In Re Grand Jury Subpoena No. 11116275 , 846 F. Supp. 2d 1 ( 2012 )

FILED
FEB 2 3 2012
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA C|erk, U.S. Distl'ict & Bankrupfcy
Courts for the District of Columbia
)
IN RE GRAND JURY SUBPOENA ) Misc. NO. 11-527 (RCL)
NO. 11116275 )
)
MEMORANDUM AND ORDER
Before the Court is a Motion to Intervene and to Quash [1] filed by the individual who
utilizes the Twitter.com username [redacted] and the pseudonym [redacted] (hereinafter "Mr.
X").l Mr. X seeks to quash a subpoena issued against 'l`witter by a federal grand jury in the
District of Columbia for records pertaining to his identity. Upon consideration of the motion, the
govemment’s opposition, and the individual’s reply, the Court will grant the motion to intervene
and deny the motion to quash.
I. BACKGROUND
This matter arises out of Mr. X’s professed desire to engage in sadomasochistic activities
with Congresswoman and presidential candidate Michele Bachmar1n. Mr. X posts to
http://wvvw.twitter.corn/, a social networking Web site that restricts users to messages of 140 or
fewer characters. The grand jury issued its subpoena to Twitter, Inc. on August 5, 20ll,
demanding that Twitter provide "any and all records pertaining to the identity of user name
[redacted]." Mr. X posted the message, or "tweet," that provoked the subpoena and is the subject
' [redacted] likely refers to [redacted]. In the novel, [redacted] an African American standing trial for the alleged
rape of a white woman in a segregated town in the South. [redacted] see [redacted] (1981). Meanwhile, [redacted]
likely refers to [redacted], a brutal [redacted] revolutionary and murderer [redacted]. See, e.g, [redacted] A.M.),
[redacted]. The Court chooses to refer to the anonymous movant as "[redacted]."
1
of this motion on August 2, 2011, at 9:32 p.m; it no longer appears on the user’s Twitter page.
The tweet read: "I want to fuck Michelle Bachman in the ass with a Vietnam era machete."z
Unfortunately, an overview of Mr. X’s Twitter page is warranted Mr. X’s body of
tweets is extremely crude and in almost incomprehensibly poor taste. Occasionally political but
consistently vacuous, his oeuvre represents an infantile attempt at humor that brings to mind the
most obscene aspects of Andrew Dice Clay,3 but without even the inf`initesimal modicum of
artistic creativity that Mr. Clay managed to possess. The page is entirely without merit, comedic
or otherwise. More offensive even than Mr. X’s chosen vocabulary is the pathetic transparency
and vapidity of his attempt to elicit the attention on the Internet that he surely lacks in real life.
Somehow, this attempt has succeeded to the tune of, at the time of the issuance of this Order, 736
followers-a number that will certainly and regrettably grow once this Order is released to the
public. A sad state of affairs indeed. But further criticism is unwarranted.‘l Readers are free,
though ill-advised, to form their own opinions regarding Mr. X’s output on their own time. lt
suffices here to include a mere sampling of some representative tweets, which are replicated
without modification:
2 'I`he govemment represents that the tweet at issue read, "l want to fuck Michelle Bachmann in her ass with a
Vietnam era Machete." Because the tweet no longer appears on Mr, X’s page, the Court cannot verify the correct
formulation At any rate, the differences are immaterial.
3 See, e.g., Janet Maslin, Review/Film; Andrew Dice Clay Essence.' Misogyny, Insult and Sex, N.Y. Ti1nes, May l8,
199l, available at http://www.nytimes.corri/l991/05/18/movies/review-film-andrew-dice-clay-essence-misogyny-
insult-and-sex.html.
4 And irrelevant to the forthcoming First Amendment inquiry. lt goes without saying that the First Amendment
applies to even the most tasteless of speech, see, e.g., Hustler v. Falwell, 485 U.S. 46, 48 (1988) (involving a
political parody wherein Hustler magazine portrayed Rev. Jerry Falwell as admitting he lost his virginity "during a
drunken incestuous rendezvous with his mother in an outhouse"); see also New York Times v. Sullivan, 376 U,S.
