A bunch of people have forwarded to me versions of this news story:
[S]ubpoenas were served last week on four of the activists who attended a Nov. 15 forum at [Drake University], ordering them to appear before a grand jury Tuesday, the protesters said. . . .
In addition to records about who attended the forum, the subpoena orders the university to divulge all records relating to the local chapter of the National Lawyers Guild, a New York-based legal activist organization that sponsored the forum.
The group, once targeted for alleged ties to communism in the 1950s, said it will ask a federal court to quash the subpoena on Monday.
”The law is clear that the use of the grand jury to investigate protected political activities or to intimidate protesters exceeds its authority,” [G]uild president Michael Ayers said in a statement.
Those served subpoenas include the leader of the Catholic Peace Ministry, the former coordinator of the Iowa Peace Network, a member of the Catholic Worker House, and an antiwar activist who visited Iraq in 2002.
They say the subpoenas are intended to stifle dissent.
”This is exactly what people feared would happen,” said Brian Terrell of the peace ministry, one of those subpoenaed. “The civil liberties of everyone in this country are in danger. How we handle that here in Iowa is very important on how things are going to happen in this country from now on.”
The forum was titled ”Stop the Occupation! Bring the Iowa Guard Home!” The next day, 12 protesters were arrested at an antiwar rally at Iowa National Guard headquarters in Johnston. Organizers say the forum included nonviolence training for people planning to demonstrate.
The targets of the subpoenas believe investigators are trying to link them to an incident that occurred during the rally. A Grinnell College librarian was charged with misdemeanor assault on a peace officer. She has pleaded innocent, saying she simply went limp and resisted arrest.
”The best approach is not to speculate and see what we learn on Tuesday” when the four testify, said Ben Stone, executive director of the Iowa Civil Liberties Union, which is representing one of the protesters.
According to a story in the Des Moines Register, Nov. 17, 2003, the rally also apparently involved criminal trespass by about a dozen of the 70-odd people who attended; and, according to Capt. Doug Phillips of the Polk County Sheriff’s Department, the woman being prosecuted for assault, Chris Gaunt, “became limp and kicked a deputy in the knee as they were putting her in the (police) wagon.”
These sorts of subpoena cases are, I think, quite hard. Subpoenas asking about what was said at political meetings do risk deterring people from participating in such meetings; and this sort of inquiry, together with the subpoena of university records related to the group (which seem unlikely to be particularly relevant, or particularly informative), seems rather disproportional to the misdemeanor offenses involved here.
Nonetheless, meeting in order to plan an illegal activity may well be criminal conspiracy. The line between criminal conspiracy and protected advocacy is at times hard to draw (my Crime-Facilitating Speech article touches on one aspect of this difficulty), but if the speech was essentially detailed planning of what to do, coupled with mutual agreement to commit criminal acts — e.g., “At 10 a.m., we’ll all show up here; you folks go here to block this location until they arrest you; if they arrest you, become limp, and throw a kick or two; are we all agreed?” — then there is pretty clearly a constitutionally unprotected conspiracy going on here. That the conspiracy (if there is one) was organized at a political meeting doesn’t make the meeting immune from government investigation.
The prosecutors are certainly allowed to subpoena people who witnessed the actual trespass and alleged assault. They also may subpoena people who the prosecutors think participated in the planning, both to gather evidence related to any possible criminal conspiracy, and to see if any statements at the planning meeting might be relevant to the substantive offenses at the rally: For instance, if Chris Gaunt was heard to say “If any of those cops touch me, I’ll show them who’s boss” at the meeting, then the government’s case against her on the alleged assault would become a lot stronger. It’s harder to see why the Drake records related to the NLG chapter are relevant here; it will be interesting to see what arguments the government provides in response to the motion to quash that subpoena.
Political meetings are not safe harbors in which people can freely organize conspiracies to commit crimes, free from any risk of investigation (including coercive investigation using subpoenas). That’s true if it’s a KKK meeting used to organize racial terrorism, an Operation Rescue meeting used to organize trespass or vandalism at an abortion clinic, or an anti-war group’s meeting used to organize criminal trespass or possible misdemeanor assault. The government doesn’t have carte blanche to just demand the entire membership list of a group (see NAACP v. Alabama); but it has considerable latitude to ask people about any possibly criminal conduct that they’ve witnessed, and even about information that may simply be relevant to determining whether such conduct took place.
I do think the government should try to use this power sparingly, and as I said I’m not sure that such subpoenas are the proper tools when investigating relatively low-level misconduct such as this. But on the other hand, trespass and assault against officers are crimes; and the First Amendment doesn’t generally block the government from using its subpoena power to investigate such crimes, especially if there’s reason to think that the
Nov. 15 meeting did involve conspiracy to commit a crime.
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