by Paul Alan Levy
Setting a new record for imperiousness, Shelby County, a government body in the southwestern corner of Tennessee that contains the city of Memphis, has subpoenaed Memphis’ daily newspaper, the Commercial Appeal, seeking to identify the authors of roughly ten thousand anonymous comments that have been posted to 45 different stories on the paper’s web site. It is hard to square this subpoena with long-established protections for the right to speak anonymously.
The subpoena arises out of a controversy about a proposed consolidation of school districts sought by the county commission. The consolidation has been highly controversial, and attracted extensive coverage by the local media, including many stories in the Commercial Appeal. The comments section of the various Commercial Appeal stories came to be a significant forum for community discussion of the issue. The debate raged in heated terms, with a number of comments reflecting racist views, as some citizens opposed the proposed consolidation because they were afraid that it would increase their children’s exposure to black children. Some comments were posted in sufficiently uncouth terms that the Commercial Appeal removed them for violation of the web site’s terms of service. Eventually the Tennessee Legislature passed a law that interfered with the consolidation plan, authorizing local jurisdictions to vote on whether to establish their own school districts, and Shelby County has sued to block the law, claiming that its purpose is to perpetuate segregation.
Although Shelby County has yet to articulate its precise reason for seeking the subpoena, our best guess is that the identities are being sought to help prove the discriminatory animus behind the legislation. The argument appears to be that, if the comments identify particular members of the public as racist, and if other evidence shows that those same members of the public urged their legislative representatives to pass the anti-consolidation bill, the citizen advocates’ racist views can then be attributed to the legislation which therefore can be struck down.
The spectre of public officials compelling their own constituents to answer before a court reporter, under oath, questions about their motivations for communicating with state legislators, is a repelling one. But even that can be done by finding out who communicated with the legislature, and examining the contents of those communications, not by subpoenaing a newspaper to identify the people who used the newspaper's own forum.
The Commercial Appeal, standing on its own First Amendment rights as well as the rights of customers who have registered to post comments on its web site, has served Rule 45 objections to the subpoena. The objections, which I signed along with Lucian Pera, long-time counsel to the Commercial Appeal, argue that this theory – assuming that it is the basis for the subpoena – is not a sufficient reason for depriving members of the public of the First Amendment right to debate the propriety of government policy on an anonymous basis. In addition, we argue that because the subpoenas have been issued by government bodies, they are precluded by federal statutes that limit government access to such information to cases involving a probability of criminal wrongdoing. Indeed, the very same firm that is representing Shelby County was forced to withdraw a subpoena on behalf of the City of Memphis, seeking to identify a blogger who criticized the city's police chief, for the same statutory reasons.
A new high for subpoenas to anonymous speakers
Even apart from the question whether the legal theory behind the subpoena can meet the test of a compelling state interest, needed to overcome the right to speak anonymously, is the sheer indiscriminateness of the subpoena, seeking to identify everybody who spoke about the issue underlying the legislation regardless of whether they favored the consolidation or opposed it, and whether they expressed racist views or not. In past cases involving Doe subpoenas, it has often seemed to me that the plaintiff had the germ of a good case, and perhaps a reason to identify one or two critics, but then obscured the merit of its case by throwing everything but the kitchen sink into the subpoena. Here, the very breadth of the subpoena suggests that County's motive is to chill public discussion of an important policy question, by sending the message that if you speak out, you will be subpoenaed.
In the dozen years that I have been litigating cases involving Internet anonymity, I cannot recall any case involving close to so many anonymous speakers. In Pilchesky v. Gatelli, the chair of the Scranton Pennsylvania City Council sought to identify about ninety different Scranton citizens who has posted hurtful comments about her on a community message board established by one of her critics, and in Donato v. Moldow, officials of the Borough of Emerson, New Jersey sought to identify the authors of more than one hundred critical comments. In both of these cases, the trial courts upheld the right to speak anonymously and quashed the subpoenas (with a small number of exceptions in the Pennsylvania case – and those identities were preserved on appeal). A large number of posters were also involved in my first case involving a subpoena to identify anonymous speakers, when Northwest Airlines sought to identify flight attendants who had advocated a "sickout" during collective bargaining negotiations.
Shelby County subpoena outstrips these cases in indiscriminateness by a factor of ten or even a hundred – more than 9300 comments remain on the stories, and the removed comments likely take the number of comments at stake in this case beyond ten thousand. Many of the comments were posted by repeat customers (we can tell because, as on most newspaper web sites, only registered users can post comments), but the estimate so far is that more than 2000 separate people are facing possible denial of the right to speak anonymously. Even most file-sharing cases pale by comparison: the recording or movie companies typically sue and seek to identify only hundreds of anonymous uploaders at a time.