I have another article in this week's issue that I thought you might like to read. I'd like to also give you some background on the piece, and fill you in on a couple of developments since we went to press...
You may recall, back in October, the Mercury's attorney won a ruling in Clackamas County under Oregon's media shield law, essentially upholding our right to keep the identity of our commenters secret from a gentleman wishing to subpoena them. So when Bikeportland.org editor Jonathan Maus got a court order from the DA's office here in Multnomah County a few days after that, ordering him not only to give up the identity of one of his commenters, but to keep the whole thing a secret, and not even discuss it with anyone, he was troubled, to say the least.
MAUS: Was troubled by court order...
You can click on the link at the top here to go read all about it. But as a little background on the story, I wanted to give you the chance to peruse a few documents, and set things in context. Here's a copy of the court order, signed by Judge Cheryl Albrecht.
Before contacting us about this story, Maus was concerned about the possible threat of legal action against him for discussing the order publicly—potentially, he could have been held in contempt of court for discussing the court order. So he consulted with an attorney who contacted the District Attorney's office, confirming that the "confidentiality provision of the court's order" had expired, because the commenter made himself available to the DA's office. Meanwhile our attorneys also advised that the Mercury could not get into trouble for receiving the court order, reading it or publishing about it. But I mention both of these facts because I want you to see how concerned Maus was about being given an order of this nature, and how concerned we were about doing our due diligence before writing about it. There's the meat of this post, after the jump.
The original post on Maus's site is here. The comment in question is number 56, which, if you go into it, could clearly be potentially valuable to the District Attorney's office in pursuing a case against the gentleman in question. We didn't feel the details on this were terribly relevant to the story as presented, but you may feel differently, and I wanted you to take a look and judge for yourself.
Judge Albrecht told the Mercury that she signed the order based on a previous order by another judge finding good cause for production of the information requested, as well as good cause for limitations on disclosure of the request and the information itself. The other judge, reached by telephone this morning, was Judge Edward J.Jones, who tells the Mercury that he had never seen an order quite like this one before, but that typically, prosecutors might come to him asking for access to, for example, a suspect's bank records, with a confidentiality clause attached to prevent the bank from disclosing the nature of the search to the suspect.
"Typically, this happens where the prosecution doesn't want the person to know we're snooping," says Jones. "He might be the Governor of Illinois or something."
On the order to Maus, Jones says he "can appreciate that it could create some issues around bloggers and are they news outlets, and that kind of thing, but if it were a blanket order, I wouldn't have signed it. Basically, it was the prosecution saying, give me a head start, and that was my understanding, and it seemed reasonable, and so I signed it."
"Now, if I came to you, a journalist, and said, give me the identity of your secret source," Jones continues, "I would imagine the first thing you would do is say I'll call my secret source and ask them if they want to be identified. If your secret source doesn't give a shit, then how much of a battle do you want to have? But if identifying your secret source means they're going to be indicted or dumped in the river, well then, that's a different issue."
"How this order would have been litigated is, if the District Attorney goes to a blogger, and says tell me the name of the source, and the blogger says, 'that's bullshit, I'm getting a lawyer and I'm having a fight,'," Jones continues. "But apparently that never came up in this case. People chose not to have that battle."
Maus says he was concerned about even talking to his spouse about the order, because of the provision within it ordering him not to discuss it. He was also concerned about talking to a lawyer for the same reason.
It seems to this reporter that the best way to avoid issues like this in future is for local bloggers to be aware of the potential for orders like this to come their way, and to advise their commenters of their policies and procedures for responding to subpoenas seeking information about their identities. Likewise, if you're commenting on a blog under presumed anonymity, you may wish to consider how closely that anonymity is going to be guarded by the blog proprietor before you let slip any potentially sensitive information.
There's also a pretty interesting state statute on the "simulation of legal process," not to mention bar rules on due process, fairness to opposing parties and counsel, respect for the rights of third persons, and so on, that went through my mind as I was researching this story, and that I thought you might like to peruse:
162.355 Simulating legal process.
(1) A person commits the crime of simulating legal process if, with the intent to harass, injure or defraud another person, the person knowingly issues or delivers to another person any document that in form and substance falsely simulates civil or criminal process.
(2) As used in this section:
(a) “Civil or criminal process” means a document or order, including, but not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading or subpoena, that is issued by a court or that is filed or recorded for the purpose of:
(A) Exercising jurisdiction;
(B) Representing a claim against a person or property;
(C) Directing a person to appear before a court or tribunal; or
(D) Directing a person to perform or refrain from performing a specified act.
(b) “Person” has the meaning given that term in ORS 161.015, except that in relation to a defendant, “person” means a human being, a public or private corporation, an unincorporated association or a partnership.
(3) Simulating legal process is a Class C felony. [1971 c.743 §210; 1997 c.395 §1; 2005 c.2 §1]
Oregon Code of Judicial Conduct
(A) A judge shall provide to every person who has a legal interest in a proceeding, and to that person’s lawyer, the right to be heard according to law.
(B) A judge shall not communicate or permit or cause another to communicate with a lawyer or party about any matter in an adversary proceeding outside the course of the proceeding, except with the consent of the parties or as expressly authorized by law or permitted by this rule.
OREGON RULES OF PROFESSIONAL CONDUCT
(as amended by Supreme Court effective December 1, 2006)
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) knowingly and unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
RULE 4.4 RESPECT FOR THE RIGHTS OF THIRD PERSONS; INADVERTENTLY SENT DOCUMENTS
(a) In representing a client or the lawyer’s own interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.
RULE 8.4 MISCONDUCT
(a) It is professional misconduct for a lawyer to:
(1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law;
(4) engage in conduct that is prejudicial to the administration of justice;
Still, as Judge Jones says, I think it all depends on whether people choose to have the battle. If you run a blog and receive a court order like this in the future, you might like to give it some thought...