Tennessee County Seeks to Identify Authors of About Ten Thousand Comments

So reports Paul Alan Levy (Public Citizen Consumer Law & Policy Blog), with links to various documents, including the letter objecting to the subpoena, which in turn includes the subpoena as Exhibit A:

Shelby County, a government body in the southwestern corner of Tennessee that contains the city of Memphis, has subpoenaed Memphis’ daily newspaper, the Commercial Appeal, seeking to identify the authors of roughly ten thousand anonymous comments that have been posted to 45 different stories on the paper’s web site….

The subpoena arises out of a controversy about a proposed consolidation of school districts sought by the county commission. The consolidation has been highly controversial, and attracted extensive coverage by the local media, including many stories in the Commercial Appeal. The comments section of the various Commercial Appeal stories came to be a significant forum for community discussion of the issue. The debate raged in heated terms, with a number of comments reflecting racist views, as some citizens opposed the proposed consolidation because they were afraid that it would increase their children’s exposure to black children. Some comments were posted in sufficiently uncouth terms that the Commercial Appeal removed them for violation of the web site’s terms of service. Eventually the Tennessee Legislature passed a law that interfered with the consolidation plan, authorizing local jurisdictions to vote on whether to establish their own school districts, and Shelby County has sued to block the law, claiming that its purpose is to perpetuate segregation.

Although Shelby County has yet to articulate its precise reason for seeking the subpoena, our best guess is that the identities are being sought to help prove the discriminatory animus behind the legislation. The argument appears to be that, if the comments identify particular members of the public as racist, and if other evidence shows that those same members of the public urged their legislative representatives to pass the anti-consolidation bill, the citizen advocates’ racist views can then be attributed to the legislation which therefore can be struck down.

Now subpoenas aimed at identifying anonymous speakers are sometimes permissible. For instance, if the plaintiff is arguing that an anonymous speaker has libeled him, and there is enough evidence that the statement is indeed potentially libelous — i.e., that it makes a factual assertion, and a jury could reasonably conclude that the assertion is false and defamatory — then the plaintiff needs to be able to identify the defendant. The same may be true in some other cases, such as disclosure of trade secrets.

But here the supposed relevance of the comments to the County’s case is extremely tangential, and in any event the subpoena is vastly overbroad, covering many commenters whose identities couldn’t possibly be relevant. This sort of subpoena is thus both legally unjustified, and reflects poorly on the 8-5 majority of Shelby County commissioners who backed the subpoena when one commissioner asked that it be withdrawn.

I was puzzled, by the way, by this passage from an article in the Memphis Commercial Appeal on the blocked move to withdraw the subpoena:

Commissioners Mike Ritz and Sidney Chism placed partial blame on The Commercial Appeal for reporting the subpoena. “None of us knew about this until we saw the paper Sunday. This is almost a created controversy for The Commercial Appeal,” Ritz said.

Chism said the newspaper “has used this situation as a way to promote their own interests. They’re the most divisive element we’ve got in this town.”

Perhaps this is quoted out of context — please let me know if you know more about what the commissioners were trying to say — but, if accurate and in context, these assertions seem very odd. What exactly is wrong with a newspaper’s reporting the government’s attempt to unmask commenters on the newspaper’s site? Indeed, I should think that anonymous commenters (past and future) deserve to know that their county government might try to do this to them. Reporting on this is in the newspaper’s interest because it is in its readers’ interest and the public interest, it seems to me.

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