"...When He [Jesus] saw the crowds, he had compassion for them, because they were harassed and helpless, like sheep without a shepherd." Matt 9:36

"Do not rob the poor, because he is poor... for the Lord will take up their case and plunder those who plunder them." Proverbs 22:22-23

Thursday, December 9, 2010

Sheriff's Office Issues Training Bulletin on First Amendment Implications of Investigative Subpoenas

Last month the Jacksonville Sheriff's Office (JSO) issued a training bulletin (click here to read it) to all officers on the civil liability issues to be considered when they are requesting investigative subpoenas from the State Attorney's Office (SAO). The drafting and issuance of this training bulletin was part of the settlement of the First Amendment lawsuit this past October. The bulletin was drafted by Howard Maltz of the city's Office of General Council, who represented Detective Hinson in the lawsuit.

Part of the bulletin deals with blogging, Facebook, and Twitter, and acknowledges the First Amendment right that individuals have to remain anonymous. In our lawsuit, Federal Judge Marsha Morales Howard affirmed the existence of this right established by the Supreme Court, when she allowed the lawsuit to proceed this past April.

Perhaps JSO officers didn't know about the right to anonymous free speech, but thanks to this training bulletin, they know it now.

On page 3 of the bulletin, Maltz says:
"In today's world of Internet blogging, Facebook, Twitter, etc., officers must be cognizant of certain constitutional issues that could arise in seeking subpoenas for internet or telecommunications subscriber information. Some people communicate on the internet anonymously and investigations may involve determining the identity to solve crimes. The First Amendment of the Constitution provides for freedom of speech. The United States Supreme Court has held that the right to free speech includes the right of an individual to speak anonymously. Thus, if an officer seeks a subpoena to identity the author of anonymous speech, constitutional implications have to be taken into consideration."
This may be seem like a statement of the obvious and therefore not very profound or significant. Let me explain why the above is important to the citizens of Jacksonville. In the testimony given in our First Amendment lawsuit, by the undersheriff Frank Mackesy, the sheriff himself, Detective Hinson, Hinson's boss, and the state attorney - it was painfully obvious to me that neither the Jacksonville Sheriff's Office, nor the State Attorney's Office, took into consideration any constitutional implications of obtaining subpoenas from Comcast and Google to identify the FBC Jax Watchdog blogger in September 2008. Maltz is clearly saying that they MUST be considered.

Maltz continues:
"Courts have held that where the subpoena power collides with the First Amendment rights such at (sic) the right to free speech or anonymous speech, the government must be able to demonstrate 'an overriding and compelling interest in obtaining the material in the subpoena' or risk a determination that the constitution has been violated."
Absolutely. That was what the lawsuit testimony was about: did the JSO have the overriding and compelling interest in issuing subpoenas to get my identity? They argued they did - we argued they absolutely did not (our argument summarized in the motion for summary judgement), and the detective's own actions and testimony we believe showed the government absolutely did not have an overriding and compelling interest in my identity. The church sure did have an interest, but not the government.

And think about the other two bloggers whose personal information was subpoened by Hinson in this case: one was for Tiffany Croft - clearly NOT an anonymous blogger, blogging about the Darrel Gilyard fiasco - and the other was for the Bellevue Baptist anonymous blogger. What compelling governmental interest did the detective have when writing a subpoena for Tiffany Croft or a blogger in Memphis? What possible crime was being investigated? The detective testified that he realized he did not need their personal information until AFTER he had already issued the subpoenas to Google, and when he got their personal information he destroyed it immediately.

And this statement Maltz makes at the bottom of page 3:
"If in doubt regarding whether a sufficient basis exists for issuance of the subpoena, the officer should spend considerable time discussing the issues with the applicable State Attorney."
Amen. In our case, Hinson filled out a subpoena request form to obtain all available personal information from Google of myself, the Bellevue Baptist blogger, and Tiffany Croft. He sent them to the SAO office, where the SA signed them and shipped them off to Google. The state attorney testified that he did not have a recollection of signing them, and did not discuss them with Hinson, and to boot the SAO inadvertantly destroyed the request forms that were sent by Hinson. Hinson should have realized the First Amendment implications of these subpoenas to unmask two anonymous bloggers who had committed no crimes or never threatened to commit crimes, and should have spent "considerable time" discussing them with the State Attorney. From testimony in the case, he spent ZERO time discussing them with the State Attorney involved.

