A federal judge has ruled against the ACLU’s motion to quash a subpoena that federal prosecutors had issued against the Las Vegas Review Journal in the Robert Kahre legal-tender/tax resistance case in Las Vegas.
During the trial (see my commentaries on the Kahre case here [June 26], and here [June 3], and here [August 17]), the Review Journal published a news story about the trial. On its website, several people posted comments in response to the news article. Most of the comments were critical of the Federal Reserve, the IRS, and the federal prosecution of Kahre.
Such criticisms obviously didn’t sit well with the prosecutors, who served a subpoena on the newspaper demanding production of all identifying information on all the commentators. (See my articles on the subpoena issue here [June 12], here [June 17], here [July 21], and here [June 25]).
The Review Journal opposed the subpoena as being an overbroad attack on the free-speech rights of the citizenry, which caused federal prosecutors to issue a second, modified subpoena seeking identifying information on only two critics: one who suggested that the jury “should be hung” if they returned a conviction and another who waged fictional Star Trek currency that a federal prosecutor would not reach his next birthday.
The ACLU intervened in the case, seeking to have the subpoenas quashed on the basis of the First Amendment. The ACLU also filed a motion seeking the recusal of the judge presiding over its motion.
The ACLU asked the newspaper to not comply with the second subpoena until the judge had ruled on the matter. The newspaper decided to reject the ACLU’s request and turned over the information on the two commentators, apparently under its fear that a possibility existed that the commentators might be planning a terrorist attack. Nonetheless, the ACLU continued with its motion, seeking to have the judge issue an order that the prosecutors return the information to the newspaper and not use it in any way.
Yesterday, September 29, the presiding judge, Kent Dawson, ruled against the ACLU, stating that its motion was now moot given that the jury in the Kahre case had already returned a verdict. See here and here.)
The judge’s ruling strikes me as extremely strange and highly dubious, given the timeline of events:
The ACLU’s motion and request for recusal was filed in mid-June, 2009. The Kahre verdict was reached two months later, in mid-August 2009.
Therefore, the judge obviously had two months to rule on the matter while the Kahre case was taking place. Yet, for some unknown reason he sat on the matter without ruling on it, letting the Kahre case come to a conclusion. Then, after waiting for the trial to end, he issues a ruling declaring the entire matter moot.
The judge’s action — or actually inaction — gives renewed vigor to the old dictum “Justice delayed is justice denied.” The fact that the judge himself was apparently responsible for the delay in ruling makes the matter even more egregious.
Moreover, the ACLU continues to maintain — quite correctly in my opinion — that the matter isn’t moot at all since the Kahre case is still pending, given that his sentencing is in November and given that he might appeal the conviction.
Thus, I think the judge misses the point — which is that the prosecutors’ subpoenas chill criticism of the government, regardless of whether a verdict has already been reached or not.
In an apparent partial recognition of the validity of that argument, the judge indicated that he would modify his ruling to state that the prosecutor’s initial subpoena was, in fact, overbroad. But that still misses the point — the point is that the statements in question do not arise to the level of a criminal offense and, therefore, remain protected speech. If the government can subpoena identifying information on people who make critical comments about the government that don’t violate any laws, then potential critics are chilled from criticizing government misconduct.
The prosecutors now claim that they’re just concerned that the two commentators were trying to intimidate the jury and the prosecutors. That’s palpable nonsense, especially given that jurors aren’t supposed to be reading news accounts of the trial and federal prosecutors are not likely to be the types of people to be intimidated by a few nasty comments posted on the Internet.
Actually, the government’s issuance of its initial subpoena reflects that it was the prosecutors trying to intimidate the citizenry, not the other way around. Too bad a federal judge, who job it is to uphold constitutionally guaranteed rights from government infringement, sees it otherwise.
