Subpoena decision appealed - News

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Nov. 03, 2009
Copyright © Las Vegas Review-Journal

Subpoena decision appealed

ACLU: 'Fishing expedition' should be unconstitutional

By JOAN WHITELY
LAS VEGAS REVIEW-JOURNAL

Litigation continues about the right to anonymously post disparaging comments online about a Las Vegas-based jury and prosecutor.

The American Civil Liberties Union of Nevada has filed an appeal of federal Judge Kent Dawson's October decision to not examine the legality of subpoenas served last summer on the Las Vegas Review-Journal to identify who wrote the comments, which had appeared on the newspaper's Web site.

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The government "shouldn't be permitted to go on a fishing expedition," the ACLU's Margaret McLetchie, said Monday on behalf of four anonymous clients, who had posted comments. "It took the bravery of the Review-Journal to let the four (John) Does know" that prosecutors were seeking information on them, she added. Rarely do subpoena recipients publicize such government efforts to extract information.

The civil rights group is appealing to have a higher court declare that the two past subpoenas were unconstitutional, though one was withdrawn and the other already has reaped a harvest of personal data for prosecutors to use in tracking the authors of two specific comments.

In October, Dawson dismissed the ACLU's effort to intervene as "moot." But the ACLU argues that prosecutors still could be forced by a court to return the data to the newspaper and cease any ongoing search to locate the authors.

The first grand jury subpoena had requested information with which prosecutors could track all of the people, about a hundred, who had, at that point in time, commented on the case.

The Las Vegas Review-Journal opposed that subpoena. But the newspaper later complied when prosecutors issued a replacement subpoena that narrowed their focus to the authors of two comments.

All of the posts dealt with the criminal prosecutions of Robert Kahre and three others on charges of federal tax evasion, fraud and conspiracy.

One of the targeted comments said that if jury members convicted Kahre, they were "dummies" who "should be hung." The other commenter wanted to wager fictional "Star Trek" money that Christopher Maietta, who helped prosecute Kahre, would not reach his next birthday.

The trial ended in August with the four defendants convicted on most counts. The defendants are scheduled to be sentenced in late November, though several have filed motions for retrial or for judgments to be set aside.

In his dismissal, Dawson cited case law to show that a grand jury is "entitled to elicit information step by step to decide whether (a commenter) was speaking rhetorically" or making a true threat. The judge justified the second subpoena as a way to protect a jury from "attempts of criminal jury tampering through threats or intimidation."

On appeal, the ACLU intends to raise "whether the First Amendment limits the U.S. Attorney's Office's ability to subpoena the identities of anonymous commenters criticizing the government," according to the docketing statement that the ACLU filed last week with its notice of appeal.

The docketing statement also said the ACLU is raising "whether (Dawson) erred in dismissing as moot" the question of the subpoenas' constitutionality.

An appellate review of Dawson's decision would provide guidance both for drawing up subpoenas relating to online content and for defending free-speech and privacy rights.

Contact reporter Joan Whitely at joanwhitely@reviewjournal.com or (702) 383-0268.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. is this possible ? wrote on November 03, 2009 07:09 PM: the same private company that owns the federal reserve is going to do business in las vegas ? http://www.lvrj.com/news/breaking_news/Deutsche-Bank-affiliate-files-for-casino-license-as-Cosmopolitan-owner-68967027.html LCDR Mandingo, NAM vet wrote on November 03, 2009 06:52 PM: There aren't any prosecutors in Nevada, at any level of government. If there were, the LV Asst. USAG would have already prosecuted Ensign, his parents, and U.S. Sen. Coburn. These WASP conspired and violated our national security laws, when they tried to cover-up the extortion ($8 million) that Ensign was subjected to by his "hoochie-mama" and her husband. Ensign should track me down and sue me. I'll take on Bishops Mitt-Hatch and SCOTUS in-Justice Alito too. Mitt & Hatch violated the draft board's 70 year old ban on all military religious draft deferments. Elijah Muhammad (WWII) and his son, Wallace D. Muhammad (Vietnam), they both served 3 year federal prison sentences for religious draft evasion. Elijah was Muhammad Ali's religious advisor. Alito is a Boy George clone (UCMJ felon). Alito incurred an active military duty obligation of 11 years as a payback for taxpayers who paid for his education (JD-undergrad college degrees), in the US Army ROTC program. Alito served a whopping "90" days on active military duty. Check out this commie-siders online "bio". The Black "tea-baggers", Obama, Holder, NAACP, NABJ, and Congressional Black Caucus-CBC-comical blacks in congress, should have Alito impeached. Put a soul sister on the COTUS bench. Watch Clarence Thomas'("Driving Ms. Daisy") head explode. Shhh wrote on November 03, 2009 04:41 PM: Everybody, be quiet! Big brother is listening! Those who oppose the tyranny of our government are under the careful watch. God forbid someone make a statement about a crime that hasn't even been committed. Oops I said God. I should be imprisoned. one of the readers wrote on November 03, 2009 01:29 PM: hey, to "the IRS already audited me for my post" -- why not contact the R-J reporter, so paper can look into the reason for your audit? or is your post just an inflammatory, unsupported remark that could well be false? how does someone who has been bought and paid for by special interest feel about themselves ? wrote on November 03, 2009 12:03 PM: . prevent the truth from being known ,is the mormon way ! wrote on November 03, 2009 12:01 PM: http://www.paynoincometax.com/pdf/criminal_character_of_Judge_Dawson.pdf read about the judge yourself wrote on November 03, 2009 11:54 AM: http://helliseternal12.blogspot.com/ he fits right in with a hitler theme hotel casino the i r s already audited me for my post wrote on November 03, 2009 11:51 AM: the residents of las vegas have no idea how corrupt this valley is. Miles Monroe wrote on November 03, 2009 09:52 AM: I guess we're all surprised that the ACLU is actually sticking up for private enterprise. We're literally speechless. troutcatcher wrote on November 03, 2009 09:26 AM: What, no posters on this one?