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Allen v. City of New York (Defending qualified First Amendment privilege for news gatherers)

At issue in this case is whether a qualified First Amendment privilege with respect to non-confidential materials extends to an organization engaged in newsgathering and publishing, thereby excusing such an organization from responding to a subpoena for information that can be reasonably obtained from an alternative source. During the World Economic Forum held in New York City in February 2002, a group of protesters engaged in a largely peaceful march on the sidewalks of the Upper East Side of Manhattan. Despite the predominantly peaceful nature of the march, a large number of individuals were arrested. Many of those arrested filed a civil rights suit against the city and members of the NYPD claiming that they were engaging in peaceful non-obstructive parading and that their arrests were unlawful. In an attempt to claim that the organizers of the march planned to engage in obstructive behavior, the city directed a third party subpoena to the New York City Independent Media Center (Indymedia).

The city claimed that many of the marchers learned of the weekend’s events from an Indymedia Website, and sought the names of the organizers of the march in an effort to determine the motives of the organizers and to impute that motivation to the plaintiffs, who were claiming to have intended a purely peaceful event. On Dec. 14, 2004, the NYCLU wrote a letter to the city’s Law Department stating that Indymedia is not a party to the lawsuit, is entitled to a qualified news- gatherers privilege under the First Amendment, and is therefore not required to produce the documents that are requested under the subpoena. Furthermore, the letter pointed out that the City could reasonably obtain the information in question through a simple internet search. The city, nonetheless, moved to compel Indymedia to respond to the subpoena.

In defending against the motion, the NYCLU argued not only that Indymedia was entitled to a qualified First Amendment privilege, but that the effort to impute a lawless motive to the plaintiffs based upon the motives of the organizers of an expressive event would itself violate the First Amendment. The court has since rejected the city’s application to enforce the subpoenas upon the ground that the information requested was not relevant to the underlying damage action. The court, therefore, did not reach the First Amendment issues. 

S.D.N.Y., Index No. 03 Civ. 2829 (KMW)(GWG) (direct) 

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