The Las Vegas Review-Journal [LVRJ] says it has been served a federal grand jury subpoena seeking information about 175 readers who posted comments on the paper's Web site. LVRJ editor, Thomas Mitchell, said they planned to fight the request, which the newspaper received after reporting on a federal tax fraud case against business owner Robert Kahre.
Most of the reader's comments were written under pseudonyms. Along with the real names of people who posted comments, the June 2 subpoena asks the newspaper for the writer's gender, birth date, physical address, telephone number, Internet service provider, IP address, and credit card numbers.
The courts have generally protected anonymous speech online, though US courts are not fully aligned on exactly where the line should be drawn.
LVRJ said it received the subpoena requesting all the names and personal information after its story describing the government’s case against Kahre, a Las Vegas construction company executive accused of paying contractors with gold and silver US coins based on the precious metal value of the coins, but using the much lower face value of the coins for tax purposes. Kahre and the other defendants have pleaded not guilty.
This particular dispute also has an element of an extended dispute between Mr. Kahre and the Assistant US Attorney in Nevada, J. Gregory Damm. He is prosecuting Kahre and others on charges that include income tax evasion, fraud, and criminal conspiracy.
Two years ago, Damm prosecuted a similar tax case against nine defendants, including Kahre. The trial ended with no convictions and four acquittals.
In 2007, Kahre sued Damm again and agents of the FBI and IRS, alleging criminal behavior. U.S. District Court Judge David Ezra dismissed the complaint in December, and Kahre appealed to the 9th U.S. Circuit Court of Appeals.
After a 2003 raid on Kahre’s business, Kahre and several of his workers sued Damm, two Internal Revenue Service agents and others who were involved because of false arrest. That civil matter is pending.
Several of the reader's comments on the LVRJ story alluded to (or directly described) physical violence against those who might convict Kahre. Editor Mitchell and the newspaper never got far enough to seek to quash the subpoena, however, because on Tuesday the newspaper's attorneys received a revised subpoena. Mitchell said it was to the prosecutors' credit that they realized their initial request might be overly broad and have a chilling effect on public debate of an important topic.
Roger Myers, a San Francisco lawyer retained by the newspaper to prepare a motion to quash said that it is to the paper's credit that it decided to fight which got the government to back way down.
The American Civil Liberties Union of Nevada [ACLU] still believes that the request is unreasonable. "We don't think any of the comments we've seen are the appropriate target of government inquiry," ACLU staff attorney Margaret McLetchie told the LVRJ. McLetchie said that "the right to speak anonymously about politics is older than the Constitution," alluding to the Federalist and anti-Federalist papers, which were published under pseudonyms. The actual authors were the Nation's Founding Fathers, Alexander Hamilton, James Madison, and John Jay.
The ACLU has moved forward with its own motion to quash the subpoena in hopes of having it declared unconstitutional.
In a similar situation, September 2008, Montana District Court Judge, G. Todd Baugh, granted a motion filed by The Billings Gazette to quash a subpoena that sought information that might lead to the identity of those who post comments on the newspaper's online edition.
Judge Baugh found in this case that the Montana shield law which protects reporters from disclosing anonymous sources also protects the identity of those making anonymous comments on a newspaper's Web site.
In 2005, Apple Computer sued unknown individuals who leaked information about an unreleased product. To obtain the identity of the individuals, Apple issued subpoenas to the Web sites that posted the information. The first judge approved Apple’s request that the ISP’s involved provide the IP addresses of everyone they provided service for.
In May 2006, California’s 6th District Court of Appeal reversed the lower court and held that the online reporters and bloggers are entitled to protection under California’s shield law and that they do not have to reveal their sources. The unanimous three-judge appeals panel also ruled that the online reporters are protected by the First Amendment and basically are the same as “traditional” journalists. The court wrote that if their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.
In contrast to the rulings in the US, on Tuesday the High Court in London ruled that bloggers have no right to privacy under British law since blogging is essentially a public rather than a private activity.
The case was brought by The Times, a London newspaper, after it discovered the identity of a blogger in the police service who wrote the popular NightJack blog, which was awarded the Orwell Prize for political writing in April 2009.
The author, Richard Horton, a detective constable with Lancashire Constabulary, had sought an injunction to stop the paper from releasing his name, but his application was denied.
The Times reported that Mister Justice Eady said “it would seem to be quite legitimate for the public to be told who it was who was choosing to make, in some instances quite serious criticisms of police activities and, if it be the case, that frequent infringements of police discipline regulations were taking place.”
The following related cases in the US are listed at First Amendment Center:
- Yale students I.D. man who allegedly defamed them.
- Move renews debate about whether anonymous Internet scribes should be outed - and held legally responsible - for malicious online postings.
- Subpoena seeks to unmask anonymous bloggers.
- Oklahoma Web site operator says he won’t cooperate with order and that all posts at issue were critical of local district attorney.
- San Diego reporter told to testify in Marine trial.
- Military judge holds that the testimony Union-Tribune's Rick Rogers could provide is crucial, not confidential, unobtainable elsewhere and not protected by shield law.
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