ACLU Calls Subpoena 'An Abuse' As Newspaper Readies To Hand Over Information

by Wendy Davis, Jun 22, 2009, 6:59 PM

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The American Civil Liberties Union is asking a federal district court to quash a subpoena seeking information about commenters to a recent Las Vegas Review-Journal article.

The civil rights group is also asking the court to issue a protective order that would prohibit the federal authorities from using any information that may have already been disclosed about the commenters.

Federal prosecutors in Las Vegas are now seeking the names, IP addresses, email addresses and other personal information about two commenters to a May 26 article about the tax evasion trial of local business owner Robert Kahre. The authorities initially demanded the names, IP addresses, email addresses and other personal information of all 100-plus commenters to the story, but curtailed their request last week.

One of the commenters allegedly said, "The sad thing is there are 12 dummies on the jury who will convict him. They should be hung along with the feds." The other allegedly said he would bet "quatloos," or "Star Trek" money, that the prosecutor wouldn't see his next birthday.

Maggie McLetchie, an attorney with the ACLU of Nevada, said those statements shouldn't be treated as serious threats. "Given the context of these comments and the nature of them, we don't think they're true threats," she said, adding that many people use hyperbole online. "Wishing that something would happen is different from having a plan to do that thing."

McLetchie said the ACLU was going to file court papers Monday specifically addressing the two commenters at issue. In a motion filed last week, the group argued that the subpoena marks an improper attempt to chill political dissent. "While prosecutors have wide latitude to issue grand jury subpoenas, they must still operate within the bounds of the First Amendment," the group wrote in its court papers, which were filed last week on behalf of some of the anonymous commenters. "Here, the subpoena is an abuse of the grand jury process, and is a thinly veiled threat to prosecute people for criticizing the government."

The Las Vegas newspaper's editor, Thomas Mitchell, said Monday that the paper will turn over IP addresses and whatever other information it has. "At least it was narrow; it was specific," he said of the whittled down request. Mitchell added that he didn't know whether the newspaper's lawyers had already provided the information as of Monday evening.

McLetchie said that even if the paper discloses information about commenters, the court can still protect people's identities by ordering the prosecution to refrain from attempting to subpoena more information about those users.

Other digital rights advocates agreed with McLetchie that the two posts at issue appear to be protected speech.

"No reasonable person visiting the Las Vegas Review Journal's message board would consider these to be true threats against the jury or the prosecutors, particularly considering the context, where hyperbolic political speech is to be expected," said Kevin Bankston, an attorney with the Electronic Frontier Foundation. "They are definitely not unequivocal and unconditional direct threats against anyone. At most, they are exaggerated expressions of the authors' objections to the case, and are fully protected by the First Amendment."

Paul Levy, a lawyer with Public Citizen, added that the comments appeared to be more of an expression of hostility towards the government's position than a specific threat. At the same time, he says, it's possible a judge could decide that the statements warrant further investigation and uphold the subpoena on that basis. "I wouldn't say this is an automatic win for the ACLU, but I don't see these statements as threats."

The U.S. Supreme Court ruled in a 1987 case that people have a free speech right to criticize the government, even if they do so in objectionable terms. In that case, a county in Texas fired an employee who responded to news of the attempted assassination of President Ronald Reagan by saying, "Shoot, if they go for him again, I hope they get him." The court ruled that the city shouldn't have fired the employee because she had a First Amendment right to comment on a matter of public interest.

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