United States v. Does [1]

After anonymous users posted allegedly threatening comments to a Las Vegas Review-Journal (LVRJ) article [2] about an ongoing federal criminal trial (the "Kahre case"), the US Attorney in that case issued a grand jury subpoena seeking information about all public commenters on that thread.  On June 16, 2009, the subpoena was narrowed, seeking personal information related only to two comments from the LVRJ article.

The two comments at issue are as follows:

• "I bid 10 Quatloos that Christoper Maietta [one of the prosecutors in the Kahre case] does not celebrate his next birthday."
• "The sad thing is there are 12 dummies on the jury who will convict him.  They should also be hung along with the feds."

(Amended Mot. to Quash [3] 3).

On June 16, the ACLU of Nevada filed a motion to intervene on behalf of three John Does, along with motions to quash and for a protective order.  On June 22, amended versions [3] of all three motions were filed, and a fourth John Doe was added.  The ACLU maintains that the comments are protected speech under the First Amendment because they are "in no way revealing of any criminal activity."  (Amended Mot. to Quash 3-4.)

On June 18, between the ACLU's initial and amended motions to intervene and quash, the LVRJ complied with the narrowed subpoena and turned over identifying information to the US Attorney's office.  The US Attorney filed a motion to dismiss [4] on June 26, stating that the ACLU's motion to quash was moot.

In its July 13 response [5] to the US Attorney's motion to dismiss, the ACLU claims that the issue is not moot, as the court may still provide the Does with relief despite the LVRJ's compliance with the subpoena.  Specifically, they suggest the court might prevent the use of any information gleaned from the subpoena, order all personal information that resulted from the subpoena be destroyed, and/or issue a protective order to "prevent future abuses of the grand jury subpoena to obtain information about critics of the government's position in the Kahre case."  (Response to Mot. to Dismiss [5] 2.)