The novelty in the government's approach is in its broad use of a grand jury subpoena, which is typically a way to gather evidence, rather than to confiscate all traces of it. But the subpoena issued to the A.C.L.U. seeks "any and all copies" of a document e-mailed to it unsolicited in October, indicating that the government also wants to prevent further dissemination of the information in the document.
The subpoena was revealed in court papers unsealed in federal court in Manhattan yesterday. The subject of the grand jury's investigation is not known, but the A.C.L.U. said that it had been told it was not a target of the investigation.
The subpoena, however, raised the possibility that the government had found a new tool to stop the dissemination of secrets, one that could avoid the all but absolute constitutional prohibition on prior restraints on publication.
The disputed document, according to the A.C.L.U., is three-and-a-half pages long and unremarkable, and its disclosure would be only mildly embarrassing to the government. It added that the document "has nothing to do with national defense."
"The government may be wanting to have its cake and eat it, too," said Rodney A. Smolla, the dean of the University of Richmond's law school. "It may want to present this to the court as not carrying heavy First Amendment implications. But to the extent the government wants to prevent the A.C.L.U. from disclosing the content of the document by virtue of this subpoena, it is a prior restraint."
If this is the government's tactic it is both ill advised and ineffectual. If a person receives an unsolicited document and wishes to allow it into the public domain, instead of considering it and the consequences of its disclosure, the person will be forced to act precipitously by virtue of the fear that a subpoena will be issued requesting all copies. Thus the consequence of success on the government's part in this little skirmish with the ACLU is to force news organizations who receive documents to, as it were, publish or perish. The Bush administration overreaches itself often without thinking. I don't think they have really thought the consequences through. Their knee jerk reaction does not consider what it will encourage in the future.
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