Daleville attorney James Creekmore is no longer representing the Buckingham publicist/author/chicken farmer who’s suing the Hook and two of its reporters for $10.7 million. A Buckingham judge signed an April 14 order that allows Creekmore to withdraw as Tommy Lightfoot Garrett’s legal counsel.
For those keeping track, I’ve gone from representing myself to being represented by three awesome lawyers, while Garrett has gone from having a legal firm behind him to being pro se. It’s been quite a reversal in fortunes.
There’s lots of great news on the topic of my subpoena. The first is that three legal groups have all swooped in to save me (and cvillenews.com) from myself: Public Citizen, the ACLU of Virginia, and the Thomas Jefferson Center for the Protection of Free Expression. Paul Levy, Rebecca Glenberg, and Josh Wheeler—from each organization, respectfully—have put in some late nights and some hard work in the past couple of weeks, as they’ve researched, written, and debated their way to producing what is clearly a very, very strong motion. It’s clear is that they believe in the principle of this thing. We have an opportunity to set a legal precedent for bloggers, so that anybody will think twice before subpoenaing a blogger, blog commenter, or blog reader.
Here’s the press release from Public Citizen:
Court Should Not Force Virginia Blogger to Surrender Notes or Identify Anonymous Comments
Freedom of the Press Protects ‘Non-Traditional’ Journalists Too
WASHINGTON, D.C. – A Charlottesville blogger has the same rights as a mainstream journalist and cannot be forced to release his notes or identify people who posted anonymously on his Web site, Public Citizen, the American Civil Liberties Union of Virginia and the Thomas Jefferson Center for the Protection of Free Expression said in a brief filed today in a Virginia circuit court.
The same reporters privilege that protects newspaper and TV journalists under Virginia law applies to Waldo Jaquith, who runs cvillenews.com, said Public Citizen attorney Paul Alan Levy, who represents Jaquith, along with Josh Wheeler of the Thomas Jefferson Center and Rebecca Glenberg of the ACLU of Virginia.
Thomas Garrett, an author, actor, radio personality and self-described Hollywood publicist, subpoenaed Jaquith’s notes and Internet records after Jaquith wrote about a defamation suit Garrett had filed against The Hook, a Charlottesville alternative weekly. Garrett’s subpoena seeks identifying information for anyone who posted comments about or even looked at Jaquith’s blog entry on the suit. It also seeks any e-mails to or from Jaquith relating to Garrett or the defamation suit, and any documents “relating to information obtained, generated or created in writing the [cvillenews.com] article.”
“One of our country’s founding values is that the person standing on the soapbox in the town square has the same freedom of speech they have at The New York Times or the Toledo Blade, for that matter,” Levy said. “Bloggers such as Jaquith may not be ‘traditional’ journalists but they play an integral part in the way people get their news today.”
The brief also argues that the subpoenaed documents are irrelevant to Garrett’s defamation suit against The Hook. “It is difficult to see how comments that were written and posted nearly nine months after the alleged defamation took place could have any relevance to this sort of cause of action,” Wheeler said.
Further, the brief argues that commenters on Jaquith’s blog have a First Amendment right to do so anonymously and Garrett has provided no evidence on why they should be unmasked.
“If this subpoena is allowed to stand, bloggers will have to look over their shoulders whenever they write about a pending lawsuit,” said Kent Willis, director of the ACLU of Virginia. “The chilling effect could be devastating.”
Though it was awfully interesting dealing with this case pro se, it quickly became clear to me that I could set the wrong precedent if I messed things up. The stakes are too high for me to be playing lawyer. I’m enormously grateful to these three individuals and groups for their hard work and commitment, particularly on such short notice. They’ve sacrificed time with their families, missed some home-cooked meals, and doubled down on their workload. Other than by making contributions to their respective organizations—something that I certainly intend to do—it’ll be tough to figure out how to repay them for their kindness.
The next step is a court hearing, when we’ll debate this thing in open court in Buckingham. That was scheduled for next Thursday, but I understand that it may now be rescheduled.
In response to my Motion to Quash, the complainant’s attorney sent back a Motion to Compel yesterday, which is basically their response to my arguments as to why I shouldn’t have to comply with the subpoena. There are two bits about the Motion to Compel that are noteworthy.
The first is the claim that bloggers are not and cannot be journalists, and as such receive zero privileges under the law. This should be frightening to those of us who run community news blogs or political blogs, and perhaps doubly so to those who work with bloggers as they would journalists. I routinely communicate with sources for stories to whom I assure anonymity. My opposition argues that that veil can be pierced for the most slight of reasons. That’s a disturbing proposition.
