This case involves a custody dispute over an Afghan infant, known as Baby Doe, who was orphaned during a U.S.-Afghan military operation. After a complex series of custody proceedings in Virginia state court, the infant was placed with John and Jane Doe, who evacuated the child from Afghanistan in 2021. The Masts, who had previously obtained an adoption order, sued the Does in federal court. To protect the Does and their family members remaining in Afghanistan from potential Taliban retaliation, the district court issued a protective order prohibiting the Masts from disclosing the Does' identities or information that would indirectly identify them. The Masts challenged this order, arguing it was an unconstitutional prior restraint on their speech, particularly after the Does had engaged with the media. The district court denied the Masts' motion to modify the order and held Joshua Mast in civil contempt for sharing photos of the child, leading to this appeal.
The panel, writing for the majority, first addressed appellate jurisdiction, concluding that the district court's order denying the motion to modify the protective order had the practical effect of an injunction and was immediately appealable under 28 U.S.C. § 1292(a)(1). On the merits, the court acknowledged that the protective order was a content-based prior restraint because it restricted speech based on the message conveyed—specifically, the disclosure of the plaintiffs' identities. However, the court held that such restraints are permissible in exceptional cases involving national security. The government has a compelling interest in protecting the identities of foreign nationals who have aided U.S. efforts, as the ability to recruit and retain such collaborators depends on the credible assurance of confidentiality. The court reasoned that if potential collaborators fear that their identities could be revealed in court proceedings, they would refuse to assist the United States, thereby undermining national security. The court found the order narrowly tailored because it was limited to the specific identities of the plaintiffs and their family members, did not prevent the Masts from discussing the case generally, and included a mechanism for third parties to receive the information if they signed a non-disclosure agreement. The court rejected the argument that the order was unconstitutionally vague, noting that the prohibition against 'indirectly' identifying the plaintiffs provided sufficient notice to ordinary people.
The protective order remains in effect, prohibiting the Masts from disclosing the identities of the Does or their family members to anyone who has not signed a non-disclosure agreement. The decision clarifies that while pseudonymity in litigation is one inquiry, a separate strict scrutiny analysis is required to justify a prior restraint on a defendant's speech about information they knew independently of discovery. The ruling reinforces the government's ability to protect the confidentiality of perceived collaborators to maintain national security interests, even when it restricts the speech of private litigants.
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