On Monday, US Chief Magistrate Judge Joseph Spero upheld a subpoena that aimed to unmask the anonymous users in the gamer chat app Discord who were involved in planning the Unite the Right white supremacist rally in Charlottesville last year. It overrules a motion to quash the subpoena on the grounds that it would violate the defendant's’ First Amendment right to anonymous speech.
According to Spero’s decision, any identifying information related to the Discord users named in the subpoena is relevant to the case and can be released. Access to this information, however, will be restricted to the parties involved in the litigation and won’t be released to the general public.
One person was murdered and several others injured after a white supremacist drove his car into protestors at the Unite the Right rally last August. Following the event, nine victims who were “physically and emotionally injured” filed a civil lawsuit against the event’s organizers on the grounds that the rally was held “for the purpose of terrorizing residents of Charlottesville and engaging in violence,” according to court documents reviewed by Motherboard.
Shortly after the rally, the independent media collective Unicorn Riot released hundreds of thousands of messages scraped from the Discord chat rooms used to organize the rally as a searchable database. Included among these messages are numerous calls for violence, including exhortations to “crack skulls” and to use stronger PVC pipes for “thicker thumping.”
Following the Unicorn Riot leak, the attorneys representing the victims filed a subpoena to Discord requesting access to the messages and account information of over 49 Discord users believed to be involved with plotting the Unite the Right rally. The justification for the subpoena was that access to these messages would be instrumental to proving that the organizers of the Unite the Right rally “conspired to commit acts of violence, intimidation, and harassment.”
"We need robust First Amendment protections for all online speakers, even those whose views we loathe and recognize as both wrong and dangerous.”
In May, one of the anonymous users in the chat, who went by the handle ‘kristall.night’ filed a motion to quash the subpoena on the grounds that unmasking herself and others in the Discord chat would “result in serious harm to [her] personal and professional [life],” according to the court documents. (Under certain circumstances plaintiffs and defendants can remain anonymous during litigation and are referred to in court documents as John Doe or Jane Doe.)
The motion to quash the subpoena argued that unmasking the Discord users would violate their First Amendment right to anonymous speech—which the Sixth Circuit Court of Appeals acknowledged in a case last year—and would also violate their freedom to associate with an unpopular political group. Kristall.night characterized the subpoena as a “fishing expedition with the ultimate goal of destroying the lives of people Plaintiffs do not like, even though these people have done nothing to harm Plaintiffs,” according to the court documents.
‘Kristall.night’ is a reference to kristallnacht, a 24-hour period in 1938 when Nazi paramilitary members destroyed Jewish property throughout Germany, arrested tens of thousands of Jews, and murdered at least 91 people. Among Kristall.night’s hundreds of messages archived in the Unicorn Riot database are a photo of two small children draped in a Nazi flag and apparently reading a Nazi book coupled with the text, “Here, have a W H O L E S O M E picture to calm everyone down”; a warning against using bullwhips as a weapon because you “can’t aim them precisely enough in a crowd”; a photo of a white family all wearing sweaters emblazoned with a racist caricature; commentary about how “without complicit whites, Jews wouldn’t be a problem”; as well as references to “faggots,” various white supremacist imagery, and memes depicting Adolf Hitler quotes.
Spero’s decision on Kristall.night’s motion to quash the subpoena keeps it mostly intact, insofar as the anonymous users can be identified to the litigants, but not the public at large. The Stored Communications Act prohibits electronic communication services (Discord, in this case) from publishing the contents of its users’ electronic messages while they are still stored in the company’s database. For this reason, Spero argued, the content of Kristall.night’s messages cannot be disclosed in the subpoena.
However, Spero upheld the rest of the subpoena on the grounds that any identifying information would be classified as “high confidential.” This is a legal term that means information will only be disclosed to the attorneys, expert witnesses, stenographers, and videographers, and anyone who received the information originally. This will protect Kristall.night’s identity from being released publicly and thus protect them from physical harm.
“The court’s decision to limit disclosure to these select few groups strikes me as a recognition of the potential First Amendment harms that would result if the information was publicly disclosed,” Aaron Mackey, a staff member at the Electronic Frontier Foundation who specializes in privacy and speech issues, told me in an email. “The court recognized that even at this highly charged and emotional moment, the First Amendment limits when private litigants can unmask anonymous online speakers.”
Yet Randazza, Kristall.night’s attorney, told the Washington Post that he doesn’t trust that Kristall.night’s information will remain confidential and said he is still considering an appeal of Spero’s decision.
“I can’t believe people believe this, but they get to do that,” Randazza told the Post in regards to Kristall.night’s political beliefs. “That’s what the [expletive] enlightenment is about. That’s what the [expletive] First Amendment is about. That’s what this [expletive] country is about. But people don’t get to do that anymore. You have to be hounded out of your apartment, out of your job, out of whatever it is you have, if you have the audacity to have an unpopular political belief.”
For Mackey, the decision raises a larger question about whether we as a society are comfortable with publicly identifying individuals who exist “at the margins of our social and political discourse.”
“The same tools used to disclose [Kristall.night’s] identity can be and are regularly used against historically powerless individuals and groups to intimidate, harass, and silence them,” Mackey told me. “I want the First Amendment to protect those sympathetic groups and voices from the very oppression that is at issue in the underlying case and the violence in Charlottesville. But to do so, we need robust First Amendment protections for all online speakers, even those whose views we loathe and recognize as both wrong and dangerous.”