The second is the attack on me for the comments that have been posted to cvillenews.com. Garrett complains that the comments are “tawdry, sophomoric, and spiteful.” The enormous irony is here is that the comments that fit that description were posted by Garrett himself (or, at least, somebody who says that he’s Garrett and demonstrates an extraordinary amount of knowledge about the man), all of which were pretty nasty attacks on me, libelously accusing me of committing criminal acts. And in an effort to claim that I have contempt for the legal process (as a reader of my blog, you understand that precisely the opposite is true), Garrett’s attorney cites a comment left by James Young, in which he recites a joke about judges told to him by a judge. (James, as you may know, is an attorney who recently argued a case before the Supreme Court.) Of course, I disagreed with everything that Garrett wrote, and I generally disagree with just about everything that James writes on my blog (and his). But their comments stood, because I believe that’s necessary in a healthy democracy. It’s enormously chilling to claim that bloggers are implicitly in agreement with the comments left on their blog by third parties and, worse still, hold them liable for that agreement.
The next step is a court date. That will take place sometime in the first week of March. I assume that both sides will get up before the judge and argue over the merits of each of our claims. Having never done such a thing, it appears that I’ll be a bit busy for the next few weeks, studying for my oral exams, as it were. I’ve approached a pair of Virginia legal groups who specialize in free speech cases, to ask if they would provide me with counsel for the occasion. We’ll see if either have the resources.
The Reporters Committee for Freedom of the Press has picked up the story of my subpoena, characterizing it as “sweepingly broad.” I have to admit that I’d never heard of the group before, but they’re quite an impressive group. Walter Cronkite, Dan Rather,
Tim Russert, and Judy Woodruff all sit on the board. They run a 24-hour legal hotline for journalists, the value of which I really appreciate now.
Ironically, I applied for membership in the Virginia Press Association a couple of months ago, but was turned down because I’m a blogger. I’m lucky that the groups that have shown interest in my case have less exacting standards.
Today I submitted a Motion to Quash the subpoena issued to me in Thomas L. Garrett, Jr. v. Better Publications, LLC. It took a couple of weeks of legal research to learn how to quash a subpoena, to study the subpoena to look for legal flaws, and then to manage to write this three-page document. What became clear to me while writing it is that this subpoena was just reprehensible. Call me trusting, but I find it surprising that it’s (apparently) acceptable for an attorney to issue such a recklessly over-broad, inappropriate subpoena. In the words of Sam Bayard, Assistant Director of Harvard’s Citizen Media Law Project:
[T]he subpoena requests are so broad and poorly tailored to the underlying litigation between Garrett and The Hook that one suspects the subpoena is meant to gather information for a potential new lawsuit or to harass Jaquith for making critical comments, rather than to obtain evidence for The Hook case.
The last couple of weeks have been hugely educational. I owe particular thanks to Mark Blacknell, Josh Wheeler, and Paul Levy, of Public Citizen, all of whom provided invaluable legal advice, editing, and support. I’m also grateful to Sam Bayard of the Citizen Media Law Project for providing his organization’s resources, and for connecting me with Paul.
The next step, as I understand it, is going to be me arguing this before a judge in Buckingham County. Having never done this sort of thing before, I’ll have to prepare like a doctoral candidate defending his thesis. That’ll be an adventure. (In the meantime, unfortunately, I’ve had very little time for Richmond Sunlight. Normally I’d be spending 2-4 hours on it each day, but it’s been more like 30 minutes daily for the past couple of weeks. Sorry, folks—I don’t like it, either.) It’s a lot of work, but I don’t like being pushed around by bullies, and I like even less bullies who want to push around my readers.
My motion to quash follows as HTML or, if you prefer, it’s available via Scribd. It’s really interesting, I don’t mind saying—plus, I put a lot of time into it—so I recommend reading it.
Harvard’s Citizen Media Law Project, a part of the Berkman Center, is my new best friend:
In perhaps the most blatant misuse of the subpoena power we’ve seen since the subpoena served on Kathleen Seidel of Neurodiversity last March, a lawyer for Thomas Garrett of Virginia has served a patently overbroad subpoena on blogger Waldo Jaquith, who publishes cvillenews.com,
a community news blog about Charlottesville, Virginia.
They go on. And on. And on. It’s just a joy to read. Working on my motion to quash this week, I was wondering if I was just delusional in thinking that the facts in this case area really, really clearly on my side, and that this subpoena is abusively broad. Turns out that I was onto something.
This is not the first time that the Berkman Center has helped me out. I’m a big fan of their work. Let’s see if Tommy Garrett sues the Harvard Law School now. I’d pay good money to see that.
I got subpoenaed. An area fabulist got nailed by the local weekly for trading on an invented story of his life. I wrote about it on my blog about Charlottesville, siding with the weekly, since the guy’s clearly been living a lie. Presumably as a form of intimidation, the guy’s subpoenaed me, and the subpoena is incredibly overbroad. In fact, under the terms of the subpoena, I have to turn over this blog entry, along with any comments that people post to it, possibly with identifying information for everybody who comments. A bad subpoena: it’s the gift that never stops giving.
Unfortunately, “hiring a lawyer to quash a subpoena” doesn’t appear in our household budget, so this is my crash course in the procedural end of law. It’s actually been fun, big dork that I am.