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Citizens Union of City of New York v. The Attorney General, State

United States District Court, S.D. New York

September 1, 2017




         Plaintiffs Citizens Union of the City of New York and Citizens Union Foundation, Inc. of the City of New York (collectively, “Plaintiffs”) commenced this action to challenge the constitutionality of New York Executive Law Sections 172-e and 172-f (the “Disclosure Provisions”).

         Currently pending before this Court is a dispute over a subpoena Plaintiffs served upon the Governor of the State of New York (the “Governor”) insofar as it seeks non-public documents concerning the government's interest in enacting the Disclosure Provisions and the extent to which the Disclosure Provisions are tailored to address that interest. The Governor moved to quash this subpoena on the grounds that the non-public documents sought are not relevant and also are protected from disclosure under the legislative privilege, deliberative process privilege and/or attorney-client privilege. For the reasons that follow, the Governor's motion to quash is GRANTED.


         On June 8, 2016, the Governor announced anticipated ethics, lobbying, and campaign-finance reform legislation intended to “curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission.” (Doc. No. 41 ¶ 38.) In a speech announcing the legislation, the Governor stated:

[T]he power to influence and the power to be heard in elections was tilted beyond all recognition when the Supreme Court upheld Citizens United. This decision ignited the equivalent of a campaign nuclear arms race and created a shadow industry in New York-maligning the integrity of the electoral process and drowning out the voice of the people . . . . As Governor of New York, I am taking action to curb the powers of independent entities and ensure these committees cannot circumvent the law and cheat the system. We are also strengthening disclosure requirements so we know exactly where and from whom this dark money flows. Our message is clear: In New York, democracy is not for sale.

(Doc. No. 41 ¶ 39.)

         On June 17, 2016, at the end of the Legislative Session, two bills that addressed ethics, lobbying, and campaign-finance reform-A10742 and S8160-were introduced into the New York State Assembly and New York State Senate. (Doc. No. 41 ¶ 41.) The two bills were accompanied by a “Message of Necessity” from the Governor, [1] which states, inter alia: “[t]he bill would . . . require disclosures of political relationships and behaviors widely recognized to be influential but which operate in the shadows. As passage of this bill would enact the strongest reforms in the country to combat the outsized influence of dark money in politics, it is imperative that New York pass this bill.” (Doc. No. 41 ¶ 43.) The Senate and Assembly voted upon and passed the two bills on the same day.[2] (Doc. No. 41 ¶¶ 43, 47.)

         On August 24, 2016, the Governor signed the bills into law as Chapter 286. (Doc. No. 41 ¶ 5.) As described by Plaintiffs, Chapter 286 “contained many provisions aimed at much-needed ethics and campaign-finance reform, ” the majority of which are not at issue in this litigation. (Doc. No. 68 p. 1.) However, Chapter 286 also amended the New York Executive Law by adding the Disclosure Provisions, Sections 172-e and 172-f, which are the subject of Plaintiffs' constitutional challenges. (Doc. No. 41 ¶ 5.)

         Section 172-e requires a non-profit organization (“501(c)(3) organization”) that makes an in-kind donation in excess of $2, 500 to a non-profit lobbying organization (“501(c)(4) organization”) to disclose the identity of any donor who makes a donation in excess of $2, 500 to the 501(c)(3) organization.[3] N.Y. Exec. L. §§ 172-e(2)(a), 172-e(1). Section 172-f requires a 501(c)(4) organization that spends more than $10, 000 on published communications that “refer[] to and advocate[] for or against a clearly identified elected official or the position of any elected official or administrative or legislative body relating to the outcome of any vote or substance of any legislation, potential legislation, pending legislation, rule, regulation, hearing, or decision by any legislative, executive or administrative body” to disclose “the name and address of any individual, corporation, association, or group that made a donation of [$1, 000] or more” to the 501(c)(4) organization. Id. at §§ 172-f(2)(a), 172-f(1)(a)-(b). The Disclosure Provisions further mandate that the donor disclosure reports will made publicly available, absent a determination by the New York Attorney General that disclosure may result in harm to the source of the donation. Id. at §§ 172-e(3), 172-f(3).[4] Section 172-e took effect on November 22, 2016, and Section 172-f took effect on September 23, 2016. (Doc. No. 41 ¶ 5.)

