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Wednesday, October 15, 2014

On Houston's Broad Supboena [UPDATED]

Eugene Volokh has a good post on developments in litigation in Houston around that city's equal rights ordinance. The only report I've seen so far from a mainstream outlet is this Houston Chronicle story, which reports in part:

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case's discovery phase, seeking, among other communications, "all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession."

Of course a good deal of the reporting on the development is from partisan outlets and should be read, if at all, with caution (a number of headlines out there, for instance, talk about Houston seeking "oversight" of sermons and so on).  But while I would want to know more, I find the Chronicle report and the language quoted in it troubling on its face. Better than having to rely on overheated sources (including the press release by the ADF, which is involved in the case) would be more mainstream media coverage of this request, which I think certainly deserves it. 

With his typical indefatigability, Eugene has already worked up a decent chunk of First Amendment analysis and concludes that the precedents don't incidate some pre-existing slam-dunk First Amemdment argument. Based on a brief search last night, I concur, although I would be happy to hear from others. Another  case one might want to look at is the Ninth Circuit's opinion in White v. Lee, 227 F.3d 1214 (9th Cir. 2000). There are definitely distinguishable facts and I am not suggesting the case is on all fours, but it may provide useful additional reading. In that case, the court examined a HUD investigation of some neighbors who opposed the conversion of a nearby motel into a multi-family housing unit. HUD "questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project"; and so on. The panel, per Judge Reinhardt, stated:

The investigation by the HUD officials unquestionably chilled the plaintiffs' exercise of their First Amendment rights. It is true that the agency did not ban or seize the plaintiffs' materials, and officials in Washington ultimately decided not to pursue either criminal or civil sanctions against them. But in the First Amendment context, courts must “look through forms to the substance” of government conduct. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Informal measures, such as “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,” can violate the First Amendment also. Id.8 This court has held that government officials violate this provision when their acts “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999) (citation omitted). Here, the type of investigation conducted and the manner in which the individual defendants carried out their functions more than meets that standard.

But while the churches' argument that Houston's conduct constitutes a clear First Amendment violation is at least open to question and we can discount some of the more hysterical rhetoric, I think it is entirely reasonable to be disturbed by the breadth of the discovery request, and to think of it as, so to speak, touched with First Amendment concerns. Certainly, after a decade and a half of rhetoric about various aspects of governmental investigative conduct, whether federal or local, being designed to "intimidate" or "suppress" political dissent or activism, much of which I found overstated but hardly without any basis, this story at least deserves to be approached by the same individuals with the same sorts of concerns. And certainly people have raised concerns about similar uses of other investigative techniques in other cases, such as when Slate and other outlets wrote about the freedom-of-information request aimed at Professor Douglas Laycock, whether they thought those requests raised direct First Amendment concerns or not.

At a minimum, I think, the court should examine the request skeptically and demand strong reasons for its breadth and for some of the specific requests made by the city; the mainstream news media should dig further into the story and demand fuller explanations from the city for its conduct (the city declined to comment for the Chronicle story); and the city should be subject to public criticism. Again, I'm happy to hear from others.     

UPDATE: With thanks to Eugene for the link, here's an update. Quoting from the story:

[I]n a breaking development Wednesday, Houston Mayor Annise Parker appeared to be backing away from the initial requests. Janice Evans, a city spokeswoman, told Law Blog in a statement:

Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons.  The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January.  Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday.  Both agree the original documents were overly broad.  The city will move to narrow the scope during an upcoming court hearing.  Feldman says the focus should be only on communications related to the HERO petition process.



Posted by Paul Horwitz on October 15, 2014 at 09:18 AM in Paul Horwitz | Permalink


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