by Paul Alan Levy
Nearly five years after he withdrew subpoenas to Google seeking to identify four anonymous bloggers who commented on his expulsion from a rabbinical council and his dismissal from his synagogue over allegations that he had abused his religious authority to have sexual relations with congregants, Orthodox rabbi Mordechai Tendler has issued a new subpoena to Google demanding identification of the same bloggers (plus one more). Invoking the First Amendment’s protection for the right to speak anonymously and the many court decisions holding that compelled identification is impermissible without compelling reasons, the bloggers have moved to quash the subpoena.
In the 2006 proceedings, Tendler contended that he needed to know who the bloggers were so that he could sue them for defamation over such posts as this and this. After Public Citizen and EFF teamed up to seek to have his subpoena proceeding treated as a SLAPP suit, Tendler withdrew those subpoenas, but the California trial court still awarded attorney fees against Tendler for forcing the bloggers to defend themselves. This award was overturned on appeal, because the court held that a subpoena proceeding in support of a lawsuit in a different state is not a "cause of action" subject to the anti-SLAPP statute. Tendler then issued a press release proclaiming that he was free to reinstitute the subpoenas to pursue his defamation claims.
But the new subpoena has been issued in Tendler’s litigation over his discharge by the synagogue that he has issued the new subpoena, presumably in support of his claim for damages. An New York appellate court held that the synagogue’s dismissal of Tendler shortly before a rabbinical court approved his termination violated Tendler’s contract of employment, which required approval of a rabbinical tribunal before his position could be ended.
Because Tendler has refused to provide any justification for the subpoena, as New York law requires as a condition for subpoena to a third party, it is not clear how Tendler thinks identification will help him prove his contract damages against the synagogue or whether, indeed, he is going to try arguing that he needs the names to sue the bloggers. The latter approach seems problematic not only for the reasons why his original subpoenas could not be enforced, but also because the statute of limitations for defamation claims is one year, and the bloggers have had nothing to say about Tendler for several years.
Perhaps the most significant oddity of the new subpoenas is what Tendler hoped to accomplish. Because the blogs have been inactive for years, that Google’s efforts to notify the bloggers of the new subpoena were unsuccessful. The new subpoenas seem more likely to draw renewed public attention to the allegations about Tendler’s abuses several years ago than to further his litigation interests.