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Fighting Federal Subpoenas on First Amendment Grounds: When Speech is Protected

Fighting Federal Subpoenas on First Amendment Grounds: When Speech is Protected

The First Amendment of the U.S. Constitution protects freedom of speech, press, religion, assembly, and the right to petition the government. This includes protections for journalists, activists, protestors, and others engaging in free expression. However, the government can still subpoena information related to free speech activities as part of an investigation. When this happens, targets may be able to fight the subpoenas on First Amendment grounds.

When Can the Government Subpoena Free Speech Information?

The government has some ability to subpoena records and testimony related to free speech. This often happens in national security cases, lawsuits against the media, or investigations into protests and activism. Some examples include:

• Journalists – Trying to force reporters to reveal confidential sources or turn over notes and materials from investigative stories.
• Activists – Demanding membership lists, financial records, or communications from political advocacy groups.
• Protestors – Subpoenaing social media records, phone data, or video footage to identify people who attended rallies and demonstrations.

However, the First Amendment provides strong protections in many of these situations. There are legal options to fight government overreach.

When Does the First Amendment Protect Against Subpoenas?

In some cases, complying with a federal subpoena would violate free speech rights under the Constitution. Some key examples include:

• Confidential Sources – The Supreme Court ruled that reporters have a First Amendment right to keep sources confidential. Subpoenas seeking to uncover sources are only valid if there is an overriding public interest and the information can’t be obtained elsewhere.
• Membership Lists – Forcing advocacy groups to turn over their member or donor lists can violate freedom of association under the First Amendment, especially if it could expose people to harassment or retaliation for their beliefs.
• Anonymous Speech – The right to speak anonymously is protected by the First Amendment in many contexts. Subpoenas seeking to uncover the identity of anonymous speakers must meet a high legal standard.
• Overly Broad Requests – Subpoenas for free speech materials can be fought if they are vague, excessively burdensome, or request irrelevant information. They may be limited or quashed on First Amendment grounds.

How to Fight a Subpoena on First Amendment Grounds

If you receive a federal subpoena requesting free speech materials, don’t panic. There are established legal procedures for challenging subpoenas that violate First Amendment rights:

• Consult an attorney – Get advice from a lawyer who specializes in First Amendment and subpoena defense. They can evaluate the merits of fighting the subpoena.
• Negotiate limitations – Often the first step is to negotiate restrictions on the scope of the subpoena or have sensitive materials sealed from public access.
• File a motion to quash – This is the formal legal request asking the court to throw out the subpoena as unlawful. The motion argues why it violates the First Amendment.
• Request an injunction – Alternatively, targets can seek a protective order stopping the subpoena’s enforcement until the court rules on its constitutionality.
• Present evidence – People fighting subpoenas submit affidavits and other proof about the First Amendment harms they will face if forced to comply.
• Appeal if necessary – If the trial court upholds the subpoena, the case can be appealed to higher courts. Appellate judges take First Amendment defenses seriously.

Real-World Examples of Fighting First Amendment Subpoenas

Here are some real cases where targets successfully fought off federal subpoenas by raising First Amendment arguments:Reporters Protect SourcesIn one high-profile case, video journalist James Risen spent seven years battling both the Bush and Obama administrations’ efforts to force him to identify his confidential sources. Risen refused to comply based on reporter’s privilege and prevailed in the courts.Advocacy Group Shields DonorsCitizens United, famous for its Supreme Court case on election spending, defeated FEC subpoenas requesting its donor and member information in 2016. The federal court agreed this violated the group’s First Amendment rights.Protest Leaders Avoid Surveillance DataAfter 2020 Black Lives Matter protests, Memphis police subpoenaed phone and social media records on protest organizers to identify participants. With the ACLU’s help, the leaders cited anonymity rights under the First Amendment and the subpoenas were withdrawn.

Conclusion

The First Amendment provides vital safeguards against government overreach for free speech and association. While federal agencies have power to subpoena records in many contexts, targets can fight back when the subpoenas infringe on constitutional rights. By raising First Amendment defenses with help from experienced attorneys, many people have succeeded in protecting their confidential data.

Resources

When Can Reporters Protect Confidential Sources? | Reporters Committee for Freedom of the PressCitizens United v. Schneiderman | ACLUCan Police Subpoena Protestors’ Social Media Information? | Electronic Frontier Foundation