Is this cartoon, originally posted to the satirical Facebook page Benito Beet Beat, a true threat that is outside the protection of the First Amendment?
That is what the County of San Benito California contends. The county sheriff proclaimed to the press that he was investigating the cartoon as a potential crime; even though the cartoon was taken down, the county supervisors unanimously voted to seize on the cartoon as an excuse to send an administrative subpoena to Meta, seeking to identify the authors of the page, who have posted a series of sharply worded cartoons pillorying the supervisors. This cartoon was occasioned by a county council decision to cut funding for security at the county’s behavioral health clinic.
Rather than waiting to receive notice of the subpoena from Facebook and then moving to quash the subpoena in a local count, the page’s anonymous authors, represented by California’s First Amendment Coalition, sued as John Doe plaintiffs under section 1983, alleging that compelled identification would violate both their First Amendment right to speak anonymously and the Stored Communications Act. Plaintiffs sought a TRO, and a Zoom hearing was held the day before Thanksgiving.
The argument was a classic mismatch – FAC’s legal director David Loy delivered an excellent argument, while the county counsel avoided being humiliated by assigning the argument to a young lawyer who was plainly not up the job. She apparently did not read the signals from the judge that the TRO was going to be granted, and hence declined the lifeline of suspending the subpoena while the defense had an opportunity to brief the issue (or, even better, withdraw the subpoena). And she made some apparent misrepresentations, claiming that the threatening character of the cartoon was exacerbated by the fact that the plaintiffs had posted the supervisor’s home addressed to the Facebook page – I scrolled through the page during her argument and could not find that; after the hearing I asked the county’s lawyer to show me where the addresses could be seen on the Facebook page, and received no response. She also contended that, during the hearing, supervisors had expressed a genuine concern about their safety, representing that she had a four-minute video showing that. But she did not play the video during the hearing, and did not respond to my request to view the video. The lawyer also contended that her client needed to identify the Doe speakers so that it could move for a civil protection order, but that is plainly not so — assuming the county has standing to seek a civil protection order for its elected officials, it could sue the speakers as Doe defendants, then seek civil process to identify the defendants. That course of action, of course, would risk an award of attorney fees under California’s anti-SLAPP law.
Magistrate Judge Virginia Marchi granted a TRO orally at the hearing, directing the county to notify Meta of her order, and entered a short opinion later that evening. She did not need to reach the balancing stage that Northern District of California precedent requires when deciding whether to allow compelled identification of anonymous speakers because the protected nature of the cartoon was so obvious.
It strikes me that the county’s refusal to drop its subpoena upon receipt of the First Amendment Coalition’s demand letter, was terrible judgment, not least because the litigation is sure to draw much greater attention to the cartoon which was removed from the Facebook page but has now been filed in the court record. Indeed, this case was the best way for the supervisors to draw public attention to the Benito Beet Beat. Did the county’s counsel warn his clients about the Streisand Effect?