         On December 12, 2016, Plaintiffs filed a Complaint in the Southern District of New York against the Governor, the Attorney General of the State of New York, and various other state officials, [5] seeking declaratory and injunctive relief from the implementation and enforcement of the Disclosure Provisions. (Doc. No. 1.) The Complaint alleged that the Disclosure Provisions are facially overbroad under the First Amendment. Plaintiffs subsequently filed an Amended Complaint, which added claims that the Disclosure Provisions are unconstitutional under the First Amendment as applied to Plaintiffs and invalid under the New York State Constitution. (Doc. No. 41.) In the Amended Complaint, Plaintiffs also assert that the Governor signed the legislation “to retaliate against good government groups like Plaintiffs for criticizing his ethics reform efforts.”[6] (Doc. No. 41 ¶¶ 4, 32-34, 87, 97, 120, 131.)

         On December 30, 2016, Plaintiffs wrote to the Court advising that they sought leave to file a motion for a preliminary injunction, preceded by ”targeted discovery on the existence and scope of the government's interest in obtaining donor disclosures from covered organizations, and the interest's relationship to the amount of burdened speech, both of which are vital to analyzing the facial overbreadth of the statutes.” (Doc. No. 28 pp. 1, 5-6 & n.2.) Plaintiffs further explained that the necessary discovery included “basic documents like the bill jacket, message of necessity, and legislative history, and any other documents from the Governor's office concerning the rationale for the statute.” (Doc. No. 28 p. 1 n.2.) On January 11, 2017, the Honorable Richard M. Berman ruled that “limited expedited discovery” would be permitted prior to Plaintiffs' application for a preliminary injunction. (Doc. No. 34 p. 7.)

         On January 24, 2017, Plaintiffs served Requests for the Production of Documents (the “Requests”) on the Governor seeking documents regarding the nature and extent of the government interest in the Disclosure Provisions, the scope of the Disclosure Provisions, the application of the Disclosure Provisions, and the Governor's Message of Necessity, among other documents and information. (Doc. No. 38-1.) Plaintiffs also served the New York State Senate (the “Senate”) and the New York State Assembly (the “Assembly”) with subpoenas seeking similar types of information on the same day. (See Doc. No. 63-1.) The Governor, Senate, and Assembly agreed to produce copies of publicly available documents in their possession regarding the Disclosure Provisions, but objected to Plaintiffs' demands for the production of non-public documents. Specifically, the Governor objected to the Requests on relevance grounds and insofar as they sought production of privileged documents and communications.

         The Governor subsequently requested a conference to address his anticipated motion for a protective order quashing the Requests. (Doc. No. 38.) On March 3, 2017, this Court held a pre-motion conference and granted the Governor leave to proceed with filing a motion for a protective order. (Doc. Nos. 44-45, 50.)

         Following the March 3, 2017 conference, the Senate and Assembly (collectively, the “Intervenors”) sought leave to intervene in this action for the limited purposes of participating in the briefing for the Governor's motion for a protective order, explaining that their privileges would also be implicated by any ruling regarding the Governor's claims of privilege. (Doc. Nos. 46, 49, 53-54.) Judge Berman granted the Intervenors' applications on March 10, 2017. (Doc. No. 55.)

         On March 17, 2017, the Governor filed the instant motion for a protective order quashing Plaintiffs' Requests. (Doc. Nos. 64-65.) The Intervenors filed memoranda of law in support of the issuance of a protective order on the same day. (Doc. Nos. 61-63.) The Governor and Intervenors all argue in their briefs that the discovery Plaintiffs seek is not relevant and, further, is protected from disclosure under the legislative and deliberative process privileges, as well as attorney-client privilege in some instances. Plaintiffs oppose the Governor's motion. (See Doc. No. 68.)

