Amongst the many powers of the prosecutor is the power to compel disclosure of information needed in the investigation and prosecution of crimes.  Or maybe not quite crimes.  Or maybe, just something the prosecutor would like to know.  Or maybe something that a cop friend who belongs to a church who has an anonymous blogger would like to know so they can teach that anonymous blogger a darn good lesson. 

Fortunately, Middle District of Florida Judge Marcia Morales Howard wasn’t inclined to put her faith in church member/cop Robert HInson or prosecutor/subpoena issuer Stephen Siegel.  Normally, this is where I would insert a quote from the decision in Rich v. City of Jacksonville, but it’s one of those insufferable decisions that goes on ad naseum on every minute tangent under the sun without providing a clear point, sentence or paragraph, that would serve to inform.  Anybody wanna bet that the judge’s clerk was on law review?  So instead, here’s Eugene Volokh’s synopsis :

The most important part of the decision rests on the Free Speech Clause, but the court also concludes that if issuing the subpoena was motivated simply by a desire to “prosecut[e] an errand of the Church,” then that would also constitute a violation of the Establishment Clause. In such a situation, the court says, “the state actor [would have] lacked a ‘secular purpose’ for his actions,” and the action would have had “a primary effect of advancing religion” as well as “enmesh[ing] churches in the exercise of substantial governmental powers.” “Such ‘active involvement of the sovereign’ in the internal affairs of a church, namely a dispute between a congregant and his pastor on matters of church doctrine and administration, would violate the very essence of the First Amendment.”

Great news?  Well, not exactly.  The decision arises in the context of a §1983 action.  The blogger is long since outed, anonymity be damned, because Comcast and Google complied with the subpoenas.  Whether Assistant State Attorney Siegel was playing errand boy for the church wasn’t their business; they get a prosecution subpoena, they comply.

The issue here is whether the blogger’s complaint for damages and injunctive relief should be dismissed.  Ultimately, Judge Howard says no, at least at this stage, because Siegel’s prosecutorial qualified immunity fails for lack of any legitimate state interest in his issuance of the subpoena.  But the judge isn’t particularly encouraging about the plaintiff’s chances for recovery.

That Judge Howard held that the prosecutor cannot use the subpoena power for personal purposes seems almost too obvious for words.  That there is no remedy before the harm is done, however, reduces any after-the-fact jousting to an exercise in futility.  Here’s a tough question: How does a person prove harm/damage by having the veil of anonymity lifted?  Sure, we have a right to anonymous free speech, but what’s the dollar figure on the loss of that right?

Remember, where there’s no remedy, there’s no right.  There’s no reason to respect a right when there’s no downside to violating it.  A firmly worded “don’t do that ever again” usually evokes a foot shuffle and a head turned downward.  Not in contrition, but to conceal the sneer from the judge.  Want to slap my other hand, judge?

It’s axiomatic that the law can’t cure every wrong that man can devise.  It just seems to do a particularly ineffective job of preventing prosecutors and police from using their enormous powers in violation of constitutional rights, and all the nicely conceived decisions that labor to explain the vast complexities of immunity somehow neglect to note that, at the end of the day, no one was saved and no constitutional right was protected.

The argument against withholding immunity from prosecutors, primarily grounded in the fear that they will lack to fortitude to do their jobs if they are functioning under an ever-present concern of liability, seems hardly a match for cases like this where the abuse of authority is flagrant and far afield of any conceivable legitimate purpose.  Granted, the federal chastisement of the conduct isn’t going to win ASA Siegel any prosecutor of the year awards, but it similarly doesn’t do much to restore the plaintiff to his rightful place of anonymity.

You don’t have to like anonymity online to recognize that the government can’t abuse its authority to strip someone of it.  And as this case shows, there’s little to be done to stop it.  The best we can hope for is a tiny chance, afterward, of getting to court to say mean things about the prosecutor, even if there’s no real remedy to be had down the pike.