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.
"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.