Earlier this month, the District Attorney for Bronx County, New York, withdrew a subpoena seeking the identities of anonymous posters on political blog Room Eight. The posters had criticized local politicians and Bronx Republican Party officials in blog posts and comments. District Attorney Robert T. Johnson also freed Room Eight operators Gur Tsabar and Ben Smith from the subpoena's demand that they not reveal the subpoena's existence to anyone - including the anonymous posters. (See our Legal Threats Database entry regarding the subpoena for more background.)
While the D.A.'s withdrawal of the subpoena and non-disclosure demand is great news for the anonymous posters, it is disappointing that the court didn't have a chance to issue a decision on Room Eight's motion to quash the subpoena. This would have been a great opportunity to establish precedent on a couple of important First Amendment issues of concern to citizen media.
First, this is a rare example of a criminal grand jury subpoena - as opposed to a subpoena issued in a civil lawsuit - seeking to reveal the identity of anonymous online speakers. It is an open question whether the government must comply with the same protections for anonymous speech in the criminal context as do parties in civil litigation seeking the indentity of anonymous speakers. Room Eight's motion to quash the subpoena, which was filed by the Public Citizen Litigation Group, does a great job of explaining this issue -- it should be required reading for anyone interested in online anonymity.
Second, the controversy around the subpoena raises the question of whether it is constitutional for the government to preclude a subpoena recipient from disclosing the subpoena -- or, more narrowly, whether the government can preclude disclosure when doing so would make it impossible for an anonymous user to protect his First Amendment right to speak anonymously. Over at Volokh Conspiracy, Orin Kerr posited that the government might not have the power to prevent subpoena recipients from discussing a subpoena. The resulting discussion is worth a read. It's unfortunate that the court didn't have the chance to consider this issue, because my intuition is that the implications for the right to speak anonymously would almost always trump the government's need to suppress discussion surrounding an investigation.
In any case, this situation provides another example of how attempts to impose legal consequences upon speakers can bring far more attention to their speech than the speech ever could have achieved on its own. In addition to warranting a New York Times article and a nod at Volokh Conspiracy, the controversy drove visitors to Room Eight in such high numbers that the site has been inaccessible for long stretches of time since word of the subpoena got out. And while some or all of the disputed postings were deleted from the site, they are now part of the public record and easily accessible to anyone who has become interested.
(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)