December 4, 2013
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School board issued subpoenas to Google and BaristaKids to learn identities of anonymous critics

NEWARK – A Superior Court Judge in Essex County issued an order temporarily quashing subpoenas issued by the Montclair Board of Education regarding an anonymous online poster represented by the American Civil Liberties Union of New Jersey (ACLU-NJ). In addition, the judge ordered that the board of education may not issue any additional subpoenas seeking the poster’s identity until the judge makes a decision on whether to permanently quash the subpoenas.

Another hearing on the issue is scheduled for January 9.

The ACLU-NJ filed a complaint on Dec. 3 and requested a court order to quash a subpoena the Montclair Board of Education issued to Google to learn the identity of an online poster who has criticized the district. The ACLU-NJ learned through a public records request that the district has also issued a subpoena to the popular community news site, BaristaKids, seeking the identity of its client and other anonymous critics.

The subpoenas were issued after a copies of assessment exams were discovered to be posted to a public website days before they were to be given to students. The tests have been the subject of intense debate in Montclair.

The ACLU-NJ is representing one of the anonymous posters, who uses the user name, “Assessmentgate,” who has denied having any involvement with the security breach. The Montclair Board of Education issued a subpoena to Google on Nov. 7 seeking identity of “Assessmentgate,” who uses a Gmail address.

“They have no justification for believing our client is responsible for the security breach, other than the fact that our client has been vocally critical of assessment exams,” said Jeanne LoCicero, deputy legal director for the ACLU-NJ. “Speculation and unsubstantiated beliefs can’t outweigh a person’s right to speak anonymously. Regardless of where you stand on the assessment exams, we should all respect the constitutional right to free speech.”

The ACLU-NJ is asking the Essex County Superior Court to block the Google subpoena and to stop the district from issuing subpoenas that seek to uncover “Assessmentgate’s” identity. The ACLU-NJ argues the subpoenas are unconstitutional because the board of education does not have the legal authority to issue subpoenas unless it is conducting a hearing regarding a school law dispute. It further argues that the subpoenas violate the well-established right to anonymous speech and to privacy.

On Thursday, Dec. 5, the ACLU-NJ will appear before the Honorable Thomas R. Vena of the Essex County Superior Court to argue that while its request to quash the subpoena is pending, that all subpoenas issued by the school board seeking identifying information about its client be temporarily quashed and that the school board be ordered not to issue additional subpoenas about its client’s identity.

On Nov. 1, the Montclair Board of Education adopted a resolution authorizing an investigation and hearings into the security breach. The resolution called for an investigation into leaked exams and into other “incidents of conduct contrary to the board’s best interest.” One week later, it sent the subpoena to Google for information about “Assessmentgate,” who has posted critical comments about the district on the community website Montclair Patch and created Facebook and Twitter accounts using a Gmail address. These accounts were created before the ACLU-NJ’s client knew about leaked exams.

“The Board of Education and Superintendent have shown they will stop at nothing to silence dissent by any means necessary, including ignoring citizens’ rights to free speech,” said “Assessmentgate,” the ACLU-NJ client. “If we can’t trust them to operate honestly and to abide by the law, how can we trust them to do what’s best for our district and our children’s education?”

The Montclair Board of Education also issued a subpoena to the editor-in-chief of BaristaKids, seeking the identities, phone numbers and email addresses of “Assessmentgate” and three other posters who have been critical of the district.

“The Board of Education has clearly overstepped its boundaries,” said Udi Ofer, executive director of the ACLU-NJ. “The board cannot legally issue subpoenas as part of a fishing expedition and target people who have simply been critical of its policies. The use of a pseudonym to engage in political debate is part of a rich historical tradition, and the Constitution protects the rights of our client in this case.”

The hearing seeking a temporary order is scheduled to be held on Thursday, Dec. 5, at 9:00 a.m. in courtroom 404 of the Essex County Historic Courthouse. The case is captioned Assessmentgate v. Montclair Board of Education, Docket No. L-9391-13.