Gag Orders That Protect Grand Jury Subpoenas to Identify Anonymous Speakers

by Paul Alan Levy

Now that a federal court gag order against it has been lifted, Reason Magazine has now published its own comments, and a number of other bloggers have been writing as well, about Reason’s experience with a grand jury subpoena seeking to identify anonymous online commenters.  In response to an article about the sentencing of a criminal defendant, some commenters took their venting about a trial judge on the United States District Court for the Southern District to the extreme of the general statements “judges like her should be taken out back and shot” or “[shot] on the steps of the courthouse.”  Like teenagers egging each other on, other bloggers suggested “feeding her through a wood chipper”; still others said that she would have her own special place in hell.  Considering that federal judges and their spouses have been attacked and even assassinated within recent memory, and that, so far as I know, some federal judges and their staff are genuinely concerned about their security as a result of public reactions not to speak of the craziness of some extremist segments of the population, it is hard to fault federal prosecutors from taking such comments seriously even if the comments themselves did not amount to “true threats” that could properly be punished under the First Amendment.

In addition to discussing the subpoena itself, Reason's article describes in some detail the communications between the Assistant United States Attorney (AUSA) and its attorney about the issuance and pursuit of the subpoena.  The AUSA's overbearing conduct, as reported there (I would welcome any rebuttal from the AUSA or his press office) recalls for me the experience of defending Room Eight, a New York politics blog, against a subpoena seeking to identify a co-blogger who had attacked a Republican ally of the Bronx District Attorney whose office had secured the subpoena. 

As in the Room Eight case, the United States Attorney’s Office for the Southern District of New York brought both the office’s prosecutorial power and the normal complaisance of federal judges in its invocation to bear to try to block the disclosure of the existence of the subpoena.  The AUSA moved not only to block general publication but more specifically by giving notice to the anonymous commenters so that they could, if they wished, retain counsel to seek to have the subpoena quashed on First Amendment grounds. 

This would have been a hard motion on which to prevail, to be sure, and given the nature of the comments it is not surprising that no lawyers came forward to defend anonymity.  Still, the principle of giving anonymous speakers a chance to defend their anonymity is an important one, and Reason did right by honoring it.

The Gag Orders, Formal and Informal

The subpoena was accompanied by a “request” that the subpoena not be disclosed, and that the AUSA be notified if Reason was not willing to refrain from disclosure.  The reason for the latter request became clear after Reason’s counsel, in the course of an effort to meet and confer about the breadth of the subpoena, told the AUSA that her client planned to notify the Does:  a few hours later, the AUSA obtained a gag order (lesson to be learned — if you get such a request, send the notice right away, before telling the prosecutor that you might not).  The gag order here came too late to block notification — Reason had already effected notification, which is undoubtedly why the subpoena came to light. At that point, the gag order only prevented Reason from attacking the subpoena publicly.

(Sidenote– the AUSA sent the gag order with a cover letter directly to Reason’s editor even though he knew that Reason was represented by counsel.  Query whether this letter violated the ethical rules governing contact by counsel with a party represented by counsel  – certainly to me this is typical of arrogance from a high-powered office, some of whose lawyers consider themselves so elite as to be less bound by the ethical rules that govern other lawyers). 

The gag order contained boilerplate about possible reasons that might justify a gag order in some cases, but no findings making specific reference to facts in this case showing the need for a gag order. To be sure, there may be circumstances in which disclosure of a subpoena could tip off criminals about the existence of a secret investigation and enable them to better cover their tracks, or indeed to eliminate witnesses.  But when the subpoena seeks email addresses provided through registration and the IP addresses from which Internet comments were posted, it is highly unlikely that such concerns could be seriously thought to apply here.  It would be interesting to see what showings were made in a written application for the gag order.

As it became clear that the story was breaking, due to some excellent coverage by Ken White at Popehat, the AUSA reportedly began muttering implied threats of prosecution for interfering with a criminal investigation and contempt of the gag order – at least, the AUSA suggested, he thought this has happened and he warned that he would be investigating.  All this was reminiscent of the sort of threats and implications that we got from the Assistant DA’s in the Room Eight case.  We did our best to document the threats in correspondence while remaining unfazed by them.

In the Room Eight case, the Bronx DA suffered from an attack of good judgment and agreed to have the gag order lifted; indeed, rather than respond to our motion to quash, he agreed to withdraw the subpoena.  In the Reason case, Reason has already complied with the subpoena (after none of the commenters moved to quash within the exceptionally short time period that they were given) but the gag order itself has been lifted, albeit only with the AUSA’s consent which was given on the very limited ground that the order had become moot because Ken White had disclosed the subpoena, and then published informed speculation about the gag order on his Popehat blog.  In my experience, this is typical – when bloggers push back against this sort of gag order, the order tends to be lifted rather than risk an adverse court ruling on the propriety of such gag orders in the first place.

Lessons for Future Gag Orders

Should we be content with the precedent set for free speech because passionate journalism succeeded in getting this gag order set aside?  Or should we try to learn from this experience through a thorough investigation of the precise reasons why the US Attorney’s office believed that it was necessary to curb public disclosure of the grand jury subpoena.  Does that office, or does the Justice Department generally, have any guidelines governing applications for gag orders of this sort?  Are their any guidelines about the circumstances under which it is appropriate for AUSA’s to throw their weight around by threatening to investigate subpoena recipients for interfering with a criminal investigation (thus securing an informal gag order through intimidation)?  Should there be such guidelines?  If there are guidelines, did the AUSA in this case follow them (and does that mean that the guidelines need to be tightened)?  This might well be an apt subject for investigation by a congressional government oversight committee or judiciary committee.