Gur Tsabar

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to fight the subpoena with the help of a public-interest law firm, and filed papers in state court demanding it be withdrawn.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.