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Dec 14, 2009

Man Bites Dog: Prosecutor Pays a Price for Chasing Commenters

(cross posted at the Citizen Media Law Project
When a dog bites a man, that is not news, because it happens so often. But if a man bites a dog, that is news. — attributed to  New York Sun city editor John B. Bogart (1848- 1921)

Unfortunately, it's become an increasingly common occurrence: a public official, outraged over something posted about him/her anonymously on the Internet, asks a court to issue a subpoena to find out the identity of the poster(s). The Legal Threats Database contains a number of examples, and the "Legal Protections for Anonymous Speech" section of the Legal Guide lays out the legal analyses that courts have used to evaluate these subpoenas. 

So it wasn't too surprising when Pittsburg County, Oklahoma District Attorney Jim Bob Miller issued a subpoena to Harold King, operator of the McAlester Watercooler forum site, seeking information, including (oddly) social security numbers, to identify about 35 pseudonymous posters on the site.  But what made the case unusual was that D.A. Miller was one of the individuals who had filed a complaint for criminal defamation (details here) against King with the local police. 

(The other complainants were local businessman Wayne Stipe—who had a physical altercation with King over the site—and his mother, Billie Jean Stipe.  Incidentally, Wayne Stipe's uncle, former state senator Gene Stipe, filed a criminal defamation complaint against King in 2005.)

After Miller issued the subpoena, his deputy, First Assistant District Attorney Richard Hull, sent a letter to Oklahoma Attorney General Drew Edmondson asking that Miller be removed from the case.  Miller then apparently recused himself, and all of the criminal complaints against King were referred to Kay County District Attorney Mark Gibson for investigation.

It took almost a year, but in September 2009 Gibson announced a charge in the case:  against Wayne Stipe for criminal assault and battery.  At the same time, District Attorney Miller agreed to a deferred prosecution agreement with Attorney General Edmondson’s office on a charge of "common barratry," which is "the practice of exciting groundless judicial proceedings," Okla. Stat. tit. 21, § 550.  The offense is a misdemeanor,  Okla. Stat. tit. 21, § 551, punishable by up to one year of imprisonment and/or a fine of up to $500.  Okla. Stat. tit. 21, § 10.

As part of the deferred prosecution agreement, Miller agreed not to seek re-election in 2010.  The agreement also waives the statute of limitations on the charge, so that the prosecution can proceed if Miller does run for a new term.

"It's our opinion that the district attorney did not have the authority to issue that subpoena," a spokesman for Attorney General Edmondson said in announcing the agreement, according to the McAlester News-Capital.  "To settle the state's concerns, Oklahoma Attorney General Drew Edmondson's office has agreed to a deferred prosecution agreement on a charge of common barratry."

"There's a real problem when you're the victim issuing a subpoena in a criminal case," Attorney General Edmondson told the Daily Oklahoman. "That's what gave rise to the complaint."

In a statement to the Oklahoman, Miller commented on his decision not to run for re-election: "It was a decision that I have considered for many months, but which was obviously helped along by the allegations from the attorney general’s office."

But the operator of the McAlester Watercooler site was not satisfied.  "I consider this a political cover-up," Harold King told the News-Capital. "This was to get Jim Bob off with as little as possible. They had to look long and hard to find a misdemeanor." There's more commentary in this vein by King and his audience on the Watercooler site.

While King is not satisfied, this is a rare case in which an elected official was held accountable for misusing his office in order to seek the identity of anonymous online critics.  And as such, it should be a cautionary tale for other politicians contemplating the use of government power to unmask and intimidate their critics, both online and off.

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