Do Subpoenas Demanding Secrecy Violate the Constitution?
In numerous, documented cases involving the law, tension
between prosecutors, defense lawyers, witnesses, and judges was caused by the
controversial issue of “secrecy subpoenas.” More specifically, the issue at
hand is whether or not prosecutors, eager to protect their cases, go too far
and even violate a constitutional right when asking a witness to keep quiet
about a subpoena.
A federal subpoena arrived at the offices of Zuccarello,
Zerillo & Co. in early March of 2015. Prosecutors wanted records of one of
the firm’s clients: the Gigliottis, who were under investigation for cocaine
smuggling. In the subpoena was a message written in capital letters: “You are
hereby directed not to disclose the existence of this subpoena, as it may
impede an ongoing investigation.” The secrecy demand triggered a fierce rebuke
of the US Attorney’s office in Brooklyn by a federal judge. According to Judge
Raymond J. Dearie, “Policy was violated multiple times [in New York] and it is
apparent that such violations are not isolated to this case.” In fact,
violations are not just isolated to New York either. Records show that
subpoenas around the country have come dangerously close to violating the
constitution as well.
In the summer of 2015, Mike Alissa, publisher of the
magazine Reason, received a subpoena
from federal prosecutors in Manhattan asking for the account information of all
commentators from Reason.com who posted threatening comments towards a federal
judge. The cover letter of the subpoena read, “The Government hereby requests
that you voluntarily refrain from disclosing the existence of the subpoena to
any third party,” adding that the recipient was not under any obligation. By
law, this is legal.
The difference between the subpoena Alissa received and the subpoena received
by Zuccarello, Zerillo & Co. is that the Alissa subpoena suggested
that the recipient keep it a
secret instead of demanding it.The problem with demanding that a
recipient
keep a subpoena a secret is that it violates the First Amendment, which
includes the Establishment Clause and
the right of freedom of speech. Therefore, prosecutors cannot demand that a subpoena recipient keep the investigation a secret, or else they are violating that person's constitutional rights. According to Alex Abdo, a staff attorney for the American Civil Liberties Union, “[Under the First Amendment] the government is not allowed to silence its citizens without satisfying the highest standard in the law, and even then only after judicial review…” By law, recipients of subpoenas are allowed to tell anyone about them.
the right of freedom of speech. Therefore, prosecutors cannot demand that a subpoena recipient keep the investigation a secret, or else they are violating that person's constitutional rights. According to Alex Abdo, a staff attorney for the American Civil Liberties Union, “[Under the First Amendment] the government is not allowed to silence its citizens without satisfying the highest standard in the law, and even then only after judicial review…” By law, recipients of subpoenas are allowed to tell anyone about them.
Essentially, the difference between a subpoena violating the
constitution and a legal subpoena is word choice. Although
prosecutors are not allowed to demand subpoena secrecy, they are entitled to
suggest that the recipient of a subpoena keeps the information to themselves. After reading this article, I agree that prosecutors need to be more careful about the wording of their subpoenas, or else there could be issue an issue with impeding the recipient's right to freedom of speech. While freedom of speech is not considered a natural right, it is an expressed power. Freedom of speech is a right that is not taken for granted in our country, and is consistently used to defend the actions of citizens.
Want to know more about how subpoenas work? Watch this short video: https://www.youtube.com/watch?v=vzIz-6fghMs
No comments:
Post a Comment