A magistrate judge dismissed multiple claims brought by supporters of journalist Barrett Brown against a former assistant United States attorney, former special FBI agent, and the U.S. government. But the judge did not entirely dismiss the lawsuit and left the door open for one donor to amend his claim arguing an FBI subpoena chilled his First Amendment activity.

Brown was released from prison on November 29, 2016, after serving a prison sentence which stemmed from pleading guilty to threatening an FBI agent, obstructing justice, and being an accessory to a cyber attack. He spent two years in pretrial incarceration prior to his sentence in 2014.

Cadina Heath was the assistant U.S. Attorney in the Northern District of Texas. Robert Smith was a special FBI agent in the Dallas office. They drafted and served WePay with a subpoena that directed WePay to produce records on the crowdfunding campaign to raise money for Brown’s legal defense. It exposed the identities of donors, their sensitive financial information, and the amounts of their donations, and allegedly targeted their political speech.

Kevin Gallagher, who launched the WePay donation page, and “Donor No.1” submitted a class action suit that alleged First Amendment rights, the Stored Communications Act, and privacy rights under the California Constitution were violated.

Magistrate Judge Maria-Elena James found [PDF] supporters plausibly allege the subpoena was issued “to obtain information for unlawful purposes.” She also determined Heath, Smith, and the government failed to put forward any “facially reasonable explanations” for requesting the identities of donors.

The defendants assert the subpoena was necessary to determine if Brown could afford the attorney he hired, especially since he was initially assigned a public defender. However, as James noted, Brown was never charged with “withholding funds from the public defender” and the main purpose of the WePay donation page was to hire private counsel. They did not need a subpoena to discover how much the campaign raised because the amounts were publicly available on the page.

“The subpoena sought the identity of donors, not just the amounts donated,” James added. “Rather, the individual defendants served the subpoena ‘because of’ the donors’ political messages: ‘Ms. Heath made her desire to suppress constitutionally-protected speech clear during the gag order hearing…when she argued that Mr. Brown should be gagged because he had written an article that was ‘critical of the government’ in a ‘tone’ that was ‘problematic.’”

Contrary to defendants, the court did not see allegations of retaliation for speech as baseless.

“The gravamen of the allegations is that Heath and Smith did not need to use the subpoena to ascertain whether Mr. Brown could afford a lawyer because that information was publicly available; and that this alleged motivation does not explain why Heath and Smith sought the identity of donors to the campaign and the content of donor messages rather than simply the total amount collected,” James stated.

“Donor No. 1” contended defendants maintain the information WePay was asked to produce, and it was used to “unlawfully surveil him and the other donors to the crowdfunding campaign. He thinks this was a part of a larger effort to identify and track Brown’s supporters, and it extended to another internet company, CloudFlare. The intent was to “chill protected expression.”

While the judge did not dismiss this argument, she argued “Donor No. 1” put forward no “facts showing any threat of real and immediate future harm” or facts that show he is “likely to be harmed again.” And without such facts, he cannot pursue a First Amendment claim.

The judge granted “Donor No. 1” the opportunity to amend his complaint so that such facts could be included, if they are known to him. But this is an exceptionally high bar to overcome, one which the government has similarly leaned on heavily to overcome lawsuits against mass surveillance by the National Security Agency (NSA) which claim retaliation.

As for the Stored Communications Act claim against the U.S. government, James concluded both Gallagher and “Donor No. 1” had standing to sue the government for allegedly violating this law.

She determined the claim plausibly alleged an “unlawful surveillance scheme” that had the “intended effect to chill First Amendment activity” and ’caused the donors actual damages in the form of a cognizable First Amendment injury—the veil of their anonymity was unlawfully pierced.'”

In fact, the judge also concluded Gallagher and “Donor No. 1” put forward “considerable detail” why the explanation for the WePay subpoena was “pretextual” and “designed to identify and surveil Mr. Brown’s supporters and chill their freedom of expression.”

It would not be the first time the government was caught chilling the rights of supporters of a legal defense campaign. The government stopped a prominent Chelsea Manning supporter named David House at the airport and interrogated him about his political activities and beliefs. His electronic devices were confiscated, and they contained identifying information on members and supporters who donated to the defense campaign for Manning.

The government settled with House in 2013 and agreed to destroy all the data copied from House’s devices as part of the settlement. They also turned over reports to House that showed Homeland Security agents were instructed to look out for him when he was traveling.