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Can the First Amendment Defeat A Grand Jury Subpoena?:
Here's an interesting report:
  Federal prosecutors have withdrawn a subpoena seeking the identities of thousands of people who bought used books through online retailer Amazon.com Inc. (AMZN), newly unsealed court records show.
  The withdrawal came after a judge ruled the customers have a First Amendment right to keep their reading habits from the government.
  "The (subpoena's) chilling effect on expressive e-commerce would frost keyboards across America," U.S. Magistrate Judge Stephen Crocker wrote in a June ruling.
  "Well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon's customers could frighten countless potential customers into canceling planned online book purchases," the judge wrote in a ruling he unsealed last week.
A bit about the criminal case that led to the subpeona:
  Federal prosecutors issued the subpoena last year as part of a grand jury investigation into a former Madison official who was a prolific seller of used books on Amazon.com. They were looking for buyers who could be witnesses in the case.
  The official, Robert D'Angelo, was indicted last month on fraud, money laundering and tax evasion charges. Prosecutors said he ran a used book business out of his city office and did not report the income. He has pleaded not guilty.
  D'Angelo sold books through the Amazon Marketplace feature, and buyers paid Amazon, which took a commission.
  "We didn't care about the content of what anybody read. We just wanted to know what these business transactions were," prosecutor Vaudreuil said Tuesday. "These were simply business records we were seeking to prove the case of fraud and tax crimes against Mr. D'Angelo."
  The initial subpoena sought records of 24,000 transactions dating back to 1999. The company turned over many records but refused to identify the book buyers, citing their First Amendment right to keep their reading choices private.
  This will be celebrated 'round the blogosphere, but at least based on the press story, I don't think I understand the legal argument behind Judge Crocker's decision. True, there are precedents on the books involving First Amendment limitations on civil subpoenas. But Dan Solove's wishes notwithstanding, I don't think I've ever heard of a First Amendment right to anonymity trumping a grand jury subpoena obtained in a criminal case. The general rule is that if the grand jury issues a subpoena, there's no third party right to assert a First Amendment interest of others against the grand jury subpoena. Or so I have always thought.

  To respond to the comments that will be coming: Yes, of course you can try to extend cases and draw analogies to established principles. And yes, it may be consistent with your view of what the law should become, the fundamental truths of the cosmos, etc. My point is only that, at least off the top of my head, I can't think of a court approaching the law this way until Magistrate Judge Crocker's decision. Anyway, I'm sure someone will post the decision, as it sounds like Judge Crocker was quite eager for it to be public.

  UPDATE: The order is there, via commenter Opus. I'll add a new post on it shortly.
GV_:
To support the magistrate judge's opinion, I think you can extend cases and draw analogies to established principles. And the ruling is certainly consistent with my view of what the law should become and with the truths -- nay, fundamental truths -- of the cosmos. Etc.

But that being said, I wonder if there is no case dealing with this because the Government has never tried something like this before.

(I have never used the word "nay" before and I can only hope that I've used it correctly.)
11.27.2007 7:48pm
OrinKerr:
GV,

Hasn't done what before? (Oh, and excellent use of nay, I think.)
11.27.2007 7:50pm
Greg (www):
How about In re: Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229 (4th Cir. 1991), which CJS describes as standing for the proposition that "[T]he court must balance the possibility of a constitutional infringement against the government's need for the evidence on a case-by-case basis, without putting any special burden on the government."

Or

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), where two journalists refused to name the Black Panther sources their article was based on. The court that the presumption is that the First Amendment protects all speech and associations and that the government must prove that the speech/associations at issue are outside its protection.
11.27.2007 8:08pm
John (mail):
Did the judge have any evidence to support his factual finding that complying with the subpoena "would frost keyboards across America"? Or that it would have any material chilling effect at all?

Or, as with so many factual assertions of our courts, was he just making it up as he went along?

Apart from its stupidity, the court's assertion seems plainly false.
11.27.2007 8:10pm
Ben P (mail):
I'm not entirely sure about the context of a used book sale, surely the data could be presented in such a fashion as to not identify the titles of the books should Amazon choose to do so.

But I could see this argument if a list of books purchased were sought as some form of evidence of motivations, say if one had purchased a substantial number of militia related books and was accused of some related crime.

I've heard anecdotal stories about people being contacted after checking out too many of the "wrong" books from public libraries in short succession.

This is one such story
11.27.2007 8:11pm
TallDave (mail) (www):
I have to agree with Orin, Crocker's argument is odd. It's a very specific charge, and has nothing to do with the content of the books.