         On April 25, 2017, this Court held oral argument on the pending motion for a protective order. During the conference, the Court ordered Plaintiffs to serve revised and narrowed discovery requests on the Governor by May 5, 2017. The Court also directed the parties to provide supplemental briefing regarding two issues raised during oral argument: the relevance of the discovery sought and the potential waiver of privilege.[7] The Court further ordered the Governor to serve a redacted privilege log upon Plaintiffs and to provide an unredacted version of the privilege log to the Court for in camera review. (Doc. Nos. 77, 79.)

         On May 5, 2017, Plaintiffs filed their supplemental brief and also served their Amended First Set of Requests for Production of Documents (the “Amended Requests”) upon the Governor. (Doc. No. 81.) The Amended Requests seek:

• Documents and communications containing factual information or factual conclusions concerning the government's interest in enacting the Disclosure Provisions, including factual information or factual conclusions concerning any purported harm or problem (or lack thereof) resulting from the activities regulated by the Disclosure Provisions.
• Documents and communications containing factual information or factual conclusions concerning the relationship, if any, between the Disclosure Provisions and “dark money, ” as that term is used by the Governor in his message of approval, dated August 24, 2016, including the existence, prevalence, or impact of such “dark money.”
• Documents and communications containing factual information or factual conclusions concerning the relationship, if any, between the Disclosure Provisions and “shadow lobbying, ” as that term was used by the Governor's spokesman's public statements directed at “Good Government Groups, ” including the existence, prevalence, or impact of such “shadow lobbying” by 501(c)(3)s or 501(c)(4)s.
• Documents and communications containing factual information or factual conclusions concerning whether and what ways the scope of activity regulated by the Provisions, and the manner of regulation, was tailored to address the identified problems or harms, and not to otherwise burden First Amendment rights, including how the activities regulated compare to activities that were already subject to regulation prior to enactment of the Disclosure Provisions.
• Documents and communications containing factual information or factual conclusions concerning whether and in what ways the Disclosure Provisions are like or unlike other disclosure provisions in other states or jurisdictions.

(Doc. No. 81-1 pp. 5-7.)

         Plaintiffs assert that the Amended Requests, taken together, seek the production of factual information or materials in the possession of the Governor or his staff that “supports or undermines the existence of any real harm or problem resulting from the activities regulated by the [] Disclosure Provisions; that supports or undermines a conclusion that the Provisions will alleviate those harms or problems; and that supports or undermines a conclusion that the scope of activity regulated by the Provisions, and the manner of regulation, was tailored to address the identified problems or harms, and not to otherwise burden First Amendment rights.” (Doc. No. 81-1 p. 4.) They have repeatedly clarified, however, that the Amended Requests do not seek “the subjective intent of the Governor or any of his aides.” (Doc. No. 81-1 pp. 4-5.)

         On May 30, 2017, the Governor filed his supplemental brief and submitted his Privilege Log to the Court for in camera review. (Doc. No. 89.) For each of the 214 documents over which the Governor has asserted a claim of privilege, the Privilege Log lists the date, the document type, the author, the recipients, the type of privilege asserted, and a description of the document. The documents included on the Governor's Privilege Log can be broadly categorized as:

• Communications between and among counsel for the Governor regarding the drafting of the Disclosure Provisions (Privilege Log Entry Nos. 1; 25; 38).
• Communications between and among counsel regarding research by, or requested by, counsel for use in drafting the Disclosure Provisions (Privilege Log Entry Nos. 3-24; 26-27; 47-48; 138).
• Drafts of summary memoranda prepared by counsel regarding potential ethics reform bills, including summaries of the purpose and provisions of the legislation (Privilege Log Entry Nos. 28-30; 57; 59; 61-62; 67).
• Communications regarding counsel's legal assessment or analysis of the Disclosure Provisions, including regarding the potential scope of the disclosure requirements (Privilege Log Entry Nos. 2; 31; 135-137; 214).
• Communications regarding, requesting, or reflecting counsel's edits to draft public statements regarding campaign finance reform and the ethics reform legislation (Privilege Log Entry Nos. 32-37; 39-46; 49-56; 58; 60; 63-66; 68-134; 139-175; 179-180; 206-209).
• Communications regarding the drafts of the sponsor's memo, approval message, and/or executive order for the ethics reform legislation, as well as communications requesting or reflecting the work of counsel regarding these documents (Privilege Log Entry Nos. 176-178; 181-205; 210-213).

