An anonymous blogger at New York City’s Room Eight wrote some not-nice things about a political figure. The original posts are now gone, but Ben Smith outlines them:

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.

By Buffalo standards, that’s pretty benign stuff. Nothing that any politician would get all huffy about.

But the Bronx DA issued a grand jury subpoena demanding that Room Eight reveal the name of “Republican Dissident”, as well as the identies of several anonymous commenters. In addition, the subpoena carried a caveat ordering Room Eight to not disclose the existence of the subpoena itself, under penalty of law.

From Ben Smith’s Affidavit:

I believe that there is a substantial possibility that the subpoenas that we have received represent harassment of those who criticize major figures in Bronx politics, and especially in the Republican Party, partly because it seems to be only critics whose identities are sought; partly because the District Attorney has refused to be specific about why he believes that the speakers posts reflect wrongful conduct; and partly because the subpoena was originally issued shortly after Dawn Sandow contacted Gur Tsabar to threaten prosecution because she had been criticized on Room Eight. The District Attorney has refused to be specific about why he believes that the speakers posts reflect wrongful conduct. On their face, it is difficult to conceive of how any of the criticisms posted – regardless of how tasteless – might be relevant to any grand jury investigation of alleged criminal activity.

In other words, there was no explanation given as to the supposed indictable crime the DA was allegedly investigating. It seems as if it was the political speech itself that was the subject matter of the investigation, and the Bronx DA’s office was patently abusing its subpoena power to try and expose, embarass, and punish “Republican Dissident” and commenters on Room Eight. I don’t think I can recall ever seeing such a blatant and outrageous violation of the First Amendment. Read Room Eight’s attorney’s affidavit for more detail about the DA’s position.

Ultimately, the Bronx DA withdrew the subpoenas, but Room Eight threatened to file suit if it wasn’t permitted to disclose the subpoenas’ existence on the site. The DA relented.

Blogging is no longer the unique form of expression it was four or five years ago, but there isn’t a lot of jurisprudence out there on the issue of criminal liability for blog posts and comments. Usually, cases are brought civilly for defamation. It seems like a complete overreach for the Bronx DA to have tried to chill protected political speech in this way, and there should, frankly, be an independent investigation carried out about this. Congratulations to Room Eight for standing on principle and fighting this illegal attempt to silence critics of the powerful.

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