As much I really, really don't want to see police profiling people by the books they read, it's hard to see this subpoena as any kind of step along that road. This doesn't strike me as a real 1A win.
11.27.2007 8:11pm
Greg (www):
You could argue that Bursey doesn't fit the bill because it's the journalists protecting their own First Amendment rights, not the sources' right to remain anonymous, but the court in that case doesn't think the notion can be limited that way:


The First Amendment interests in this case are not confined to the personal rights of Bursey and Presley. Although their rights do not rest lightly in the balance, far weightier than they are the public interests in First Amendment freedoms that stand or fall with the rights that these witnesses advance for themselves. Freedom of the press was not guaranteed solely to shield persons engaged in newspaper work from unwarranted governmental harassment. The larger purpose was to protect public access to information. Freedom of association was secured not only to protect the privacy of those who assert their rights in litigation, but also to shelter all persons from unjustifiable governmental prying into their associations with lawful groups. In the context of litigation, vindication of these public rights secured by the First Amendment is primarily committed to persons who are also asserting their individual constitutional rights.
Id., at 1083-1084.
11.27.2007 8:13pm
TallDave (mail) (www):
Ben,

That story doesn't sound like they were investigating someone because they checked out the wrong books, it sounds like they were investigating the library because known terrorists had been going there. Not the same thing.

I seem to recall only one publicized case where anyone actually clained to have been investigated because of their reading choices, and that turned out to be fake.
11.27.2007 8:18pm
Ben P (mail):
TallDave,

Whoops, one tab off

The right link was further down that page

This specifically mentions the fear of "routine checks" into records of this nature.


Of course I can't speak for the veracity of the source since it only has "associated press" and no author or originating newspaper.
11.27.2007 8:24pm
OrinKerr:
Does Bursey survive Branzburg v. Hayes, decided that same week?
11.27.2007 8:28pm
Ben P (mail):
A slightly different source

It's again, not specifically addressing what I'd heard about, but is pretty relevant to the original post. Whether or not the first amendment might protect ones library subscription list from becoming evidence against you in a criminal case, or being used in the absence of a criminal case or a search warrant.
11.27.2007 8:31pm
Bored Lawyer:

The initial subpoena sought records of 24,000 transactions dating back to 1999. The company turned over many records but refused to identify the book buyers, citing their First Amendment right to keep their reading choices private


Since the issue was tax evasion, and the Govt. claimed it had no interest in the customers' "reading choices" why couldn't the information be turned over with this part of its redacted? For example:


John Doe Customer paid $25 (plus shipping) to our Suspect/Defendant on such and such date for a book. The title is redacted. The address or other contact info. for John Doe Customer is also provided.



Has any 1st Amendment right of John Doe Customer been violated?
11.27.2007 8:42pm
Greg (www):
Bursey's been cited favorably as recently as 1987 in In re Grand Jury Subpoena, 829 F.2d 1291, 1304 (4th Cir.):


Despite the strong tradition of judicial deference, therefore, a grand jury does not have the unlimited right to chill protected speech. See In re Grand Jury Proceedings, 776 F.2d 1099, 1102-03 (2d Cir. 1985); Ealy v. Littlejohn, 569 F.2d 219, 226-27 (5th Cir. 1978). A grand jury subpoena is "not . . . some talisman that dissolves all constitutional protections." Dionisio, 410 U.S. at 11. Like any instrument of government, the grand jury must abide by the limits of the First Amendment. "No governmental door can be closed against the Amendment. No governmental activity is immune from its force." Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972). As the Supreme Court has explicitly noted, "we do not expect courts will forget that grand juries must operate within the limits of the First Amendment." Branzburg, 408 U.S. at 708.


As that citation to Branzburg makes clear, even that case envisioned that a rogue grand jury could be reined in.
11.27.2007 8:45pm
Anonymouseducator (mail) (www):
How do you pronounce "chilling effect"? Is it CHILL-ing ef-ECT, or CHILL-ing-eff-ect?

I guess what I'm asking is, is "chilling effect" a stock phrase that courts like to use.
11.27.2007 8:55pm
GV_:
Hasn't done what before?

Hasn't tried to track down third-party individuals to testify before a Grand Jury by asking a third-party entity for records pertaining to their book buying habits. In other words, there might not be a case on point because similar facts have not come up before.

From a policy perspective, I don't like the idea that the Government can track me down as an alleged witness to a crime by violating my privacy in this way. But I also have a hard time understanding how the Government's actions here are chilling First Amendment rights, as you're not punishing these third-party witnesses. Would people really choose not to exercise their First Amendment rights because they're afraid the Government will find out about their activities and ask them if they witnessed something relevant to a criminal investigation where they have reason to believe you did witness something? Imagine a case where there was a murder in front of a bookstore. Could the Government really not demand that the bookstore turn over information about who was in the bookstore during the relevant time period?
11.27.2007 9:04pm
Opus:
The order may be found here
11.27.2007 9:08pm
Greg (www):
Here's a fun one, In re Grand Jury Subpoena to First Nat'l Bank, 701 F.2d 115 (10th Cir. 1983) holding that a subpoena that sought to identify the members of an anti-tax group, The National Unconstitutional Tax Strike Committee (NUTS), might chill their associational rights and therefore an evidentiary hearing should be held.

