COMMENT
Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard
Amy Pomerantz Nickerson* 
57 UCLA L. Rev. 841

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Abstract

This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs. The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as where a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a showing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as where the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. This Comment suggests that notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving of compelled disclosures: The risk that coercive discovery techniques, such as subpoenas and search warrants, will chill freedom of expression. This Comment argues that given the inadequacy of current discovery laws and constitutional criminal procedure standards as a safeguard of free speech interests, the First Amendment should operate as an additional restriction on coercive investigatory powers. It thus makes the case for subjecting coercive discovery requests for information about speech-protected activities to a uniform, heightened discoverability standard. Specifically, it proposes a five-part framework under which courts should analyze whether certain speech-related information can be coercively discovered.


* Articles Editor, UCLA Law Review, Volume 57; J.D. Candidate, UCLA School of Law, 2010; B.S. Northwestern University, 2006.

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