The dispute centers on a custody battle over an Afghan infant, Baby Doe, who was orphaned during a joint U.S.-Afghan military operation in 2019. After the Masts obtained an adoption order, U.S. military personnel helped Baby Doe and her guardians, John and Jane Doe, evacuate Afghanistan in August 2021. The Does later sued the Masts and others in federal court, seeking a protective order to shield their identities from public disclosure.
The district court granted the order ex parte in September 2022, finding that revealing the Does’ identities or their evacuation details would pose a substantial risk to their physical safety and that of their family members in Afghanistan. The court prohibited the Masts from disclosing any information identifying the Plaintiffs unless the recipient first executed a non-disclosure agreement.
The Masts challenged the order, arguing it was an unconstitutional prior restraint on their speech because they had learned the Does’ identities independently of litigation. They contended that restricting their ability to communicate this information violated the First Amendment and did not survive strict scrutiny.
Writing for the majority, Judge Richardson held that while the order constituted a content-based prior restraint, it fell within a narrow exception permitting such restrictions to protect national security. The court emphasized that the government has a compelling interest in ensuring the safety of foreign nationals who ally themselves with U.S. military and diplomatic efforts abroad.
The opinion noted that if such foreign nationals cannot rely on U.S. assurances of protection, the Nation’s ability to cultivate essential human assets abroad would be seriously undermined. The court found that disclosure of the Does’ identities would predictably lead the Taliban to perceive them as American collaborators, creating a grave risk of retaliation against their families.
The Fourth Circuit concluded that the protective order was narrowly tailored and the least restrictive means of safeguarding this interest. The order limited only the Masts’ ability to identify the Plaintiffs, did not prevent them from discussing the litigation generally, and allowed disclosure if third parties signed non-disclosure agreements.
The court also rejected the Masts’ claim that the order was unconstitutionally vague, finding that the prohibition against indirectly identifying the Plaintiffs provided sufficient notice of prohibited conduct. The appeal was affirmed by a published opinion, with Judge King dissenting on the issue of appellate jurisdiction.