Houston mayor, city attorney: On second thought, maybe those subpoenas were a wee bit broad

posted at 8:41 am on October 16, 2014 by Ed Morrissey

Quelle surprise. After news of their subpoenas for sermons given by religious leaders went viral yesterday, Houston’s mayor and city attorney backpedaled away from its “wording,” although the city attorney initially attempted to defend the demand. Later, he shifted the blame to outside legal representation:

Amid outrage from religious groups, Mayor Annise Parker and City Attorney David Feldman on Wednesday appeared to back off a subpoena request for the sermons of certain ministers opposed to the city’s equal rights ordinance, with Parker calling it overly broad.

The subpoenas, handed down to five pastors and religious leaders last month, came to light this week when attorneys for the group of pastors filed a motion to quash the request. Though Feldman stood behind the subpoena in an interview  Tuesday, he and Parker  said during the Mayor’s weekly press conference Wednesday that the wording was problematic.

The wording was the issue? Not the fact that the subpoena demanded sermons that had nothing directly to do with the petition process, such as their thoughts on “gender identity” and homosexuality? That’s their new line, and they’re sticking to it:

Feldman is monitoring the case, he said, but had not seen the subpoena written by outside counsel working pro-bono for the city until this week. Parker said she also did not know about the request until this week.

“There’s no question the wording was overly broad,” she said. “But I also think there was some misinterpretation on the other side.”

Parker wants to remind everyone of who the victim in this episode really is:

“Let me just say that one word in a very long legal document which I know nothing about and would never have read and I’m vilified coast to coast,” Parker said.

Bear in mind that the subpoenas specified that the ministers would have to turn over any sermon that mentioned Parker in them, and it puts this victimization claim in its proper perspective. It’s a form of lèse majeste by insinuation, making it plain that any criticism of the mayor might result in legal action. In other words, nice pulpit ya got there … hope nuttin’ happens to it.

Eugene Volokh notes correctly that sermons can in fact be subpoenaed, but the demand has to be narrowly tailored to the state or court interest involved, which clearly was not the case in Houston:

Say, for instance, that someone sues, claiming that a minister slandered him in a sermon, for instance urging people not to patronize his business because he was supposedly guilty of a crime (a falsehood, it turns out). If the allegations were factual claims, not theological judgments, and especially if the plaintiff wasn’t a member of the congregation, that may well be slander. (It might be slander even if the target is a member of the congregation, but there’s some lower court disagreement on that.) It seems to me that the plaintiff may subpoena the text of the sermon, or, better yet, a recording that the minister made of the sermon, as evidence of what the minister said, or of what he knew at the time he said it. …

But all this presupposes that the information in the subpoenaed sermons really is substantially relevant to a case or an investigation. I don’t quite see how “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession” would be relevant to the litigation about the validity of the referendum petitions.

At the very least, the subpoena seems vastly overbroad. And the fact that it seeks the contents of religious speeches does counsel in favor of making the subpoena as narrow as possible (which would likewise be the case if it sought the contents of political speeches). I’m not sure what sort of legally relevant information might be contained in the subpoenaed sermons. But the subpoena ought to be narrowed to that legally relevant information, not to all things about homosexuality, gender identity, the mayor, or even the petition or the ordinance.

This demand was intended to send a message to the dissenters. When that backfired, the city backpedaled and claimed they were the victims, but that’s nonsense — and it still reveals exactly what Houston has in mind with its equal-rights ordinance.


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Comments

Isn’t the proper response to such subpoenas “Gee, I’d love to help but my hard drive crashed.”?

whatcat on October 16, 2014 at 11:54 AM

funny thing is, at least in my church, all you have to do is go to our website and you can watch my Pastor’s sermons online.

I bet most of those churches do the same thing….

Dostacos on October 16, 2014 at 12:02 PM

Texas is a great place to live as long as you can stay out of Houston, Austin, Dallas and San Antonio. These are the places that the libtards, perverts, and other undesirables seem to congregate.

johnny reb on October 16, 2014 at 12:03 PM

The wording was the issue?

Yeah, the fat cow opened her mouth.

