Metropolitan News-Enterprise


Tuesday, November 27, 2012


Page 1


LGBT Anarchist Group Denied Sanctions Against Church


By JACKIE FUCHS, Staff Writer


An activist group was not entitled to sanctions against a church that sought to identify group members by subpoenaing anonymous email account holders, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel found that the demands of the subpoena were narrowly focused and not unduly burdensome, and that as the district court made no finding of bad faith on the church’s part, sanctions were not warranted.

In November 2008, a subdivision of the group Bash Back!—which describes itself as an anarchist organization made up of gay, lesbian, transgendered, bisexual, and “queer” activists—disrupted a Sunday church service at Mount Hope Church in Lansing, Mich., which, according to the decision, had promoted anti-gay beliefs.

As one group of protestors clad in black clothes and pink bandanas lined up outside the church, another snuck into the service chanting phrases such as “It’s OK to be gay” and “Jesus was a homo,” while flinging pamphlets, glitter, and condoms into the air. Two women ran to the pulpit and kissed as other group members unfurled an eighteen-foot Bash Back! banner from the balcony.

Mount Hope brought an action in the Western District of Michigan seeking an injunction to prevent Bash Back! and its members from protesting at churches in the future. The suit named fourteen known Bash Back! members as well as several “John Doe” defendants.

During discovery, the church attempted to find out the names of other Bash Back! members who had taken part in disrupting the service. The named defendants refused, however, to identify any of the others who had been present.

Mount Hope thereafter sought and obtained a subpoena duces tecum seeking the names of seven anonymous e-mail account holders from a number of online service providers, including a Seattle-based one named Riseup.

When Riseup refused to comply with the subpoena the church filed a motion to compel discovery. In response, Riseup filed a motion to quash the subpoena, which District Court Judge Richard A. Jones granted, finding that the First Amendment favored protecting the account holders.

Afterward, Riseup filed a motion for attorneys’ fees and costs under Federal Rule of Civil Procedure 45(c)(1), alleging that it had suffered an undue burden in fighting the “baseless” subpoena. Judge Jones agreed and ordered the church to pay a total of $28,181.10 in sanctions, basing his decision on a variety of factors, none of which included bad faith. He even noted that the subpoena did not place a logistical burden on Riseup.

On appeal, the panel was faced with what it said was an issue of first impression for the Ninth Circuit, namely, whether the loss of a motion to compel based on unpersuasive legal arguments is enough to warrant Rule 45(c)(1) sanctions absent other aggravating factors.

The panel held that it was not. Writing for the court, Judge Ronald M. Gould noted that while bad faith is a sufficient ground for sanctions, it is not a necessary one if Rule 45(c)(1) is otherwise violated in good faith. In the instant case, however, there were no grounds for sanctions. He clarified:

“We do not suggest that Rule 45(c)(1) sanctions are inappropriate where a party subpoenas clearly protected information in bad faith. We merely hold that bad faith supporting Rule 45(c)(1) sanctions did not exist here, and that the demands of the subpoena were focused and not unduly burdensome in terms of required production of documents.”

Senior Judge Mary M. Schroeder and Jed S. Rakoff, a U.S. district judge for the Southern District of New York, sitting by designation, concurred in the opinion.

The case is Mount Hope Church v. Bash Back!; No.11-35632.


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