WASHINGTON—On Friday, a federal district court dismissed a lawsuit brought by two documentary film organizations—Doc Society and the International Documentary Association—challenging rules requiring nearly all visa applicants to register their social media handles with the U.S. government. The groups had argued that the registration requirement infringes on filmmakers’ freedom of expression and interferes with Americans’ ability to engage with artists, advocates and others located abroad. The district court dismissed these claims, giving significant deference to the government’s immigration policy decisions. The documentary film 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, and we’re considering an appeal,” said Carrie DeCell, a senior staff attorney at the Knight Institute. “The visa registration requirement is the linchpin of a far-reaching and unconstitutional surveillance regime in which the government monitors the online activities of millions of visa applicants, and continues to monitor them even after they’ve entered the United States. The government has no legitimate interest in collecting this kind of sensitive information, and the First Amendment doesn’t permit it to do so.”

The State Department rules, which took effect in May 2019, apply to an estimated 14.7 million visa applicants each year, requiring them to register 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 challenges both the registration requirement and related retention and dissemination policies. The suit contends that the registration 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.

“Even the government’s own tests haven’t produced any evidence that social media screening works to reliably identify fraud or national security threats,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “And that isn’t surprising—officials are looking at posts in multiple languages, and are trying to interpret jokes, slang, and sarcasm in digital spaces where people communicate differently than they would in real life.”

Read the decision here.

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

The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize and — when necessary — defend our country's systems of democracy and justice.

The Knight First Amendment Institute at Columbia University defends the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. It promotes a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

Simpson Thacher & Bartlett LLP (www.simpsonthacher.com) is one of the world’s leading international law firms. The Firm was established in 1884 and has more than 1,000 lawyers. Headquartered in New York with offices in Beijing, Brussels, Hong Kong, Houston, London, Los Angeles, Palo Alto, São Paulo, Tokyo and Washington, D.C., the Firm provides coordinated legal advice and transactional capability to clients around the globe.