Room Eight Fights Bronx Subpoena, Wins

Subpoena from Robert Johnson

We’re relieved finally to be able to share with the Room Eight community the details of our battle to preserve the anonymity of a blogger and commenters in the face of a subpoena from a politician the blogger had criticized.

This January, we received a subpoena (.pdf) from the Bronx District Attorney, Robert Johnson, demanding identifying details of a Room Eight blogger who wrote under the name “Republican Dissident,” as well as the authors of a dozen comments on his posts. Equally chilling, the subpoena contained a legend (above) implicitly threatening us with prosecution if we disclosed its existence.

Last week, we won our legal battle to preserve the blogger’s and commenters’ anonymity, but the story is a cautionary tale in how – whether deliberately or not -- a local prosecutor appears to have been able to intimidate an anonymous, small-scale local critic into silence.

The New York Times reports this evening that a spokesman for the District Attorney – over whose name the original subpoena, dated last October, went out – says Johnson was “not aware that a subpoena was sent nor was he aware of the content of the comments, until after the subpoena was sent. The district attorney reviewed the matter, determined that a subpoena was not necessary at this time, and directed that it be withdrawn.”

That response leaves many questions unanswered – notably, how his political ally triggered an investigation of her critic in the first place.

Republican Dissident – whose blog appeared on the back pages of this site until he took it down April 15 – wrote as a harsh internal critic of the Bronx Republican Party which, in a quirk of local politics, is closely aligned with the Bronx Democratic Party. He attacked in particular Dawn Sandow, a Republican hire to the Bronx Board of Elections staff of the county party. City investigators, according to the New York Times and the New York Post, have been looking into questions of her residence and her relationship with the chairman of the Bronx Party, Jay Savino.

Republican Dissident also took issue with the district attorney himself, calling for the Bronx Republicans to run their own candidate against Johnson, a Democrat, and calling for him to be removed from an investigation of the Bronx Republican Party. “I would get another prosecutor than Bronx DA Robert Johnson, Bronx County GP always endorses him in every election he runs in,” Republican Dissident wrote.

The district attorney’s office refused to offer any details of their investigation, leaving us with the concern that the crime they were investigating was the criticism itself, most of which involved linking – with harsh, at times mean, caricatures – to news stories and to publicly available documents, like a deed in Sandow’s name to a house outside the Bronx.

We don’t have any position on Republican Dissident’s views or his style of expressing them. We do, however, feel very strongly that he has a right to do so without fear of exposure in an investigation that – as far as we know – appears to have concerned nothing beyond his online political speech. So we chose to fight the subpoena, and were lucky to be referred – by our friend Orthomom, whom he’d represented – to a talented, dynamic lawyer at the Public Citizen Litigation Group, Paul Alan Levy, a national expert on online free speech. (Support his work here.) He and our smart, thorough, generous, and knowledgeable local counsel – Charlie Spada and Deepa Rajan of Lankler, Siffert, & Wohl – first determined that the Bronx DA was, in fact, seeking the information. Then, in May, they filed a motion to quash the subpoena in state court. (You can read the legal paperwork here.)

Two months later, after we asked the judge move on the case, the DA withdrew his subpoena. They withdrew the threat of prosecution for speaking about it only after we threatened to sue them in federal court. We’re thrilled by the outcome, and grateful to our lawyers.

But the damage may have been done: We don’t know why Republican Dissident – with whom we’ve never corresponded – took down his blog, but we can’t help suspecting the investigation had something to do with it. You can see portions of his writing here.

More broadly, the scary reality is that here in the free speech capital of the world, a prosecutor tried both to demand confidential information about an anonymous critic and insisted, under penalty of law, that his request for the information be kept secret. We’re glad he backed down, and confident that the courts would have rebuffed his demands.

But not every blogger will be lucky enough to find pro bono counsel like ours, and few can afford to pay for lawyers. In the meantime, we hope District Attorney Johnson will be able to provide more detailed answers to the unanswered questions in this case: Who ordered this investigation of a political critic to be opened? Did it proceed through the usual channels – a complaint filed with the New York Police Department, for instance – or through the D.A.’s political operatives? The chilling threat to an important new form of speech demands that the D.A. take these questions seriously, or if he doesn’t, that a credible outside investigator look into the matter.

--Gur Tsabar and Ben Smith