ACLU appeals ruling in Review-Journal subpoena case

Litigation continues about the right to anonymously post disparaging comments online about a Las Vegas-based jury and prosecutor.

The American Civil Liberties Union of Nevada has filed an appeal of federal Judge Kent Dawson’s October decision to not examine the legality of subpoenas served last summer on the Las Vegas Review-Journal to identify who wrote the comments, which had appeared on the newspaper’s Web site.

The government “shouldn’t be permitted to go on a fishing expedition,” the ACLU’s Margaret McLetchie said today on behalf of four anonymous clients who had posted comments. “It took the bravery of the Review-Journal to let the four (John) Does know” that prosecutors were seeking personal information on them, she added. Rarely do subpoena recipients publicize such government efforts to extract information.

The civil rights organization is appealing to have a higher court declare that the two past subpoenas were unconstitutional, even though one was withdrawn and the other has already reaped a harvest of personal data for prosecutors to use in tracking the authors of two specific comments.

In October, Dawson dismissed the ACLU’s effort to intervene as “moot,” or no longer relevant. But the ACLU argues that prosecutors could still be forced by a court to return the data to the newspaper and cease any ongoing search to locate the authors.

The first grand jury subpoena had requested information with which prosecutors could track all the people — about 100 — who had, at that point, commented on the case.

The Review-Journal opposed that subpoena. But the newspaper later complied when prosecutors issued a replacement subpoena that narrowed their focus to the authors of only two comments.

All the posts dealt with the criminal prosecutions of Robert Kahre and three others on charges of federal tax evasion, fraud and conspiracy.

One of the targeted comments said that if jury members convicted Kahre, they were “dummies” who “should be hung.” The other commenter wanted to wager fictional “Star Trek” money that Christopher Maietta, who helped prosecute Kahre, would not reach his next birthday.

The trial ended in August with the four defendants convicted on most counts. The defendants are scheduled to be sentenced in late November, though several have filed motions for retrial or for judgments to be set aside.

In his dismissal, Dawson cited case law to show that a grand jury is “entitled to elicit information step by step to decide whether (a commenter) was speaking rhetorically” or making a true threat. The judge justified the second subpoena as a way to protect a jury from “attempts of criminal jury tampering through threats or intimidation.”

On appeal, the ACLU intends to raise “whether the First Amendment limits the U.S. Attorney’s Office’s ability to subpoena the identities of anonymous commenters criticizing the government,” according to the docketing statement that the ACLU filed last week with its notice of appeal.

The docketing statement also said the ACLU is raising “whether (Dawson) erred in dismissing as moot” the question of the subpoenas’ constitutionality.

An appellate review of Dawson’s decision would provide guidance both for drawing up subpoenas relating to online content and for defending free speech and privacy rights.

Contact reporter Joan Whitely at joanwhitely@reviewjournal.com or (702) 383-0268.

 

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