Nickerson semifinal Comment

COERCIVE DISCOVERY AND THE FIRST AMENDMENT: TOWARDS A HEIGHTENED DISCOVERABILITY STANDARD *Amy Pomerantz Nickerson This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs. The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as when a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a show-ing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as when the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. Yet notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving compelled disclosures: the risk that coercive discovery techniques, such as subpoenas and ...