(Doc. No. 89 Ex. B.)

         The Governor also submitted a list of the documents that he, as well as the Senate and Assembly, have produced to Plaintiffs in discovery thus far. (Doc. No. 89 Ex. C.) This list includes a number of documents regarding the legislation at issue, including the Bill Jacket, emails between the Governor's Counsel's Office and various third-parties such as “Good-Government Groups, ” the June 17, 2016 Senate Standing Committee on Rules Voting and Attendance Record, DVDs of the Senate's discussion and vote on the legislation, the Assembly Floor Debate Transcript, and Assembly agendas, among other documents. (Doc. No. 89 Ex. C.)

         During the pendency of the instant motion for a protective order, the Governor filed a motion to dismiss the Amended Complaint based upon, inter alia, executive immunity from suit under the Eleventh Amendment. (Doc. No. 82.) On June 23, 2017, Judge Berman granted the Governor's motion to dismiss, holding that the Court lacked subject matter jurisdiction to consider Plaintiffs' claims asserted against the Governor in his official capacity. (Doc. No. 95.)

         Following Judge Berman's Opinion and Order dismissing the Governor as a party to this litigation, Plaintiffs served the Governor with a third-party subpoena pursuant to Federal Rule of Civil Procedure 45. (Doc. No. 96-1.) The subpoena propounds identical Requests for the Production of Documents as Plaintiffs' Amended Requests. (See Doc. No. 96.)

         The parties subsequently requested that this Court convert the Governor's motion for a protective order, and all briefing associated with that motion, into a motion to quash Plaintiffs' subpoena seeking the production of documents. (Doc. Nos. 96, 98, 100.) This Court granted that application during a conference held on June 29, 2017. (Doc. No. 100.)



         A. Federal Rules Of Civil Procedure 45 And 26

         Rule 45 governs the issuance of third-party subpoenas and supplies the framework for motions to quash. Under Rule 45(d)(3), the court must modify or quash a subpoena that, inter alia, “requires disclosure of privileged or other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). In assessing whether the subpoena imposes an undue burden, courts weigh “the burden to the subpoenaed party against the value of the information to the serving party” by considering factors such as “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” Bridgeport Music Inc. v. UMG Recordings, Inc., No. 05-cv-6430 (VM) (JCF), 2007 WL 4410405, at *2 (S.D.N.Y. Dec. 17, 2007) (quoting Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005)). “Motions to compel and motions to quash a subpoena are both ‘entrusted to the sound discretion of the district court.'” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)).

         The discovery parameters set forth in Rule 26 also apply to subpoenas served upon non-parties. Under Rule 26(b), “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). In general, the relevance standard that applies when seeking discovery from a party also applies to non-parties. Malibu Media, LLC v. Doe, No. 15-cv-3147 (AJN), 2016 WL 5478433, at *2 (S.D.N.Y. Sept. 29, 2016) (“subpoenas issued under Rule 45 are subject to the relevance requirement of Rule 26(b)(1)”) (internal quotations omitted).

         The party seeking discovery bears the initial burden of proving the discovery is relevant, and then the party withholding discovery on the grounds of burden, expense, privilege, or work product bears the burden of proving the discovery is in fact privileged or work product, unduly burdensome and/or expensive. See Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132, 135 (S.D.N.Y. 2012) (“Once relevance has been shown, it is up to the responding party to justify curtailing discovery.”) (citation omitted); Allison v. Clos-ette Too, L.L.C., No. 14-cv-1618 (LAK) (JCF), 2015 WL 136102, at *8 (S.D.N.Y. Jan. 9, 2015).

