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October 1, 2009

On September 29, Judge Dawson ruled that anonymous internet commenters could not challenge the United States Attorney’s Office’s issuance of two subpoenas that sought to unmask the anonymous critics of the government. The case was dismissed as “moot”.

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

The ACLU of Nevada initiated an action on behalf of “DOE” clients, to challenge the two subpoenas issued by the United States Attorney’s Office asking for information about online commenters who anonymously criticized the US Attorney's Office in a high-profile and controversial tax case, the Kahre case.  The first subpoena sought information about each and every commenter to an article about the case posted on the Review-Journal’s website. The Review-Journal refused to comply and the subpoena was replaced with a second subpoena seeking information about two comments. The Review-Journal complied with the second subpoena.

“None of the comments that the United States Attorney’s Office is seeking identifying information about are ‘true threats’ and thus they are protected by the First Amendment. Indeed, anonymous political speech is exactly what the First Amendment was designed to protect,” Maggie McLetchie, Staff Attorney at the ACLU of Nevada, explained.

While some of the comments may be crude, hyperbolic rhetoric, they are nonetheless protected speech. One commenter said that he’d bet “Quatloos” – Star Trek money – that one of he prosecutors “does not celebrate his next birthday.” Another said that if the jurors in the case convicted the defendant, that they were “dummies” who “should be hung.”

The Supreme Court has dealt with such hyperbole before. In considering the statement “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J .,” 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 “true threats” and fall squarely within the protection of the First Amendment. The ACLU of Nevada strongly believes that such speech, as crude and unpopular as it might be, must be protected.

In the ACLU’s view, the case is a very live controversy because of the extreme chilling and intimidating effect of the subpoenas. While Judge Dawson deemed moot the DOES’ action to vindicate their free speech rights, as the Review-Journal pointed out, the investigation into the two commenters targeted by the second subpoena is still ongoing. 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. Both subpoenas have caused and, continue to cause, grave First Amendment harms. Now, commenters understandably may not feel free to speak out about the Kahre case or other matters.

In similar contexts, such as gag orders issued to members of the press during criminal trials, courts – including the United States Supreme Court – have held that challenges are not moot and that courts should consider the legal issues. “Further, it is very rare that the object of these subpoenas even find out that their information has been subpoenaed,” Maggie McLetchie pointed out. “The Review-Journal bravely brought light to the practice, and the legal issues deserve to be addressed.”

At the September 29, 2009 hearing, Judge Dawson also indicated that the second subpoena was necessary because the identity of the commenters could help the government determine whether the comments were “true threats.”

The First Amendment and the limits of subpoena power prohibit the government from engaging in precisely that kind of fishing expedition. Where information is protected by the First Amendment, the government cannot issue subpoenas unless they first show a compelling need. It is circular to allow the government to infringe upon the First Amendment to get information that may show that it has the compelling need to violate the First Amendment.

“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?,” McLetchie asked. “It all sounds very Big Brother to me.”

At the September 29, 2009 hearing, Judge Dawson also unsealed the final document in the case that the government filed out of the public eye. The ACLU is pleased with Judge Dawson’s decisions making the case documents available to the public and to both sides.

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