And when he discussed the First Amendment issues with the state attorney, perhaps Hinson should have also disclosed his glaring conflict of interest of being a church member, employee, deacon, and discipline committee member of the church that the blogger was criticizing. I think if Hinson had disclosed these conflicts of interest, the state attorney might not have signed them so readily, but we'll never know.

I thank Howard Maltz for drafting this bulletin and Sheriff Rutherford for realizing the importance of his officers understanding the First Amendment issues when it comes to investigative subpoenas in this Internet age. With this information being passed on to the JSO officers and detectives, accountability has been established.

I hope next the JSO strengthens their conflict of interest policy for their detectives.

22 comments:

Anonymous said...

You have absolutely NO RIGHT for anonymity! Be a man and come out in the OPEN!!!

Anonymous said...

8:32 AM
If you think that, why not be a man yourself and come out in the open instead of covering up under Anonymous ??? :>)

FBC Jax Watchdog said...

Anon 8:32: don't argue with me, brother. Take it up wit da Constitution and da Supreme Court.

Anonymous said...

Strange it took a lawsuit to teach government law enforcement officials about 1st Amendment rights of individuals.

Wonder what else they need to be trained on when it comes to our rights?

Anonymous said...

You have absolutely NO RIGHT for anonymity! Be a man and come out in the OPEN!!!

December 9, 2010 8:32 AM

Aren't we glad the authors of the Federalist Papers were allowed to publish anonymously. I guess they were not real men. (wink)

Anonymous said...

You have absolutely NO RIGHT for anonymity! Be a man and come out in the OPEN!!!

December 9, 2010 8:32 AM

BWAHAHA.

"Anonymous" says you have no right to be anonymous. "Anonymous" claims real men use their names. The irony is so delicious.

They are not a bright lot, are they?

Jeff said...

Tom,

I make no argument against the legal right to blog anonymously.

I'm being inquisitive, and not accusative, have you examined the scriptures to discern whether or not a Christian has a Biblical/Spiritual/Moral right to make anonymous charges?

Just asking?

Jeff

Thy Peace said...

Praise God for giving courage and persistence to Watchdog to pursue this case so some good will come out of it. My observation is that "hubris" has descended on politicians and law enforcement operatives after 9/11 to run roughshod over first amendment rights. Case in point the current controversy over the leaks. At this point I am fairly certain that politicians in both parties would not know what first amendment is if it came and bit them in their behind.

Vinny said...

Good to see a politician take a step in the direction of freedom and sanity, for once.

I almost laughed out loud at the anonymous commenter who blasted you for being anonymous.

It is my sincerest hope that businesses and governments will realize that it is sometimes morally prerogative to defy orders - no matter what the cost - that come from evil men.

Anonymous said...

Dog, just curious, what happened to det. Hinson? as he penalized, in any way? I think dismissal from law enforcement would have been appropriate. Too many time law enforcement officers think they are the "law".

Anonymous said...

"I'm being inquisitive, and not accusative, have you examined the scriptures to discern whether or not a Christian has a Biblical/Spiritual/Moral right to make anonymous charges?"

You think the author of Hebrews was anonymous because they were afraid of the Pharisees?

Where is the passage that says it is wrong?

I bet Jeff is either a pastor or a wannabe.

Anonymous said...

You think anon 8:32 was serious? I took it as tongue in cheek.

Jim said...

Jeff, hate to break the news to you but much of the Bible was written by "anonymous" persons. Biblical scholars continue to discuss the authorship of most of the New Testament.

Anonymous said...

Anon. Dec. 9, 8:32 AM must have been poking fun at the absurdity of some of the past posts. He/she could not be serious? If they were, a new standard for hypocrisy has been set.

Anonymous said...

If your comments are damaging and depriving others of their liberty, then what right do you have to remain anonymous?

If someone makes false, unfounded, or unproveable statements that cause another damage, should they remain anonymous?

I am confused. I thought the issue was how the Dog was uncovered. It seems to me that Brunson, or anyone, has the right to face their accusers.

