Legal Commentary

Prosecutorial Subpoena to Unmask Blogger ? Without Any Good Faith Interest in Criminal Investigation ? Would Violate the First Amendment

By Eugene Volokh

So holds Rich v. City of Jacksonville (M.D. Fla. Mar. 31). Of course the decision rests on the plaintiff?s claim that the prosecutor in fact was just trying to unmask the blogger so he could be subjected to private retaliation ? the blogger posting things critical of the leadership of his church ? rather than in a good faith attempt to investigate possible criminal conduct. (The prosecutor was allegedly acting at the behest of a police officer who was a member of the church.) If the blogger can?t prove this underlying claim about the prosecutor?s motivation, he will likely lose.

The most important part of the decision rests on the Free Speech Clause, but the court also concludes that if issuing the subpoena was motivated simply by a desire to ?prosecut[e] an errand of the Church,? then that would also constitute a violation of the Establishment Clause. In such a situation, the court says, ?the state actor [would have] lacked a ?secular purpose? for his actions,? and the action would have had ?a primary effect of advancing religion? as well as ?enmesh[ing] churches in the exercise of substantial governmental powers.? ?Such ?active involvement of the sovereign? in the internal affairs of a church, namely a dispute between a congregant and his pastor on matters of church doctrine and administration, would violate the very essence of the First Amendment.?

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.