Paul Alan Levy
writes in to let us know about how a New Jersey School Board is trying to get around the Electronic Communications Privacy Act, which limits what information the government can get about online speakers, in order to find out the identity of some anonymous commenters
on a series of newspaper stories about teachers in the district using questionable diploma mills to get "degrees" and qualify for higher salaries.
I contacted Marc Zitomer, the School Board’s lawyer, to get his explanation for the subpoena.
His explanation was that the Board, as a body corporate, has the authority to file suit against members of the public who defame or threaten its staff. I rather doubt that a school board could file suit for defamatory words that are not "of and concerning" the school board – the of and concerning requirement, after all, is a constitutional requirement under New York Times v. Sullivan. Moreover, Zitomer conceded that he could not identify any cases in New Jersey where a school board had filed such an action on behalf of its staff. When I pressed him on these issues, Zitomer claimed that an additional reason for the subpoena was that the Board could take disciplinary action against any of the bloggers who were members of its staff. But even assuming that the criticism is a proper basis for discipline consistent with the First Amendment, the Board cannot compel the identification of bloggers on that theory without putting forward an evidentiary basis for believing that the bloggers are employees. It remains to be seen whether Zitomer will be able to do that.
Board member William Bruno has been quoted as justifying its subpoena on the theory that "If they have nothing to hide, what's the problem?"
You always know there's something bad going on when someone busts out the "nothing to hide" line. But, once again, this seems like attempts by thin-skinned officials who can't take the heat trying to expose anonymous commenters as an intimidation technique.