Sept. 4, 2008
City of Memphis Drops Subpoena Against Anonymous Blogger; Decision is a Victory for Freedom of Speech
Statement of Paul Alan Levy, attorney, Public Citizen*
The City of Memphis and Police Director Larry Godwin have finally realized that their attempt to unmask an anonymous blogger was not only misguided, it was unconstitutional. By withdrawing their subpoena to America Online demanding the identification of the blogger behind MPD Enforcer 2.0, Godwin and the city have effectively conceded that the First Amendment protects the right of anonymous speech.
The city had originally filed a secret petition for leave to take discovery in the Chancery Court for Shelby County, Tennessee, deliberately not giving any notice to the anonymous blogger in order to ensure that no contrary arguments would be presented. However, because AOL is located in Virginia, the plaintiffs had to obtain a Virginia court subpoena and AOL, following Virginia law, provided notice to the blogger who promptly opposed the subpoena. The contents of the secret petition were revealed when Memphis reporters discovered that plaintiffs had neglected to file their request for the Virginia subpoena under seal.
Courts across the country have held that plaintiffs cannot identify their Internet critics simply by issuing subpoenas – they have to show that their suit has merit. The plaintiffs here, confronted with this rule, recognized that they could not show any right to sue the blogger for publishing photographs of the police chief and of a former undercover police officer, as well as of parodies of the department’s ‘Blue Crush’ slogan. The city’s acknowledgment that it could not enforce its subpoena represents a victory both for the right of anonymous speech and for good sense.
READ the city’s notice, which does not provide any explanation for the withdrawal.
*Paul Alan Levy is the Public Citizen attorney who represents the anonymous blogger. Memphis co-counsel for the blogger are Lucian T. Pera and Brian S. Faughnan of Adams and Reese LLP.