among federal agencies, and disclose it, in some circumstances, to foreign governments.

The plaintiffs in the lawsuit are Doc Society, a non-profit organization committed to supporting documentary filmmakers and connecting them with global audiences, and the International Documentary Association, a non-profit, membership-based association of documentary filmmakers. Their members and partners include internationally acclaimed documentary filmmakers who come from a variety of countries and represent a range of social and political perspectives. Some use pseudonyms as their social media handles to protect themselves and their families from reprisal by repressive governments or private actors.

The lawsuit challenged both the disclosure requirement and related retention and dissemination policies. The suit contended that the disclosure requirement violates the First Amendment because the requirement is not narrowly tailored to the government’s immigration enforcement and national security interests, and that it violates the Administrative Procedure Act because the collection is not “necessary” to establishing visa applicants’ identity or visa eligibility, and because the requirement is arbitrary and capricious.

“Requiring registration of the social media handles of everyone who applies for a visa makes it all too easy to target viewpoints that a particular administration disfavors,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “This program is unconstitutional and uniquely open to abuse as we have seen in recent attempts to exclude people whose views can somehow be characterized as hostile to the United States. It must be stopped.”

Read today’s decision in Doc Society v. Rubio here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Carrie DeCell, Anna Diakun, Katie Fallow, and Theo Tamayo (Knight Institute); Faiza Patel, Rachel Levinson-Waldman, and Emile Ayoub (Brennan Center); and Joshua Polster, Evan Gilbert, and Zoe Rubin (Simpson Thacher).

For more information, contact: Adriana Lamirande, [email protected].