A foreign country makes certain kinds of speech a crime, or makes it civilly actionable. Under American First Amendment law, on the other hand, such speech is protected. It seems very likely that any foreign civil judgment based on such speech would be unenforceable in American courts, see, Telnikoff v. Matusevitch (Md. 1997); Bachcan v. India Abroad Publications Inc. (N.Y. trial ct. 1992). But what about attempts to use American courts’ subpoena powers to unmask such speakers, so they can be more easily sued or prosecuted for the speech in foreign courts?

That’s what seems to be going on in In the Matter of the Application of Action and Protection Foundation; Daniel Bodnar, now pending in the federal court for the Northern District of California. The decision I’ll quote shortly is from last year, though I just came across it; but the subpoena does not seem to have succeeded in unmasking the speaker, so there’s a follow-up subpoena application now pending (filed April 3, 2015). Here’s an excerpt from the 2014 decision, describing the applicants’ allegations:

The applicants filed complaints … in civil and criminal proceedings in Budapest, Hungary…. Bodnar says that the investigations will be stymied without the discovery requested in the subpoenas. Two criminal cases had to be suspended for the inability to identify the offender: (a) Case No. 01050/4335-3/2013 (relating to Holocaust denial on Kuruc.info) and (b) Case No. 01050/4253/2013 (same). Mr. Bodnar’s civil complaint for defamation (Case No. 1.B.33.088/2013/2) was unable to proceed due to the inability to identify the offender. If the offender is identified, the case may be reopened….
Mr. Bodnar and other directors of the Foundation have been held up to public ridicule by Kuruc.info. Mr. Bodnar has been specifically targeted by Kuruc.info through “hateful, defamatory, libelous and slanderous articles and postings,” and through them has been subjected to fear, intimidation and ridicule. Kuruc.info conceals the identities of the individuals behind Kuruc.info.
Mr. Bodnar attaches a November 14, 2013 article from the San Francisco Chronicle about Kuruc.info that describes it as (1) regularly disputing the Holocaust, (2) organizing hate campaigns against Hungary’s lesbian, gay, bisexual, and transgender and Roma communities, and (3) publishing last year the photographs, home addresses, and phone numbers of demonstrators protesting outside the Budapest home of an accused Hungarian Nazi collaborator named Laszlo Csatary, “who sent thousands of Hungarian Jews to their deaths in World War II.” The Chronicle identifies Bela Vara as the registered owner of the website and says that the “writers and editors [of the website] are in Budapest.[“] …

Now disputing the Holocaust is fully protected by the First Amendment. Organizing “hate campaigns” based on sexual orientation and ethnicity is protected, too; there is some controversy over whether this applies to such speech in foreign countries (see this post), but it seems likely to me that ultimately U.S. courts will conclude that it does. Publishing personal information about people who are picketing someone’s home is likely also constitutionally protected, even recognizing the risk that some listeners will use that information for criminal purposes. And while certain classes of defamatory speech are unprotected by the First Amendment, judgments under foreign libel laws that are less speech-protective than American libel laws can’t be enforced in the U.S.; that’s the holding of Telnikoff and Bachcan, and also the rule under the federal SPEECH Act.

But even if an American court wouldn’t enforce a foreign judgment based on this speech, should it help in the foreign lawsuit — or prosecution — by enforcing a coercive subpoena ordering American service providers (and others) to identify the speaker? Here, this is a lawsuit and prosecution based of seemingly pretty contemptible speakers, based on alleged Holocaust denial, anti-gay/anti-Roma speech, release of personal information, and libel. Yet similar issues could arise with regard to a foreign lawsuit and prosecution related to blasphemy or criticism of government officials, and there’s no obvious way to draw a line between these kinds of speech. Both Holocaust denial and blasphemy, after all, would be protected in America under the First Amendment; both are by hypothesis unprotected under the law of the foreign country. I can’t see how a court can say that one is protected against liability but not against subpoenas, while the other is protected both against liability and subpoenas.

In any event, the 2014 district court decision allowed the subpoenas to be served, but gave an opportunity for the filing of motions to quash by both (a) the recipients of the subpoenas (Bela Varga and Cloudflare) and (b) the subscribers whose information is being targeted by the subpoena. But as best I can tell from the record, neither filed such motions to quash. Now, there is another opportunity for the recipients of the April 3, 2015 subpoena (Bela Varga’s wife Judi Pesti, Leaseweb.com, and Umpqua Bank) and for the targets to file such a motion. It will be interesting to see whether they do that, and then what the federal court does.