It looks like the sherriff is not stoping investigators from checking out people who are suspected of misconduct just because they might be acquainted.

What am I missing here?

Anonymous said...

"What am I missing here?"

An understanding of the 1st Amendment.

Mac is a public personality. He chose it and wanted it. He has spent his career making himself known to the public. His public words can be analyzed and critiqued anonymously without fear of reprisal. Are his words from the pulpit public or not?

Mac does not agree. He does not want his public words critiqued. So, he tried to stop it. And by trying to do that, he spits on our constitution.

Of course, we could also discuss his unChristian response to his words being analyzed on a blog. In fact, if he would have ignored this blog, it probably would have fizzled out.

I am wondering if Jeff has considered Mac's "Biblical" response? AFter all, Mac is a paid professional Christian. Shouldn't he know better? But Jeff is not concerned with that. What paid professional Christians do is always right according to guys like Jeff. (probably in paid ministry himself)

FBC Jax Watchdog said...

Again, I want to clarify....the testimony in deposition was that Mac Brunson had absolutely nothing to do with the decision to issue trespass papers against me or my wife. In fact, Brunson said under oath that he told the discipline committee to "leave him alone". He didn't want them to do anything to me, he said. They went against the wishes of the pastor, apparently.

In fact, when my attorney slid across the table to Mac a copy of the letter from the discipline committee that had my "16 sins" and trespass papers for me and my wife, Mac said he had never seen it before. The first time he ever saw the November 2008 letter delivered to my home, was more than 1 1/2 years later when he my lawyer showed it to him during deposition. Go figure.

Anonymous said...

For Mac's eternal life sake I hope that what he said was true. But it is hard to believe that they operated against his wishes or that he knew nothing about it even after the fact.

Maybe Mac is not the leader folks think he is.

Anonymous said...

If anyone believes Mac Brunson was not a front runner in this case is a fool - but most everyone in the congregation knows of the personal friendship between the Brunson family & all those involved in this case - they are a tight bunch.

I believe he did say "leave him along" knowing full well his good friends would go full steam to bring the Watchdog down. What Brunson didn't realize was he himself stirred up a hornet's nest that continues to sting the testimony of the church even to this day on December 11, 2011.

Anonymous said...

"What Brunson didn't realize was he himself stirred up a hornet's nest that continues to sting the testimony of the church even to this day on December 11, 2011."

December 11, 2010 9:41 AM

CORRECTION: Even to this day on 12/11/10!

Anonymous said...

All of this "I hate Mac" stuff is just nonsense. After all of this we now understand that Mac had nothing to do with how or why the Dog was uncovered. In fact, apparently the only offense is that Mac suggested that the Dog is sociopath.

If I get this right, Dog is convinced that the first amendment guarantees him some right to remain anonymous. I really do not see how anyone has the right to anonymity if their words harm others. Perhaps the government has no right to intervene unless it is in conjunction with a criminal investigation.

It should not be that difficult to find someone's identity if there is a good legitmate reason. For example, if I have a restaurant and someone blogs in the Times-Union that they found something in the food, then, shouldn't I have the right to identify the blogger? Freedom of speech is not free speech. Words can cost others and each person should be held to account for their words. People should be careful when putting words out publicly. You have the responsibility to make sure that your words are true and, moreover, that you can prove your words. Even if your words are the truth, you need witnesses and if you can't back it up then you are just as liable.

FBC Jax Watchdog said...

Anon - in your example if someone is slandering you, or your restaurant in your example, you do have a right to try to find their identity. It is through the civil courts, you can do a "John Doe" lawsuit and ask the court to compel ISPs or website owners to reveal the identity of an anonymous person. That anonymous person has the right then to defend their anonymity and the court rules one way of the other.

In the course of a criminal investigation, yes, the government can compel ISPs to hand over identities of people. But the government can't go on a fishing expedition, and govt officials can't use their power for non-govt purposes.

So yes, the right to anonymous speech is well established, and there are processes in place for the anonymity to be breached in both criminal and civil processes.

The govt has to show a compeling govt interest, such as a legitimate criminal investigation, to breach someone's anonymity using their subpoena power.