         B. Application Of Rules 45 And 26

         Plaintiffs, as the parties seeking discovery from the Governor, bear the initial burden of proving that the information and documents sought are relevant and proportional to the needs of the case. See Fed. R. Civ. P. 26(b); Fireman's Fund Ins. Co., 284 F.R.D. at 135.

         In their Amended Complaint, Plaintiffs allege that the Disclosure Provisions are overly broad on their face and as-applied to Plaintiffs and other similar types of “good-government groups.”[8] First Amendment challenges to legislation like the Disclosure Provisions are analyzed under heightened scrutiny. For purposes of this discovery motion only, the parties agree that the Disclosure Provisions will be subject to “exacting scrutiny, ” which assesses whether there is a “substantial relationship” between the Disclosure Provisions and a “sufficiently important” governmental interest.[9] (Doc. No. 81 p. 1; see also Doc. No. 38 p. 3.) See also Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 366-67 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976)); Indep. Inst. v. Fed. Election Comm'n, 216 F.Supp.3d 176, 190 (D.D.C. 2016), aff'd, 137 S.Ct. 1204 (2017). Under this standard, Plaintiffs argue that documents reflecting the “factual information” considered by the Governor and Members of the Senate and Assembly concerning the governmental interest in the Disclosure Provisions and the Disclosure Provisions' relationship to those interests are relevant to the merits of their claim and, as such, are subject to discovery in this litigation. (See, e.g., Doc. No. 81 pp. 1-3.) They state that factual information may be contained in statistics, reports, studies, investigative findings, and other communications.

         1. Production Of Documents In The Public Record

         As a starting point, it is important to recognize what discovery has been produced thus far. The Governor has produced all public legislative documents in his possession, including the Governor's Message of Approval, his Message of Necessary, and the Bill Jacket. The Bill Jacket is comprised of several documents, including the text of the bill, vote count, Message of Necessity and requests for same from the Legislature, and letters from “Good Government Groups” concerning the proposed legislation. The Governor also produced email communications between the Governor's Counsel's Office and third-party entities, such as Citizens Union, the Brennan Center, Lawyers Alliance for New York, and other groups, with related attachments. Likewise, the Senate and Assembly have produced documents in their possession regarding the legislative history, including the voting records, relevant transcripts, and the Assembly Sponsors' Memorandum, among other documents and communications.

         In the Governor's and Intervenors' view, the legislative history and other materials in the public record are the only evidence relevant to Plaintiffs' facial and as-applied challenges to the Disclosure Provisions, and they have already produced this information. They correctly point out that, in other First Amendment cases, numerous courts have recognized that the bill text, legislative record and other public materials are the primary source for discerning the governmental interest in the legislation (regardless of the standard of review applied). See, e.g., Buckley, 424 U.S. at 66-67, 72 (relying on the legislative history to conclude that the governmental interests sought to be vindicated by the disclosure requirements were sufficiently important to withstand exacting scrutiny); New York v. Ferber, 458 U.S. 747, 757-59 (1982) (relying on the legislative history and other public sources as supplying the governments' basis for enacting the challenged law and holding “[w]e shall not second-guess this legislative judgment”); City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984) (for a First Amendment case, “[t]he relevant governmental interest is determined by objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of proceedings.”); Allstate Ins. Co. v. Serio, No. 97-cv-620 (SS) (THK), 1998 WL 477961, at *5 (S.D.N.Y. Aug. 13, 1998) (“[a]s is traditionally done, inquiry into the constitutionality of [the challenged provision] can be conducted on the basis of the statutory scheme, the legislative history, [and] other publicly available material . . . .”); All. of Auto. Mfrs., Inc. v. Jones, No. 4:08-cv-555 (MCR) (CAS), 2013 WL 4838764, at *4-5 (N.D. Fla. Sept. 11, 2013) (“Legislative history is the primary source for determining legislative intent”); see also Nat'l Ass'n of Mfrs. v. Taylor, 582 F.3d 1, 13-13 (D.C. Cir. 2009) (courts may look to the legislative history to discern the government's interest, but should only do so when the statutory text itself is ambiguous).