254, 270 (l964). Even still, readers deserve an honest assessment of Mr. X’s Twitter page without having to debase
themselves by viewing it personally.
Godamn I smacked my wife with my Dick Now she has a cock shaped
bruise on her face... Take that take that take that
Marcus Bachmann is sponsoring a scavenger hunt in his home-town ln the
hopes someone finds his Heterosexuality .
Why does Jesus only communicate With Republicunts and Crazy people?
#redundants
My dick testified in court today in the case against my left hand "He beat
me,your honor every day for 25 years"
Some of us take great pride in being anti-establishment god loathing
socialist degenerate douche Nuggets with Psychopathic Tendencies
Upon receiving the subpoena, Twitter informed Mr. X of its existence and of Twitter’s
intent to comply unless Mr. X filed a prompt motion to quash. This motion followed.
II. DISCUSSION
Mr. X seeks to quash the subpoena directed at Twitter pursuant to Fed. R. Crim. P. l7(c),
which permits a court to quash a subpoena duces tecum if "compliance would be unreasonable or
oppressive."6 The public, acting through the grand jury, "has a right to every man’s evidence."
Um`tea' States v. Nixon, 418 U.S. 683, 709 (1974) (quotations omitted). Although this right
5 Users of Twitter commonly place hashtags, signified by a number sign (#), in front of words to signify the topic,
genre or style of the tweet; users can then search for or sort tweets by hashtag.
6 The government does not oppose Mr. X’s motion to intervene, and intervention is plainly appropriate where Mr.
X’s First Amendment rights are at issue. See, e.g., Um'ted States v. Hubbard, 650 F.2d 293, 311 n.67 (D.C. Cir.
1980)‘, In re Grand Jury Proceedings, 201 F. Supp. 2d 5, 9 (D.D.C. 1999).
The Court notes, however, the oddity of permitting a wholly anonymous movant to invoke the power of the federal
judiciary. Norrnally, participation in litigation requires an individual to identify himself, and anonymity is a "rare
dispensation." Unitea’ States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quotations omitted). When
considering a request for anonymity, "the court has a judicial duty to inquire into the circumstances of the particular
cases to determine whether the dispensation is warranted." Id. (quotations omitted). Anonymity is most
troublesome in the context of an anonymous plaintiff suing a defendant, which raises due process concems. Id. at
1463. However, in this case, Mr. X’s identity is unknown to the govemment or the grand jury, and it is that very
anonymity that is the subject of the dispute. Especially since the govemment has conceded to Mr. X’s intervention,
the Court is satisfied that it should allow Mr. X to remain anonymous.
3
provides the grand jury with the concomitant power to subpoena witnesses, this power is not
absolute. In particular, a grand jury may not compel testimony from an individual who holds a
valid "constitutional, common-law, or statutory privilege," ia’., because compliance in such a
scenario would be "unreasonable or oppressive" for the purposes of Rule l7(c). See, e.g., In re
Grand Jury, John D0e N0. G.J. 2005-2, 478 F.3d 581, 585 (4th Cir. 2007). Mr. X has a right
under the First Amendment to post on the Intemet, and to do so anonymously. See Mc]nzfyre v.
Ohz`o Electz`ons Commz`ssion, 514 U.S. 334, 357 (1995) ("Anonymity is a shield from the tyrarmy
of the majority."); Reno v. ACL U, 521 U.S. 844, 870 (applying the First Amendment fully to the
Internet); see also Sinclair v. TubeSockTedD, 569 F. Supp. 2d 128, 131 (D.D.C. 2009).
