Free Speech

A Bronx subpoena

You can file this story in a number of different categories: the inability of many New York politicians to grasp the nature of blogs, the cozy way in which political machines do business, the heavy-handed means by which these same machines preserve their power, and lastly, the perils of hosting a forum where anyone can speak out above stuff.

And by stuff, I mean "things people in positions of power would prefer not be talked about".

Per Room 8, that site was served with a criminal subpoena, coupled with a gag order, demanding the release of logs pertaining to a single anonymous blogger on the site. The subpoena was issued in January by the Bronx District Attorney, who was one of the subjects of the posts of the anonymous blogger; you can deduce from the fact that a subpoena was issued that these posts were not in the nature of praise. Unfortunately, the anonymous poster in question deleted all of his entries, but some of them are cached here (.pdf). As an aside, CultureKitchen Media, the publishing entity of this site and others, keeps a lawyer on retainer as a precaution against precisely this scenario.

Ben Smith and Gur Tsabar, the publishers of Room 8, decided to fight the subpoena with the help of a public-interest law firm, and filed papers in state court demanding it be withdrawn.

So we chose to fight the subpoena, and were lucky to be referred – by our friend Orthomom, whom he’d represented – to a talented, dynamic lawyer at the Public Citizen Litigation Group, Paul Alan Levy, a national expert on online free speech. (Support his work here.) He and our smart, thorough, generous, and knowledgeable local counsel – Charlie Spada and Deepa Rajan of Lankler, Siffert, & Wohl – first determined that the Bronx DA was, in fact, seeking the information. Then, in May, they filed a motion to quash the subpoena in state court. (You can read the legal paperwork here.)

Two months later, after we asked the judge to move on the case, the DA withdrew his subpoena. They withdrew the threat of prosecution for speaking about it only after we threatened to sue them in federal court. We’re thrilled by the outcome, and grateful to our lawyers.

With the immediate legal peril removed and the gag order lifted, it's time to take a look at what actually happened here. The outlines of that are damning. An anonymous poster made comments and posted diaries on a blog that were critical of the bi-partisan Bronx machine, including of the local District Attorney, one Robert Johnson. Shortly thereafter, a Grand Jury empaneled by the same D.A. issued a criminal subpoena demanding details captured by the site in an attempt to identify this poster. Subsequently, the poster - his handle is "Republican Dissident" - or someone presumably acting on his behalf deleted the diaries in question.

The New York Times discusses some of the underlying constitutional issues here.

Lawsuits over information posted online are usually civil, not criminal — that is, they are filed by private citizens or companies trying to keep something off the Web. Courts have developed ways to evaluate the claims, often using tests to balance the First Amendment’s protections of speech against the harm caused by whatever someone wrote or said.[...]

But there are fewer precedents explaining how courts should evaluate criminal subpoenas, according to legal experts. Perhaps that is because prosecutors are more cautious about the risk of violating the First Amendment and so issue fewer criminal subpoenas, or because the subpoenas themselves carry language prohibiting disclosure of their terms.

“In the criminal context it’s trickier because it’s the government asking for stuff, and I think it’s going to be harder to fashion a rule, especially when the government is not exactly willing to part with the reasons” for requesting the information in the first place, said Jonathan Zittrain, a law professor at Harvard.

Without knowing the motives of prosecutors, he continued, judges may be hard-pressed to balance their needs against the importance of free speech.

The core of First Amendment jurisprudence is the concept of a chilling effect on Free Speech; broadly, the government may not take certain actions that might intimidate a citizen from exercising his or her right to speak on whatever he or she may choose. There are obviously restrictions to the general principle, including for libel, obscenity, national security, trade secrets, and the like. What was at stake in this case, however, wasn't any of these concerns; it seems, rather, like an attempt to promote the job security of various elected officials, including the issuer of the subpoena, the elected District Attorney himself.

In short, this looks entirely too much like an abuse of power and of judicial process in the furtherance of strictly political goals. Of course, there may be perfectly reasonable justifications for the subpoena, reasons that outweigh the chilling effect.

We could learn about those reasons by means of an independent investigation. State Attorney General Andrew Cuomo, who has oversight of the District Attorneys, would be the right man to talk to about that.

Michael Bouldin's picture



AP have their legal vampires chasing bloggers. I blame Hilary Rosen.

Rogers Cadenhead, founder and publisher of The Drudge Retort, has been Cease and Desisted by AP News for publishing fragments of their syndicated news articles and reports.

Yes, fragments, not the whole articles. Go to Rogers' site to read the reasons given by AP.

