The Freehold School Board has subpoenaed New Jersey Online to identify several citizens who chimed in to discuss stories published in the Newark Star Ledger and New Jersey Online about several high administrators who got fake degrees from an online diploma mill, and hence received higher pay. After New Jersey Online notified its subscribers of the subpoena, the ACLU of New Jersey and Freehold attorney Stuart J. Moskovitz stepped in to represent various anonymous posters, and NJ.com has refused to furnish identifying information about the posters. Moskovitz points out that the subpoena violates the Electronic Communications Privacy Act, which limits the ability of governmental entities to obtain information about online speakers.
I contacted Marc Zitomer, the School Board’s lawyer, to get his explanation for the subpoena.
His explanation was that the Board, as a body corporate, has the authority to file suit against members of the public who defame or threaten its staff. I rather doubt that a school board could file suit for defamatory words that are not “of and concerning” the school board – the of and concerning requirement, after all, is a constitutional requirement under New York Times v. Sullivan. Moreover, Zitomer conceded that he could not identify any cases in New Jersey where a school board had filed such an action on behalf of its staff. When I pressed him on these issues, Zitomer claimed that an additional reason for the subpoena was that the Board could take disciplinary action against any of the bloggers who were members of its staff. But even assuming that the criticism is a proper basis for discipline consistent with the First Amendment, the Board cannot compel the identification of bloggers on that theory without putting forward an evidentiary basis for believing that the bloggers are employees. It remains to be seen whether Zitomer will be able to do that.
Board member William Bruno has been quoted as justifying its subpoena on the theory that “If they have nothing to hide, what's the problem?” Apparently, the Board doesn’t understand that, under New Jersey’s Dendrite decision, the burden is on the Board to show a reasonable basis for claiming actionable wrongdoing before it can strip its citizens of the right to engage in anonymous criticisms. Zitomer told me that he was familiar with Dendrite's requirements; we can only hope that he brought them to the attention of the school board before the subpoena was issued.
Zitomer contacted us to ask that the link to Moskovitz's letter explaining why his subpoena is abusive be taken offline because Zitomer is at a new firm. We declined that request, but here is his new firm bio.