TulsAmerican on October 16, 2014 at 12:04 PM

Isn’t slander a high bar to clear if the subject is a public official?

Techster64 on October 16, 2014 at 12:06 PM

There is nothing in that legal definition/explanation which indicates individual attorneys or legal firms can just produce a subpoena in house and go to the post office and stick a stamp on it and put it in the box.
Dusty on October 16, 2014 at 10:24 AM

Most state rules of civil procedure allow attorneys to directly issue subpoenas to compell a witness’ attendance at a court hearing or deposition or to produce doucments and things. What happened here was the City sent a third party document request (Rule 34(C) of the Federal Rules of Procedure – most States have adapted the same rule of proceudre verbatium) Accompaning the third party request was what is called a Subpoena Duces Tecum which is the type of subpoena used when asking a person to produce documents or other tangible evidence. Thousands of such subpoenas are issued directly by attornies every single day as part of the rountine legal discovery process.

tommyboy on October 16, 2014 at 12:06 PM

When are we going to start taking the fight to these thugs? File suit already to have a Federal court throw out this law. Stop fighting the symptoms and attack the disease! The law is the problem. It is in violation of the First Amendment on not one, but two counts.

It’s exactly what they would do to us. Why are we forever on defense instead of attack?

JoseQuinones on October 16, 2014 at 12:07 PM

Yeah, the fat cow opened her mouth.

TulsAmerican on October 16, 2014 at 12:04 PM

Please don’t disparage “fat cows”. Ranchers love them.

johnny reb on October 16, 2014 at 12:12 PM

funny thing is, at least in my church, all you have to do is go to our website and you can watch my Pastor’s sermons online.

I bet most of those churches do the same thing….

Dostacos on October 16, 2014 at 12:02 PM

You are missing the point. The point was to harass and intimidate these pastors, not actually get any documents. We’ll see if that worked, no matter what the legal effects are downstream. It is hard to intimidate someone by going to their website.

Similar to the John Doe litigation in Wisconsin.

cptacek on October 16, 2014 at 12:55 PM

Stupid always over-reaches!

cajunpatriot on October 16, 2014 at 1:00 PM

Houston isn’t noted for it’s following the constitution, a while back the police got a whisper of drag racing on Westheimer, they went, no drag racing, they then proceeded to the dining places on Westheimer and started to arrest patrons. need less to say it did not end well for Houston.

RonK on October 16, 2014 at 1:44 PM

Impeach the fascist immediately.

John the Libertarian on October 16, 2014 at 2:03 PM

Feldman is monitoring the case, he said, but had not seen the subpoena written by outside counsel working pro-bono for the city until this week.

Having Totalitarian leftist activist lawyers working pro-bono is great until the inevitable embarrassment of their activism is made public.

RJL on October 16, 2014 at 3:22 PM

Having Totalitarian leftist activist lawyers working pro-bono is great until the inevitable embarrassment of their activism is made public.

RJL on October 16, 2014 at 3:22 PM

See, the libs really do know how to privatize stuff. They’ve got a volunteer Propaganda Ministry in the media, and now they have found a way to have a private harassment squad.

Axeman on October 16, 2014 at 3:50 PM

Please take note that these unlawfully broad subpoenas are not only intended to intimidate these pastors. They are intended to intimidate any and all opponents of the mayor’s gay jihad by example. Oppose them and they will drop the full weight of the city’s government on your head.

Did they take their cues from the Chicago Machine?

They are also intended to inflict real costs on participating in the political process for those opposed to the mayor. Compliance or response to subpoenas costs hard money. Even if the pastors are represented pro bono there remain significant expenses, and those are legal resources that could be devoted to other worthy causes.

Political thuggery at it’s most blatant. Makes you wonder what kind of bubble Mayor Parker and City Attorney Feldman live in that makes them think they could get away with this.

novaculus on October 16, 2014 at 4:19 PM

need less to say it did not end well for Houston.

RonK on October 16, 2014 at 1:44 PM

former chief of police C O Bradford called for that. He’s city councilman now, celebrated in the black community for arresting white kids on Westhiemer.

DanMan on October 16, 2014 at 6:22 PM