Adding a quote to a blog post is very much like the sampling of a hook or a beat on a song. It's why so many people were opposed to the Digital Millenium Copyright Act. It's not only that albums like Beck's Odelay or Public Enemy's Fear Of A Black Planet would never had happened. Documentaries, archival works, opinion or scholarly writing would be all but non-existent if it means that now journalists, bloggers, historians and scholars would need to pay publishing houses for every single quote and/or sample they need for their work.
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liza's picture



The Unnamed War Unfolding Around Us

RECENTLY I posted on YouTube's yanking of a vlogger's account due to the torture practices he was exposing that are perpetrated by Egyptian police. I was definitely disappointed in YouTube, although I sort of expect any large corporate entity to ultimately suppress free speech, because inevitably, free speech involves telling the truth, and at the end of that road can be found many ideas that might not support the agenda and behavior of corporate entities. As the RAND Corporation, "a California based think-tank with close ties to the military-industrial-intelligence complex" sees it:

RAND maintains "homegrown terrorism" will not be the result of jihadist sleeper cells. Rather, it will result from anti-globalists and radical environmentalists who 'challenge the intrinsic qualities of capitalism, charging that in the insatiable quest for growth and profit, the philosophy is serving to destroy the world's ecology, indigenous cultures, and individual welfare.' ...

Further, RAND claims anti-globalists and radical environmentalists 'exist in much the same operational environment as al Qaida' and pose 'a clear threat to private-sector corporate interests, especially large multinational business.'

—Truthout.org, The Homegrown Terrorism Prevention Act: A Tutorial in Orwellian Newspeak

So through these types of statements, we begin to see it all come together. The War of the future, already taking place now. Those who refuse to consider any ill effects upon the world and the animals and the poor and simply the common gente, a breed who refuses to let go of a philosophy of greed, despite the mounting consequences of such a failed paradigm vs. those of us concerned first and foremost with the weakest of us, the meekest of us, the poorest of us, and Mother Earth herself.
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Nezua Limon Xolagrafik-Jonez's picture



First Amendment absolutists don't condone death threats

I am a First Amendment absolutist and I would like to read, amid the discussion of how the Delete key should be wielded, some more nuanced discusssion than I have seen on just where anyone believes the line should be drawn in censoring the Web, blogs or any other speech.

Certainly the words and images directed at Kathy are hateful and abhorrent. If a law has been broken, the accused should be prosecuted. Let's do keep in mind, however, that that person is the one who created and posted the words and images.

Beyond that, I don't see what can or should be done publicly. In case anyone hasn't noticed, anonymous abusers are not the sort of people who "own their words." There are bad people in the world. They do bad things. Bad things happen to good people.

And it multiplies the violation when good people respond in kind.

liza's picture



March is Boycott RIAA month

From the brilliant people of Gizmodo :
Putting Our Money Where Our Mouths Are: Boycott the RIAA in March - Gizmodo:

Alright, we've been following the RIAA's increasingly frequent affronts to privacy and free speech lately, and it's about time we stopped merely bitching and moaning and did something about it. The RIAA has the power to shift public policy and to alter the direction of technology and the Internet for one reason and one reason alone: it's totally loaded. Without their millions of dollars to throw at lawyers, the RIAA is toothless. They get their money from us, the consumers, and if we don't like the way they're behaving, we can let them know with our wallets.

With that in mind, Gizmodo is declaring the month of March Boycott the RIAA month. We want to get the word out to as many people as humanly possible that we can all send a message by refusing to buy any album put out by an RIAA label. Am I saying you should start pirating music? Not at all. You can continue to support the artists you enjoy and respect in a number of ways.

The campaign is simple. Basically boycott anything put out by Warner Music (US), EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany), the companies that fund the RIAA and their ridiculous campaigns.
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liza's picture



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hmmm. i received this email from NARAL today. i'm not sure i like it much. there's just enough ignorance in it to piss me off. i mean, what century are we in that "latinos" and black women are the *only* women of color? what happened to asian, arabs and native women? and the three "pillars" that are being organized around, community control, holistic health, and positive motherhood, sound like they have been re-written by some over anxious white dude who doesn't want to piss off the white women who support NARAL (established women of color org's *do* organize around these things, it just sounds like the fierce women of color language has been co-opted). and the email title is as follows: " It's time to Recognize! the reproductive health needs of women of color". ummm, is it really time? forty years after women of color started organizing on their own because white women couldn't bear to make us a part of the movement, it is *finally* time?
grrr.

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