Accordingly, the grand jury may not subpoena Twitter to gain information regarding Mr. X’s
identity unless the government can show "a compelling interest in the sought-after material" and
"a sufficient nexus between the subject matter of the investigation and the information they
seek." ]rz re Grana' Jury Irzvestigation of Possible Violatz'on 0f18 U.S.C. § 1461 , 706 F. Supp. 2d
11, 13(13.D.C.2009)7
In practice, the "compelling interest" and "sufficient nexus" requirements involve a
straightforward inquiry into whether the information sought is truly necessary to the grand jury’s
investigation. See, e.g., In re Grancl Jury Subpoena Duces Tecurn, 78 F.3d 1307, 1312-13 (8th
Cir. 1996); In re Grand Jury Proceea'ing, 842 F.2d 1229, 1236 (11th Cir. 1988) ("A good-faith
criminal investigation . . . is a compelling interest"); but cf, e.g., In re Grand Jury Subpoerza,
7 The govemment represents that it may be investigating the tweet as a violation of 18 U.S.C. § 875(c), which
criminalizes the transmission "in interstate or foreign commerce" of "any communication containing any threat to
kidnap any person or any threat to injure the person of another . . . ." The subpoena at issue identified a possible
violation of 18 U.S.C. § 115, which criminalizes threats to "assault . . . a United States official . . . with intent to
impede, intimidate, or interfere with such official . . . or with intent to retaliate against such official . . . ." The First
Amendment analysis is the same for either statute.
246 F.R.D. 570 (W.D. Wisc. 2007) (noting that the court was satisfied that "the government has
a bona fide investigative need" to interview individuals who bought books from a target
company, but requiring grand jury to solicit volunteers for interviews). That approach has the
benefit of easy application in many cases. Here, however, Mr. X argues that the govemment
lacks a real investigative need for his identity. The First Amendment limits the authority of the
federal govemment to criminalize speech, and in this context would only allow prosecution of
Mr. X if his tweet constituted a "true threat." In order for a threat to be "true," its speaker must
mean "to communicate a serious expression of an intent to commit an act of unlawful violence to
a particular individual . . . ." Virginia v. Black, 538 U.S. 343, 359 (2003). Mr. X argues that this
is a purely objective test: Would a reasonable person view the statement as expressing a serious
intent to cause harrn? Since reasonable people viewing Mr. X’s tweets do not know his identity,
he posits that the grand jury need not know his identity to determine whether there exists
probable cause to indict.
There are many problems with this line of reasoning. First, although many circuits apply
an objective test to determine whether a statement is a "true threat," see, e.g., United States v.
Armel, 585 F.3d 182, 185 (4th Cir. 2009), the D.C. Circuit has not ruled on the issues Further, a
close reading of Black raises doubts about an objectivity requirement. There, the Supreme Court
held that the First Amendment permits criminalization of the act of burning a cross with intent to
intimidate, The Court noted that, "while a burning cross does not inevitably convey a message
of intimidation, often the cross burner intends that the recipients of the message fear for their
lives." Black, 538 U.S. at 357. Regardless of whether any individual act of cross-burning was
8 And indeed does not seem to have addressed the "true threat" doctrine since Alexander v. United States, 418 F.2d
1203 (D.C. Cir. 1969).
objectively intimidating, the First Amendment permitted criminalization of the act when done
with intent to intimidate. If that is the case, it seems odd that in other "true threat" cases the First
Amendment would require proof of the threat’s objective effect. More to the point, the Court
spoke more generally of a true threat as the manifestation of a speaker’s "intent of placing the
victim in fear of bodily harm or death." Id. at 360. Again, the focus was not on the objective
effect of the threat, but on the speaker’s state of mind. This Court therefore doubts the propriety
of grafting an additional requirement of objective effectiveness on the crime of uttering a
statement subjectively intended to cause fear. Cf United States v. Bagdasarian, 652 F.3d 1113,
1117 (9th Cir. 2011) ("[W]ith respect to some threat statutes, we require that the purported threat
meet an objective standard in addition [to a subjective standard], and for some we do not."
(emphasis in original)); ia’. n.14.
Although an objectivity requirement may seem prudent in some cases, an objective
inquiry is uniquely problematic for anonymous threats-particularly those made on the Internet.
Cf id at 1120 n.20 (discussing how anonymity of threat can make threat appear more or less
salient). The anonymity of a threatening communication introduces an element of ambiguity that
renders an assessment of the threat’s legitimacy difficult. A reasonable recipient of such a threat
simply may not know whether she ought to take it seriously. Although the recipient of a threat
may always have some doubt about the likelihood of the threatened act materializing_such as
when the recipient is ignorant of basic details regarding the identified speaker-the recipient of a
truly anonymous threat will rarely be able to assess its validity.
