A Las Vegas Review-Journal article about a controversial tax case prosecuted by the US Attorney’s Office sparked a flurry of comments criticizing the tax policy in the United States. The same United States Attorney who was prosecuting the tax case then issued a subpoena seeking information about each and every comment to that article. The Review-Journal refused to turn over the information and the ACLU of Nevada filed a motion to challenge the subpoena.

The US Attorney’s Office then issued a narrower subpoena seeking identifying information about two specific comments:

  • "I bid 10 Quatloos that Christoper Maietta [one of the prosecutors in the case] does not celebrate his next birthday."
  • "The sad thing is there are 12 dummies on the jury who will convict him. They should also be hung along with the feds."

On behalf of anonymous “DOE” plaintiffs, the ACLU of Nevada filed an amended challenge to the narrower subpoena issued by the United States Attorneys Office. The Review-Journal, however, complied with the narrower subpoena.

Crude or Criminal?

People are free, under the First Amendment, to express themselves in crude ways and to anonymously criticize the government, even in fiery terms. Only when a statement reflects a true, immediate threat can it be punished.

The United States Supreme Court has held that political hyperbolic rhetoric is protected speech. When the Court the considered the statement “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” they found it to be protected speech. The Court explained:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term [of a “true threat”]. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Watts v. United States, 394 U.S. 705 (1969). For similar reasons, conditional and hyperbolic rhetoric that includes fantastical references to Star Trek money cannot constitute a “true threat” and falls squarely within the protection of the First Amendment. “Indeed,” said Maggie McLetchie, Staff Attorney with the ACLU of Nevada, “anonymous political speech is exactly what the First Amendment was designed to protect.”

The second comment says what “should” be done to the jury if they convict. If every comment about what “should” be done to the ACLU, for example, were followed with a subpoena, law enforcement would have time to do little else. When the ACLU of Nevada stopped an execution, someone posted the following comment about the ACLU on the Review-Journal site: "It's about time that ….the ACLU should get the needle for letting the killer have free room and board and a color TV in his cell for the rest of his life.” While such comments may be offensive, they are not criminal nor do they represent a true, immediate criminal threat.

The ACLU of Nevada strongly believes that such speech, as crude and unpopular as it might be, must be protected.


The Subpoenas Chill Speech

Releasing information about anonymous comments has a drastic chilling effect on free speech. The ACLU of Nevada believes that the subpoenas violate the First Amendment rights of commenters, chill speech, and may even potentially chill jurors in the underlying tax case from disagreeing with the government. Now, individuals may not feel free to speak out about the tax case or may not feel free to voice their opposition to actions the government is taking.

The subpoena is especially troubling because it was issued by the same attorney who is prosecuting the tax case the commenters were reacting to. The commenters disagreed with the United States tax policies and the government’s position in the case. The fact that subpoenas were then issued seeking their identifying information carries more than a veiled threat of criminal prosecution for speech.

The First Amendment and the limits of subpoena power prohibit the government from engaging in precisely this kind of fishing expedition. Where information is protected by the First Amendment, the government cannot issue subpoenas unless they first show a compelling need. “Do we want to live in a country where the government has access to whatever information it wants because it thinks there may be some kind of threat?,” asked Maggie McLetchie, Staff Attorney with the ACLU of Nevada. “It all sounds very ‘Big Brother’ to me.”


Secret Filings

In response to the ACLU of Nevada’s challenge to the subpoenas, the government made numerous “secret” filings that are under seal and ex parte which the government claimed only the judge could see. No one else - not the public, the ACLU of Nevada, nor the clients in this case - could see or review them. This violates the rules governing legal actions, and established law.

The government has the burden to prove that something should be kept out of the public eye. Usually when a party wishes to file under seal, they must submit a brief seeking permission and give the other side and the press the opportunity to oppose that request. Here, the process was short circuited and the government seemed to simply assume that they had permission to proceed in secret. Even worse, the documents were withheld from the ACLU of Nevada, the attorneys for the DOE plaintiffs. These “private conversations” between the judge and the U.S. Attorney’s Office violate due process are unprecedented even for cases involving official state secrets.

The ACLU of Nevada sought access to the secret filings and the judge agreed that they should be brought to light. The ACLU of Nevada is an ardent supporter of open government. Opposing counsel should have access to court filings and information about what its government is doing is especially important in this case.

“That the government would proceed under the cloak of secrecy and try to avoid public scrutiny is especially problematic where the heart of the case is governmental abuse of power,” said McLetchie.


Recusal of Judge

The ACLU of Nevada sought the recusal of the judge, Judge Dawson, who was assigned to rule on the challenge to the subpoena. The ACLU does not question the judge’s integrity or ability but is instead seeking recusal in order to preserve integrity in the judicial process because his impartiality might reasonably be questioned.

In 2005, Judge Dawson presided over another high profile tax case. During that trial, Judge Dawson felt intimidated by supporters of the defendant to the point that federal marshals were required for his safety. Additionally, Judge Dawson, recused himself from the underlying tax case that the commenters were discussing.

Given that Judge Dawson was the target of people who may be viewed as similar to the commenters or part of the same anti-tax movement, it is reasonable for an objective observer to question his impartiality when the government is now trying to obtain identifying information about these individuals. This is especially so because the very question raised by the government’s subpoenas is whether certain comments by tax protesters rise to the level of genuine threats.


District Court

Judge Dawson did not recuse himself from the subpoena case and on September 29, 2009, he dismissed the ACLU of Nevada’s motion to quash the subpoenas as “moot”. The investigation into the two commenters targeted by the second subpoena is still ongoing.

The Judge indicated that the second subpoena was necessary because the identity of the commenters could help the government determine whether the comments were “true threats.” And, while the government argued that any issues could be raised in the possible criminal prosecution of the two commenters currently under investigation, it is black letter law that speakers do not need to risk, or wait for, criminal prosecution before challenging governmental activity that infringes on the First Amendment.

The ACLU of Nevada is disappointed by the ruling dismissing the case and is appealing to the Ninth Circuit because of the importance of the underlying principles.