Unreasonable restriction

AP Photo/Elizabeth Williams

Threats against U.S. District Judge Katherine B. Forrest by commenters on the Reason.com web site led to a subpoena and a gag order about the investigation.

A subpoena issued to Reason.com in June for the identities of six of its commenters raised eyebrows when it was revealed that the U.S. Attorney’s Office followed the subpoena with a highly restrictive gag order on the news organization.

While no authorization from the Attorney General is required under the Attorney General’s media subpoena guidelines when seeking information from the media on public comments and posts on websites, some are questioning whether the media was given enough deference in the matter of the gag order.

The subpoena, issued by the U.S. Attorney’s Office for the Southern District of New York on June 2, ordered Reason to turn over identifying information for six anonymous commenters who had posted negative comments about the judge who imposed a harsh sentence on Silk Road founder Ross Ulbricht. The subpoena was accompanied by a letter from Assistant U.S. Attorney Niketh Velamoor, requesting that Reason voluntarily refrain from disclosing the existence of the subpoena to any third party. Gayle Sproul, Reason’s attorney, informed Velamoor that Reason planned to notify the six commenters of the subpoena so that they would have the opportunity to defend their First Amendment rights to comment. After they had been informed, Velamoor delivered a gag order that forbade Reason from notifying third parties about the subpoena. But since the subpoena had already had a limited release, other news organizations were able to report on its existence, with the result that, on June 19, a judge lifted the gag order.

Under the recently revised Attorney General media subpoena guidelines, found at 28 C.F.R. § 50.10, there is an exception to the requirement that the Attorney General authorize a subpoena to the media when the subpoena seeks “information related to public comments, messages, or postings by readers, viewers, customers, or subscribers, over which the member of the news media does not exercise editorial control prior to publication.”

The Reporters Committee led a coalition of over 50 media organizations in working with the Justice Department to revise its media subpoena guidelines following the controversies in 2013 over the seizure of the Associated Press phone records and a search warrant for a Fox News reporter’s email. Working with Justice throughout 2013 and 2014, the coalition had many of its concerns addressed, and revisions to the guidelines were issued in February 2014 and January 2015. Under the resulting guidelines, there are more reminders to U.S. Attorneys to respect the freedom of the press and think twice before issuing subpoenas to members of the media.

While the third-party subpoena was exempt from the regulations, there are still questions about whether the guidelines should have protected Reason from the gag order.

Sproul, Reason’s attorney and a partner at Levine Sullivan Koch & Schulz, LLP, said she saw the gag order as a violation of the spirit of the guidelines. The initial letter had not required Reason to refrain from disclosure, just asked them to do so voluntarily, and the Assistant U.S. Attorney’s unwillingness to discuss either narrowing the subpoena or allowing disclosure to the targeted parties was especially galling.

“The spirit of the guidelines is that there’s sensitivity to obtaining information from the press and putting pressure on the media,” Sproul said. “In the spirit of all sorts of goodwill, generally speaking, prosecutors, like any other lawyer, will listen to you if you have something to say.”

Sproul pointed out that the fact that the Assistant U.S. Attorney had not sought a non-disclosure order to be delivered simultaneously with the subpoena suggests that it is unlikely that disclosure would significantly harm the investigation or other interests. Since the initial letter technically left the door open for Reason to disclose the subpoena, the magazine was well within its rights to do so before it received the gag order, she said.

The U.S. Attorney’s Office declined an invitation to comment on the case or the decision to seek a gag order.

Paul Alan Levy, an attorney with Public Citizen, said there should be some check on an individual Assistant U.S. Attorney’s ability to simply request and receive a gag order on media organizations. After news of the gag order broke, Levy contacted Velamoor and asked that his office’s application for a gag order be unsealed. After Velamoor sent him the application, it was apparent that the gag order was granted simply on the basis of the general claim that there was an ongoing criminal investigation, and without a gag order, the targets might flee. There was no requirement of any additional specific showing of need, Levy said, and no internal guidelines preventing gag orders from being abused.

“I think you can impose some level of approval above the assistant U.S. attorney,” Levy said. “Whether it ought to be the U.S. Attorney him or herself, who’s a confirmed appointee, or whether it ought to be someone at a higher level in the Justice Department, that seems to me to make sense.”

These safeguards are necessary because of “the important value being contravened by the entrance of such a gag order,” he said.

And while some members of the news media may not see important interest at stake in shielding anonymous commenters from a legitimate investigation, being ordered to stay silent is a much more serious concern.