ENTERTAINMENT LITIGATION: THE FIRST AMENDMENT ISN’T WHAT IT USED TO BE

AGGRESSIVE GOVERNMENT TACTICS PUT ALL MEDIA INCREASINGLY AT RISK

Recently, news media organizations have faced government pressure to reveal sources or other information or face criminal prosecution. The most infamous of these cases involved Judith Miller of the New York Times. Miller went to jail when she refused to reveal her confidential source for a news story in connection with a grand jury investigation. (Another reporter working for Time magazine agreed at the last minute to reveal his confidential source when his source gave him permission to do so.)

Yesterday’s New York Times reveals a new tactic — a government investigative subpoena which also threatens prosecution of the target for the mere disclosure of the subpoena. Apparently, the First Amendment is not what it used to be.

NY PROSECUTORS TARGET ANONYMOUS BLOGGERS

The Times’ story concerns prosecutors in New York who issued a subpoena in order to obtain personal information about bloggers who posted anonymously on a NY political blog called “Room 8.” The subpoena contained a warning that disclosure of the subpoena itself could supposedly “impede” or otherwise “interfere” with the investigation. Of course that warning was a not-so-veiled threat that any such disclosure could subject the offender to criminal prosecution.

The actual purpose of the investigation, the targets of that investigation and the substance of the information sought by the subpoena are not as important to me as the tactic that the disclosure of the subpoena itself could subject the blog operators to criminal liability. Obviously, the NY prosecutors intended that their demand for silence, with the threat of prosecution, would prevent the blog operators from warning their users that they may be the subject of an investigation. However, the prosecutors refused to communicate to the blog operators the purpose of the subpoena or the relevance of the information they were seeking. The prosecutors simply demanded compliance — and silence — under the threat of potential prosecution.

The Room 8 operators promptly retained counsel, on a pro bono basis, to resist the subpoena. And like the federal prosecutors in the Miller case, the NY prosecutors withdrew their subpoena as soon as it became clear that their efforts to obtain confidential user information would be strenuously contested.

RESISTANCE NEED NOT BE FUTILE

Those of us who write blogs or publish in any media can take a page from these admittedly extreme cases of government aggression. Fight. Naturally, the path of least resistance dictates that you comply with whatever subpoena or request for information that comes your way even if that information should be protected by the First Amendment. However, no matter how it seems, compliance is not without cost — i.e. the erosion of our rights of free speech and personal privacy.

I have represented media companies in cases where the cost far outweighed the actual amounts in dispute in the litigation. My clients did not immediately settle those cases for the simple reason that the First Amendment principles were more important than the money it cost to prosecute/defend the actions. The lesson that the Room 8 bloggers and Judith Miller provides is that attacks on our free speech and personal privacy should be resisted despite the obvious financial and personal burden. Even if resources are scarce, like it was for Room 8, effective counsel must be retained to fight for these principles. Creative use of cost-reimbursing statutes like the anti-SLAPP statute could also help.

But as the Room 8 and Miller cases show, resistance is not always futile.