X Corp. is asking the justices to consider whether social media services can be forced to share data about their users with government investigators while being barred from informing those users about the requests.
Trump’s material, the company noted, might have been subject to claims of executive privilege. But other users might have their own privileges to invoke, from attorneys to journalists to spouses.
In the case of Trump’s account, a federal district judge in Washington D.C., Beryl Howell, rejected X Corp.’s protestations and endorsed a so-called “nondisclosure order” that barred the company from informing Trump about Smith’s subpoena. She reasoned that prosecutors had presented evidence that informing Trump could endanger the information and cause risks to Smith’s probe.
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In February 2023, Howell held the company, which Musk had recently purchased, in contempt for dragging its feet on producing the material. The judge fined the company $350,000. And she wondered aloud whether Musk was impeding Smith’s investigation to ingratiate himself to the former president.
The D.C. Circuit Court of Appeals supported Howell’s decision, but the court’s four conservatives wrote a blistering opinioncriticizing the ruling for permitting prosecutors to evade a potential executive privilege fight.
X Corp., represented by prominent attorneys from WilmerHale, contended that the D.C. courts’ decisions failed to protect the company’s First Amendment right to communicate with its customers.