Freshwater: The defense goes fishing

And it’s not Freshwater or Hamilton holding the rod and reel.

The defense in Freshwater v. Mount Vernon Board of Education, the federal suit John Freshwater brought against the Board of Education, several administrators, and several Board members, recently issued a series of subpoenas to people ranging from Nancy Freshwater’s physicians to a couple of private citizens. While the former is arguably relevant to the case, the latter are not. Part of Freshwater’s claim in his suit is the adverse effect on his wife and loss of consortium, so her medical records are potentially pertinent. However, in at least two cases, the defense is clearly on a fishing expedition that among other things has chilling implications for the First Amendment rights of the recipients.

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Sam and Levi Stickle are local residents who have followed the Freshwater case with more persistence than even I have. They are firm Freshwater supporters, and Sam maintains a web site called Accountability in the Media on which he publishes material he sees as supportive of Freshwater, along with video clips of Board meetings and other material. Levi is a recent high school graduate, a young earth creationist and fan of Kent Hovind, who attended as many of the administrative hearing sessions as I did.

Both Sam and Levi received subpoenas for material from attorneys for the defendants in the case, the Board of Education and several administrators and current and former Board members. Those subpoenas are wide-ranging. Sam’s is here; Levi’s is identical to Sam’s.

Read the range of materials demanded: “Any and all documents, tape recordings, audio recordings, or objects, inclusive of all electronically stored information and metadata, that reflect, evidence, or otherwise concern:”, and then there’s a list of 17 more or less specific areas about which information is demanded including information about correspondence with one individual, Don Matolyak, who is arguably also not a principal in the case. That is, the subpoena demands information about correspondence between two private persons, neither of whom is a principal in the lawsuit.

The list is breath-taking in its breadth. For example, the subpoena demands

  1. Postings, statements, remarks, or any other published statement, whether private or public, on social networks for which Sam Stickle or has an account or password, including but not limited to Facebook, Myspace, Twitter, blogs or other posting networks of which Sam Stickle or is a member or has otherwise visited. (Italics added)

Essentially the defense is asking for everything Sam has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.

IANAL, but I know the state of law concerning bloggers and participants in internet discussions of cases like the Freshwater affair is unsettled. The First Amendment Center has an overview of that unsettled state. The Electronic Freedom Foundation has material on bloggers’ rights, though it doesn’t directly address the kind of issue raised by the subpoenas issued by the defendants in this case.

It seems clear to me that the defendants are out there fishing, energetically casting their subpoenas into marginally related pools in hopes of catching something, anything, but they know not what. I’ve read all the documents filed with the federal court in this case, and I see no hint of justification for it.