Even if objectivity were relevant to Mr. X’s guilt, the grand jury would still need to
investigate both the objective effect of the supposed threat, and Mr. X’s subjective intent to
threaten at the time of posting, as the government would need to prove both.g Accordingly, the
grand jury would still be entitled to make an independent inquiry into Mr. X’s subjective intent.
And the Court can easily see how information about Mr. X’s identity could be relevant to a grand
jury_indeed, such information might prove dispositive of the probable cause question. The
grand jury ought to know if Mr. X has a history of making threats to political candidates in other
forums, or has stalked or engaged in other sinister behavior toward Ms. Bachmann, or happens to
actually own a Vietnam-era machete. The government and the grand jury surely must know the
identity of an individual making a threat in order to ascertain whether he intended the threat to be
93
"true. The govemment has thus satisfied the "compe1ling interest" and "sufficient nexus"
requirements.
lt bears note that the Court has grave doubts about the likelihood of a grand jury returning
an indictment in this case. A "true threat" requires a "serious expression of an intent to commit
an act of unlawful violence." Black, 538 U.S. at 359. There appears to be nothing serious
whatsoever about Mr. X’s Twitter page, except perhaps the severity of mental depravity that
would lead a person to produce such posts. Furtherrnore, in Watts v. United States, the Supreme
Court considered a Vietnam War protestor’s statement that, if drafted and given a rifle, "the first
man l want to get in my sights is L. B. J." 349 U.S. 705, 706. The Court determined that such
"political hyperbole" did not constitute a "true threat." Id. at 708. A fortiori, it seems, were Mr.
X to bring a motion to quash an indictment based merely on the facts now before the Court, the
Court might well have occasion to grant that motion.
9 Mr. X argues that an intent to do physical harm is not a necessary component of a threat’s status as "true." See
Black, 538 U.S. at 359 (noting that the "speaker need not actually intend to carry out the threat"). This is correct;
the intent at issue is the intent to provoke fear, i.e., to have the statement interpreted as a threat.
7
But this is not a motion to quash an indictment, lt is a motion to quash a subpoena, and
the govemment has the right to make its case to the grand jury that Mr. X has committed a crime.
ln Bagdasarian, the Ninth Circuit determined that the defendant’s anonymous message board
posts_"Re: Obarna fk the niggar, he will have a 50 cal in the head soon," and "shoot the nig
country fkd for another 4 years+, what nig has done ANYTHING right???? Long term????
Never in history, except sambos"-did not constitute "true threats." 652 F.3d at 1124. Despite
that rather striking conclusion, the Court nonetheless noted that "[a]ll threats against the
President or a major presidential candidate must be taken seriously until it is established that
there is no reason to do so." Id. at 1121 n.20. This Court could not agree more. The
government must take seriously all threats against a major presidential candidate such as Ms.
Bachmann, unless and until it is satisfied that there is no likelihood that the threat was legitimate.
Part of taking a threat seriously may include attempting to convince a grand jury to return an
indictment. And if a grand jury does return an indictment, it then becomes the role of the courts
to decide the sufficiency of the indictment, see., e.g., United States v. Alkhabaz, 104 F.3d 1492(6th Cir. 1997) (affirrning district court quashing of indictment involving threat), or the jury to
determine whether the threat is "true," see, e.g., United States v. Malik, 16 F.3d 45, 49 (2d Cir.
1994) ("Whether a given writing constitutes a threat is an issue of fact for the trial jury."), or an
appellate court to reverse a conviction, see, e.g., Watts, 349 U.S. at 708, among other potential
dispositions. But it is for the Executive, not a court, to decide whether an investigation is even
worth pursuing. Cf Dinler v. Cz`ly of New Y0rk, 607 F.3d 923, 948-49 (2d Cir. 2010) ("[W]e
think that an intrusion into the executive branch’s historic control over criminal investigations
that unreasonably jeopardizes public safety amounts to a clear abuse of discretion, if not a
judicial usurpation of power." (quotations omitted)).
8
Mr. X argues that his tweet does not constitute a "threat" on its face, and thus that the
government has no legitimate, much less "compelling," interest in pursuing it. ln particular, Mr.
