New York v. Tsabar [1]

Bronx District Attorney Robert T. Johnson issued a grand jury subpoena to New York political blog Room Eight [2] seeking identifying information for several anonymous bloggers and commentors. The subpoena ordered Room Eight operators Gur Tsabar and Ben Smith not to disclose the subpoena's existence -- not even to the anonymous posters -- because doing so could "impede the investigation" and "interfere with law enforcement."

In the disputed posts, Room Eight posters using the pseudonyms "Republican Dissident" (RD), "Dissident Hunter," and "Anonymous" criticized local politicians and Bronx Republican Party officials. According to copies of posts attached to the subpoena [3], a poster accused Bronx Board of Elections Commissioner J.C. Polanco and board employee Dawn Sandow of having an extramarital affair and other posters accused them of committing misdeeds. Many of the posts focused on Sandow, including one that included a graphic of a witch flying on a broom and told her to "HAVE A NICE FLIGHT" (caps in the original). Other postings attached to the subpoena alleged that Bronx Republican Party official Jay Savino and other local politicians and officials had engaged in fraudulent and illegal activities.

According to Room Eight's court filings [4], anonymous poster "Republican Dissident" also criticized the Bronx Republican Party for failing to run candidates against District Attorney Johnson, the D.A. who issued the subpoena to Room Eight. However, the District Attorney did not include these posts when he sent the subpoena requesting the information from Room Eight.

Following receipt of the subpoena, Tsabar and Smith sought permission from the D.A.'s Office to notify the anonymous posters about the subpoena so they could object to the revelation of their identifying information. Negotiations between the parties failed, so the non-disclosure demand remained in force.

On May 22, 2008, Tsabar and Smith moved to quash the subpoena [5] in the Supreme Court of New York for Bronx County. They argued that the subpoena threatened the posters' First Amendment right to speak anonymously, analogizing to numerous civil cases protecting online anonymity rights in the context of subpoenas. According to Public Citizen [6], counsel for Tsabar and Smith, Room Eight also threatened [6] to file a federal suit on the ground that the threat of criminal prosection violated the posters' right to criticized the District Attorney.

After Room Eight filed its motion to quash, Johnson withdrew the subpoena. Public Citizen advised the D.A. that it still would file suit if he intended that the subpoena's non-disclosure language remain in force. The D.A. then freed the defendants [7] to disclose information regarding the subpoenas.