Free Speech Showdown: Inside X Corp’s Fight to Shield Users from Secret DOJ Subpoenas

For nearly a year, Elon Musk’s X Corp. has been waging a secret courtroom battle to weaken a potent and increasingly common tactic employed by the Justice Department: legal gag orders that prohibit social media companies from telling users when prosecutors demand access to their accounts.

X took up the cause of the ex-FBI officials — Garret O’Boyle and Kyle Seraphin — after prosecutors served a grand jury subpoena on the company on Jan. 5, 2024, seeking detailed records associated with both men’s X accounts. The subpoena was accompanied by a nondisclosure…   order that forbade the social media giant from notifying the two men about the demand. The company quickly went to court to invalidate the order and inform O’Boyle and Seraphin about the subpoena.

Though judges have unsealed some aspects of the case between X and the Justice Department, the names of the men and the specifics of their fight remain under a court-ordered seal. Using details in the unsealed filings and speaking with sources familiar with the matter, POLITICO has confirmed that the case is related to O’Boyle and Seraphin.

X’s battle on behalf of the two men came after they had already become a cause célèbre on the right because of their public claims of political bias in the Justice Department and FBI. O’Boyle and Seraphin shared some of their concerns with congressional Republicans, who cast them as whistleblowers resisting Biden administration pressure. When X launched its fight against the nondisclosure order, the company argued that based on what was publicly known about the two men, the grand jury subpoena may have been “retaliatory.”

Washington, D.C.’s Chief U.S. District Judge James Boasberg rejected X’s claims. Prosecutors, Boasberg concluded, had demonstrated that their investigation could be impaired if O’Boyle or Seraphin were told of the subpoena. Seraphin has since publicly claimed he was targeted by DOJ for retaliatory purposes.

Despite the political overtones of the case, X and its high-powered legal team from WilmerHale have framed the battle as a pivot point in a much larger First Amendment fight that cuts across partisan lines: whether the government should be able to force social media companies to hand over their users’ information without first giving those users a chance to fight back.