Church That Hoped to ID Protesters Ducks Penalty

     (CN) – A Michigan church that subpoenaed several anonymous email accounts after LGBT-rights activists interrupted its services should not face a sanction, the 9th Circuit ruled Monday.
     Members of the now-defunct group Bash Back disrupted services at Lansing’s Mount Hope Church in 2008, chanting, “‘It’s OK to be gay’ and ‘Jesus was a homo’ while flinging pamphlets, glitter, and condoms into the air,” according to the court.
     With the assistance of the conservative Alliance Defense Fund, Mount Hope filed a federal complaint against Bash Back, its Lansing chapter, 14 named individuals and seven John Does, alleging trespass and violations of the Freedom of Access to Clinic Entrances Act.
     Unable to learn the identities of the Doe defendants, Mount Hope subpoenaed the names of seven anonymous email account holders from service-provider Riseup Networks.
     Riseup and the email owners moved to quash the subpoena, claiming that it violated the First Amendment and was too broad, burdensome and vague in its requests. U.S. District Judge Richard Jones agreed. He denied the church’s motion to compel and quashed the subpoena.
     Then, further agreeing with Riseup that it had been forced to fight a “baseless” subpoena, he slapped the church with $28,000 in sanctions.
     Mount Hope appealed the order to the 9th Circuit and meanwhile settled with the defendants, winning a nationwide injunction that bars them from disrupting religious services and requires them to pay $2,750 in damages.
     A three-judge panel of the 9th Circuit handed Mount Hope another victory on Monday in a case of first impression for the federal appeals court. The Seattle-based panel reversed the sanction order after considering “whether losing a motion to compel … based on unpersuasive legal arguments, absent other aggravating factors, is enough to warrant … sanctions.”
     Simply put, it is not. If it were, the lawyer’s essential function would cease to be, the panel found.
     “The subpoena issued in the present action was narrowly tailored and did not at all pose an undue burden on Riseup,” Judge Ronald Gould wrote for the court. “To the contrary, what Riseup is complaining about is essentially the advocacy of its opponent, which it says improperly added to its burdens. But we do not think that the mere need to respond to an opponent’s advocacy in our civil justice system should be viewed as unduly burdensome when legal arguments are advanced in good faith. For our legal system to improve, to respond to current needs and not stagnate in the face of change and new requirements, lawyers should not have their advocacy efforts stifled and chilled.”
     “Sanctions for issuing a subpoena are in no way supported merely because a party advocated a position in seeking discovery that lost in the end,” Gould added. “The scope of permissible sanctions under Rule 45(c)(1) should not be so broad as to chill or deter the vigorous advocacy on which our civil justice system depends.”
     The Alliance Defense Fund is now known as the Alliance Defending Freedom.

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