Legal News

Did DA?s Subpoena Bind Bloggers to Silence?

By Dan Slater

Earlier this year, Bronx prosecutors sent a subpoena to Ben Smith and Gur Tsabar, founders of Room 8, a Web site about New York politics that includes a blog.

Credit: iStock Photo

According to this story in today’s NYT, the subpoena carried a warning that disclosing the subpoena’s existence “could impede the investigation being conducted and thereby interfere with law enforcement.” The DA eventually withdrew the subpoena and lifted the gag requirement after Smith and Tsabar threatened to sue. But, the Times notes, the fact that the tactic was used at all raised alarm bells for some free speech advocates.

Over at the Volokh Conspiracy, GWU Prof Orin Kerr suggests those alarm bells are without reason. Kerr says “the government has no power (absent statutory authority, which would be subject to serious First Amendment challenge) to order the recipient of the subpoena not to disclose it.” He writes: “According to the Times story, ‘the subpoena carried a warning in capital letters that disclosing its very existence ‘could impede the investigation being conducted and thereby interfere with law enforcement’.’ No doubt this was written to create the impression that going public with the subpoena could lead to criminal prosecution. But my understanding is that, as a matter of law, it actually has no legal effect. Do others agree?”

Do you agree, LB Readers? The subpoena was withdrawn, so there won’t be a court decision on it. But can the government bind the targets of a subpoena to silence?

Full post as published by Law Blog - WSJ.com on July 15, 2008 (boomark / email).