         2. Plaintiffs' Requests For Non-Public Documents

         Plaintiffs vigorously dispute that discovery is limited to materials in the public record and argue that they are entitled to know what “factual material” was before the Governor and legislative bodies for several reasons. First, Plaintiffs contend that the documents in the Governor's Privilege Log should be produced because the public legislative records do not contain sufficient information to withstand heightened scrutiny. This argument misses the mark. While a sparse legislative record, if proven, may be relevant to Judge Berman's determination on the merits, it does not justify turning discovery into a fishing expedition into non-public information that may or may not have been considered important by individual legislators and the Governor in connection with passage of the Disclosure Provisions; nor does it warrant the disclosure of privileged materials. See Lemanik, S.A. v. McKinley Allsopp, Inc., 125 F.R.D. 602, 608 (S.D.N.Y. 1989) (“it has long been the rule in this Circuit that ‘the parties should not be permitted to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.'”) (citing In re Surety Ass'n of Am., 388 F.2d 412, 414 (2d Cir. 1967)). Rather, the Federal Rules of Civil Procedure dictate that the appropriate inquiry remains whether the discovery sought-here, the documents listed on the Governor's Privilege Log-is relevant, proportional, and otherwise not barred by an applicable privilege or as a result of undue burden or expense.

         Plaintiffs next argue that documents on the Privilege Log should be produced because the government must present concrete, pre-enactment evidence establishing the existence of a sufficiently important governmental interest and that the Disclosure Provisions are tailored to address that interest. (See, e.g., Doc. No. 81 pp. 1-2.) Plaintiffs assert that they need to know what facts the Governor and legislators considered before enacting the Disclosure Provisions in order to make their argument that the State lacked a sufficient evidentiary basis to justify enacting the Provisions and that the State's alleged concerns also are not addressed by the Provisions. (Doc. No. 100 at 13:5-19.) While the Supreme Court has required the presentation of “concrete evidence, ” such as statistics, to withstand a constitutional challenge in some cases where the government's asserted justification for a law is premised on empirical data, see Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 664-67 (1994), the Court has explained that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391 (2000). The Court has held that empirical evidence is not required, however, when the asserted government interest is “neither novel nor implausible.” Id. at 391. In Nixon, a case involving a challenge to campaign contribution limitations imposed by the State of Missouri, the Court rejected the argument that empirical evidence was required and, instead, held that an affidavit from a state senator and various public newspaper articles were sufficient to substantiate the state's interest in preventing corruption, [10] an interest that had already been recognized as important by the Court in Buckley. Id. at 391-94.

         In the same vein as Nixon, the Governor and Intervenors argue that the factual discovery Plaintiffs seek is irrelevant because “[t]he government interest here in disclosure has been repeatedly recognized by courts, commentators, and Citizens Union itself” and has been found to be sufficiently important to justify requiring the disclosure of donors. (Doc. No. 70 p. 5; see also, e.g., Doc. No. 65 p. 11.) They emphasize that in other donor disclosure cases, the Supreme Court has never required the government to support its interest in the disclosure requirements by pointing to facts considered by individual legislators before enactment of the statutes at issue, but instead has looked to its prior precedent, and to a lesser extent, the legislative history, to determine whether the challenged disclosure requirement can withstand constitutional scrutiny. (Doc. No. 70 p. 5) (citing, i.e., Citizens United, 558 U.S. at 367). Plaintiffs acknowledge that “the Supreme Court has heard donor disclosure First Amendment cases again and again over . . . the last ten years” (Doc. No. 79 at 68:20-22), yet, significantly, they do not cite to a single case involving a First Amendment challenge to a disclosure requirement where the government was required to identify specific, non-public facts that were ...

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