X stresses that his use of the term "l want to," as opposed to "I’m going to" or "l plan to,"
renders the tweet a mere expression of desire as opposed to a threat. But expressions of desire
can still place a recipient "in fear of bodily harm or death," Black, 538 U.S. at 360. If Mr. X
were standing next to Ms. Bachmarm with a Vietnarn-era machete in hand, and had spoken
instead of tweeted the message, Ms. Bachmarm would take cold comfort in those first few words.
Wanting to do something is often, though not always, a predicate to actually doing something,
and while history and literature may be full of reluctant killers, see, e.g., Williarn Shakespeare,
Harnlet, passim; Crimes and Misdemeanors (Orion 1989), the Court is aware that many
murderous members of our society do not share such trepidation. Use of the phrase "I want to"
may signify an inchoate wish, or may indicate a goal toward which an individual is actively
working. Mr. X’s use of the word "want" instead of "plan" cannot be dispositive.
Additionally, Mr. X emphasizes the context of his tweets as a whole, and the ludicrous
nature of the tweet at issue. With apologies for its reiteration, the Court must parse the exact
language used Mr. X’s statement that he wants "to fuck Michelle Bachman in the ass with a
Vietnam era machete" is indeed a grammatical threat. What Mr. X is describing is the forcible
insertion of an extremely sharp, real-world weapon into Ms. Bachmann’s rectum, which, if
performed, would undoubtedly cause serious bodily injury-and likely death. On its face, the
statement expresses a threat of violence.lo And while the statement appears within a larger group
'° Mr. X argues that his tweet is as absurd as if he had said, "1 want to give Michele Bachrnann a kick in the ass that
will sender her all the way to Mars," or "l want to put Michele Bachmann in a time machine and send her back to
the middle ages where she belongs." But these two analogies exist outside the realm of physical possibility. lt is
physically possible, though hopefully unlikely, that an individual could do to Michele Bachmann what Mr. X
professed a desire to do in the tweet at issue.
of preposterous tweets, this does not automatically render the threat toothless. Again, it may
well be that a court would find as a matter of law, or a jury might find as a matter of fact, that
this tweet was simple “political hyperbole," Watts, 349 U.S. at 708, and not a "serious expression
of an intent to commit an act of unlawful violence," Black, 538 U.S. at 349. But that is not the
present inquiry. Mr. X has tweeted a prima facie threat, and the govemment is entitled to
determine whether it is a true threat.
The Court is aware that this conclusion may seem to produce absurd results. Under this
line of reasoning, the government could presumably subpoena any Web site any time any
anonymous user made any post containing a mere scintilla of violence. The government could
require Twitter to divulge the identity of a teenager who tweets, "My parents are so mean! 1 want
to toss them in a ditch." Anonymity on the lntemet would be sufficiently compromised to
warrant this Court’s concern.ll But we are nowhere near that slippery slope. Here, an individual
has made a statement that threatens an established candidate for the presidential nomination of
one of our two major political parties, and the govemment has a strong public interest in
investigating that threat, however outlandish.
Political assassination is one of the most destructive tools in the arsenal of domestic
terrorism. The brutal and cowardly murders of Abraham Lincoln, James Garfreld, William
" Part of the tension in applying the standard "compelling interest" test to this case arises because of the purported
crime being investigated. Where the crime is unrelated to speech-assume, for example, Mr. X incriminated
himself on his Twitter page with regard to a specific real-world crime for which the government was investigating
suspects-it makes sense to ask merely whether the information sought is crucial to the grand jury’s job in
ascertaining probable cause. At that point, one not need inquire into the likelihood that the investigation will indeed
produce a favorable probable cause determination The merits of the investigation are irrelevant.
Here, though, the First Amendment applies doubly. lt protects Mr. X’s anonymity, and it limits the govemment’s
ability to criminalize Mr. X’s speech. Its ability to do the former is, in the case law, divorced from the latter. But
that seems as if it cannot be. lf so, the govemment could eviscerate the right to communicate ideas that fall below
the level of a true threat anonymously on the Intemet. Nonetheless, this case presents a narrower inquiry.