I found this case at footnote 196 of Solove's article, which lists several Grand Jury cases. Indeed, President Clinton's case involved a first amendment challenge to a grand jury subpoena which required a showing by Ken Starr that there was a compelling need for the information. In re Grand Jury Subpoena to Kramerbooks &Afterwords Inc., 26 Media L. Rep. (BNA) 1599 (D.D.C. 1998). (Solove p. 147)
11.27.2007 9:08pm
hattio1:
Why would they need the ID of the book buyers? It seems that amount paid for the book, and the amount the book was bought by the seller for would be sufficient to see if he had reported that amount as income.
11.27.2007 9:10pm
Greg (www):
The solution crafted by the Judge seems eminently fair. Amazon will send a letter to a subset of this guy's customers explaining that the government would like volunteer witnesses. If they come forward, the government will learn their names. If they don't, the government never knows who they are. It protects what First Amendment rights there are in protecting one's anonymity while still allowing the government to get witnesses.
11.27.2007 9:17pm
billb:
In keeping with Bored Lawyer and Greg, above, I can't see why the prosecutor drafted his subpoena the way he did. He needs two lists: one with the list of books the defendant is supposed to have fraudulently sold along with the date and amount of sale, and the other a simple list of people within the relevant time frame that transacted business through Amazon with the defendant.

The problem (from a moral/ethical/freedom/etc., not necessarily legal perspective) with the subpoena-trumps-1st-Amendment argument is that once the government has this data, they can do anything they want with it. And, since it is data about unindicted and almost certainly innocent people, it may indeed have a chilling effect on their exercise of their rights. The prosecutor could easily have drafted a better subpoena that more narrowly requested only the information he needed and didn't implicate any third-party's rights. That he didn't might be telling (of laziness, ignorance, malice, etc.--your choice).

Taking this a step away from the 1st Amendment issues, is there anything stopping a prosecutor from issuing subpoenas to the cell phone companies for all subscribers present within a 5 block radius of and 30-minute time window surrounding a particular public place and date where a murder was committed in order to find a few reluctant witnesses?
11.27.2007 9:50pm
David M. Nieporent (www):
Does Bursey survive Branzburg v. Hayes, decided that same week?
Yes and no? No, in that it seems to be contradicted by Branzburg; yes, in that most circuits simply ignored Branzburg, as Posner pointed out in McKevitt.
11.28.2007 3:59am
JohnMc (mail) (www):
Bored Lawyer in my mind has the nut of it. Since the case seems to be primarily a tax evasion case to what ends does knowing the titles of the reading materials matter if all the prosecution wanted was the names. I can think of only one -- use of the title as leverage to pry additional information out of the recipient.

But I find it of interest that the prosecutor would even care about the buyer list. The way Amazon is set up every transaction is nearly blind. About the only thing that the buyer could testify to is did or did they not receive the book and was it from seller X. Anything else would border on hearsay. And I presume that the prosecutor already had summary billing records of the defendant or he would not have much of a tax avoidance case to begin with.
11.28.2007 9:47am
Orielbean (mail):
This seems so goofy to me because buying something on Amazon does not give me any expectation of real anonymity here - they have my billing / shipping information. If there was some method to buy a book without anyone knowing who I was or where I lived - some convoluted method of drop-box and TOR payment - then I might expect to hide behind the internet. I would never expect my info to be protected from a subpoena. I expect my info to be protected from fraud.

And the fact that the government would let Amazon pick the customers and ask for VOLUNTEER witness testimony grants them leeway in my opinion. They really acted above and beyond good faith it seems to me!
11.28.2007 11:55am
Greg (www):
The government didn't "let Amazon pick the customers and ask for VOLUNTEER[s]" until AFTER it asked for the names of 24,000 customers, was denied that information, amended its subpoena to apply to only 120 people, was denied AGAIN and appealed to the court to FORCE Amazon to reveal the names. The Judge had to BROKER the agreement to let Amazon ask for volunteers, he even SCOLDED the government for forcing the First Amendment issue when the ultimate resolution makes so much more sense.

What if the government didn't want to limit the subpoena to 24,000 people? What if it wanted the purchases of EVERY Amazon customer who ever purchased a book in the last 5 years? If First Amendment doesn't EVER trump a subpoena, what's the limit?
11.28.2007 3:14pm
David M. Nieporent (www):
What if the government didn't want to limit the subpoena to 24,000 people? What if it wanted the purchases of EVERY Amazon customer who ever purchased a book in the last 5 years? If First Amendment doesn't EVER trump a subpoena, what's the limit?
The same as the limit on any subpoena: it has to be reasonable.

If they asked for information about 24,000 people who bought toaster ovens, it wouldn't implicate the first amendment, but still could be overly burdensome relative to the potential benefit from the subpoena.
11.28.2007 5:51pm