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

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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