10
McKinley, and John F. Kennedy have left an indelible stain on the collective consciousness of
this nation. These abhorrent and devastating acts desecrate this country’s very dignity and have
irrevocably altered its history for the worse. And there have been no fewer than six close but
unsuccessful attempts on the lives of our Presidents (Andrew Jackson, Harry Truman, Gerald
Ford [twice], Ronald Reagan, and Bill Clinton), with an additional two attempts on a former
President (George H. W. Bush) and a President-elect (Franklin Roosevelt). These despicable
events have been some of the most traumatic and consequential moments in our Republic,
ranking alongside the firing on Fort Sumter, Pearl Harbor, and September 1l, 2001.
The United States of America has a nearly existential need to ensure the safety of its
Commander-in-Chief. As Justice Breyer has explained:
The physical security of the President of the United States has a special
legal role to play in our constitutional system. The Constitution vests the
entire "Power" of one branch of Government in that single human being,
the "President" of the United States. He is the head of state. He and the
Vice President are the only officials for whom the entire Nation votes.
And he is responsible for the actions of the Executive Branch in much the
same way that the entire Congress is responsible for the actions of the
Legislative Branch or the entire Judiciary for those of the J udicial Branch.
He has been called "‘the sole indispensable man in government."’ Thus,
one could reasonably believe that the law should take special account of
the obvious fact that serious physical harm to the President is a national
calamity . . . .
Rubin v. United States, 525 U.S. 990, 990-91 (Breyer, J., dissenting from denial of writ of
certiorari) (citations omitted). lndeed, "[t]he Nation undoubtedly has a valid, even
overwhelming interest in protecting the safety of its Chief Executive and in allowing him to
perform his duties without interference from threats of physical violence." Watts, 394 U.S. at
707.
11
Although perhaps most destructive at the Presidential level, all political assassination
attempts, successful or not, threaten the effective workings of our democracy. From the recent
attempt on Congresswoman Gabrielle Giffords, to the untimely death of the Rev. Dr. Martin
Luther King Jr., all such acts of villainy scar this country. The assassination of Robert F.
Kennedy during his Presidential campaign constituted a grave blow, adding further pain to the
still-lingering wounds dealt by his brother’s demise. The safety and security of those who
seriously aspire to the federal govemment’s highest office is of paramount concem to each and
every citizen because threats to Presidential candidates undermine the very legitimacy of our
electoral process. Accordingly, law enforcement officials investigating possible threats to such
candidates should not be required to automatically shut down their inquiry whenever a First
Amendment question is raised Merely issuing a subpoena to uncover the identity of the speaker
so that the police can ascertain whether a threat is valid carmot be deemed a Constitutional
violation.
lt bears repetition that this matter is before the Court prior to the issuance of an
indictment. No charges have been filed No interviews with Mr. X have been arranged This is
a very preliminary step, in apparent good faith,lz to see if the tweet at issue is in fact a "true
threat." Other steps may infrequently be taken, and hopefully need not be taken in this case.
III. CONCLUSION AND ORDER
12 The defense of vindictive prosecution and the cause of action for malicious prosecution under the Federal Tort
Claims Act allow an individual to challenge the institution of criminal proceedings against him for inappropriate
reasons, such as a reprisal for the exercise of constitutional rights. See Wayte v. United States, 470 U.S. 598, 608
(1985) (discussing vindictive prosecution defense); Moore v. Hartman, 644 F.3d 415 (D.C. Cir. 2011) (involving
malicious prosecution claim under FTCA). lf the govemment lacks a good faith basis for its investigation, the most
natural time to adjudicate that issue would be post-indictment, And although Mr. X argues that his tweet did not
constitute a "true threat," Mr. X does not insinuate that the govemment lacks good faith, and the Court sees no
reason to doubt the govemment’s motives.
12
The government is investigating Mr. X for having made a prima facie threat of violence
addressed to a major presidential candidate. The govemment has a compelling interest in
pursuing that investigation, and Mr. X’s identity must be known for the grand jury to make an
informed probable cause deterrnination. lt is therefore hereby
ORDERED that Mr. X’s Motion to Intervene is GRANTED; and it is further
ORDERED that Mr. X’s Motion to Quash is DENIED.
Signed by Royce C. Lamberth, Chief Judge, on December 9, 2011.