by Paul Alan Levy
Not much, it appears.
Following up on the recent spate of stories about a grand jury subpoena that the United States Attorney’s office for the Southern District of New York had issued to Reason Magazine, demanding the identities of the authors over several commenters who called for the execution of a federal judge in that district, and about a subsequent gag order that forbade Reason from telling anybody about the subpoena, I asked Assistant United States Attorney Niketh Velamoor for his office’s consent to a motion to unseal the application for the gag order, invoking the First Amendment and common law right of access to judicial records. I wanted to see the basis for requesting the gag order – the factual showings that supported its issuance – because the order itself was so cursory in reciting the statutory factors and saying that “one or more of [them]” was the basis for issuance.
Velamoor’s initial response was unhelpful, but he later called me back to ask me to explain the legal basis for the demand; once he understood what the law is (and, presumably, he figured out that Public Citizen has a track record of litigating unsealing issues), he asked the court to unseal the application and sent it to me. He assured me that there was no oral hearing on the application, hence no basis for a motion to unseal a transcript.
The Application Contains Only Boilerplate
The application is here. Submitted New York style in the form of an affidavit from AUSA requesting it, the application includes an averment that the basis for the gag order was that “the subpoena relates to an ongoing criminal investigation . . ., the account holder is suspected of being involved with or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account holder or to any other person may alert subjects or targets of the ongoing investigation [who in turn might] flee or avoid prosecution or tamper with evidence, including electronically stored information that is easily tampered with.”
At this level of generality, such a claim could be made about just about any subpoena, but the courts have generally been skeptical of claims by federal prosecutors that they can flatly forbid witnesses before the grand jury from disclosing what they have been asked. The leading case, from the First Circuit, summarized the case law as being divided between courts that read Federal Rule of Criminal Procedure 6(e)(2) as flatly forbidding the imposition of secrecy requirements on grand jury witnesses, and those that allow restrictions only on a demonstration of “compelling necessity … shown with particularity.” It is hard to see Velamoor’s affidavit as meeting that standard. The basis for the gag order is a statute specific to subpoenas to ISP's, but Ken White has collected a number of cases in which trial judges have demanded specific showings before issuing gag orders to ISP’s in particular. Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.
In addition to seeking consent to unsealing of the application itself, I have sent a Freedom of Information request asking for all guidelines used in the Southern District, or issued to US Attorneys, that instruct government prosecutors about how to decide whether to seek such gag orders. I’ll report further if I get any substantive responses to the request (so far, I have been told only that the request is “complex” and so will take a long time to answer). Meanwhile, I do think that members of Congress who care about freedom of speech ought to consider launching their own investigation into how this U.S. Attorney’s office decides, and how the Justice Department as a whole decides, whether to seek judicial orders suppressing speech by subpoena recipients and especially journalists, and thus to decide whether amendments to the statute allowing gag orders are needed.
Light Shed on the Reasons for the Subpoena to Reason
When I first blogged about this situation, I indicated that I had less sympathy with the complaints about the subpoena itself. Several bloggers, including Ken White who broke this story on Popehat, observed that the anonymous comments whose authors the government was seeking to identify were not ”true threats” which could themselves be subject to prosecution. He repeated that point in a recent interview posted on Reason’s web site. I agreed with that analysis; in addition, none of the statements incited unlawful action that was so imminent and likely as to be punishable under the standards of Brandenburg v. Ohio. But my view then was that given the physical dangers that federal judges face from criminals who are unhappy about their rulings, including the threat of assassination, it is hard to blame federal prosecutors from taking it seriously when they see that people are talking about killing federal judges.
This reaction is reinforced by the application itself, which does not suggest that the subpoena was sought because the postings were, themselves, criminal. The application says, under oath, that there is an “ongoing criminal investigation” (into a conspiracy to kill federal judges?) and that the account holder (the singular here is peculiar) “is suspected of being involved with or associated with persons involved in the conduct under investigation.” Now, to be sure, the fact that people talked in broad terms about killing federal judges, posting their comments in a highly public forum, does not mean that they are likely to act on their word; but if you are investigating a conspiracy to kill federal judges, it certainly makes sense to talk to people who are advocating just that. Velamoor swears under oath that this is why the subpoena was needed, and I note that although Ken White initially accused him of dissembling about the current existence of a gag order, he eventually recognized that Velamoor had been very careful about what he said, and apologized for the accusation.
The First Amendment does speak to the question of how a government's criminal investigations should extend to surveillance and other pursuit of ideological adversaries of the current elected officials, but the First Amendment should also not prevent criminal investigations into possible violent actions in pursuit of such ideologies — and we know all too well that there are people willing to employ unlawful violence in pursuit of a variety of ideas. Perhaps Ken White or others who have been prosecutors can discuss what meaning they give the term “ongoing criminal investigation” and the asserted relationship between that investigation and the subpoena — I bring a perspective far from the practice of criminal law on either side of the v. But in assessing the basis for this subpoena, it seems to me we have to take Velamoor’s affidavit explaining it at face value, although the inclusion of the identity of the commenter who said nothing more than that the judge should have a special place in hell still strikes me as incomprehensible.
If the statement here included discussions of places at large office buildings in New York City where explosives could best be inserted to bring the buildings down, or a discussion of the places along the Boston Marathon route where bombs should be planted to effect maximum injury, I don’t know that anyone would complain if a criminal investigative resources, including grand jury subpoenas, were used to identify the speakers to see whether they know about any real planning. In fact, if we were to learn today that such comments were posted in July 2001 or February 2013, and that the government did nothing to investigate, I expect there would be hell to pay.
The New York Times recently carried a report about white supremacist web sites; it mentioned law enforcement visits to talk to owners of web sites where commenters rant about blacks and Jews for the professed purpose of investigating whether Dylann Roof had associates in his murderous enterprise. One owner was cited as expressing concern about having his commenters’ speech chilled by such investigations. The rants are protected by the First Amendment, but should we object when law enforcement officials want to interview the authors i
n the course of when looking for those who do more than rant?