Malcolm Harris is one of hundreds of protesters charged with disorderly conduct after the Occupy Wall Street protest march across the Brooklyn Bridge in October 2011. In the course of this investigation, on January 26, 2012, the New York County District Attorney issued a subpoena to Twitter to appear as a witness in Harris's trial in the Criminal Court of the City of New York, presenting "any and all information" regarding Harris's account @destructuremal from September 15 to December 31, 2011. Twitter notified Harris of the subpoena on January 30, 2012.

Harris reponded to this subpoena by filing a motion to quash on February 6, 2012. In this motion, Harris argued that the subpoena was overbroad and failed to comply with federal and state procedural requirements for electronic information requests.

On April 20, 2012, Manhattan Criminal Court Judge Matthew Sciarrino Jr. denied Harris's motion. Judge Sciarrino held that Harris lacked a proprietary interest in his tweets, so as in bank record cases where an individual lacks standing to challenge a subpoena issued against the third-party bank, Harris lacked standing to quash a subpoena issued to a third-party online social networking service seeking to obtain his postings. In addition, Judge Sciarrino found that were "reasonable grounds to believe the information sought was relevant and material to this investigation" under the Stored Communications Act.

On May 7, 2012, Twitter filed its own motion to quash Judge Sciarrino's order and the subpoena. In this motion, Twitter argued that the order would violate Twitter's terms of service provisions, which state that users retain rights to any content posted on the site, thereby holding a proprietary interest in their content. In addition, citing the Supreme Court's 2012 decision in United States v. Jones, Twitter argued that enforcing the subpoena would violate the Fourth Amendment, which only requires service providers to disclose user communications when presented with a valid search warrant. 

Twitter's motion to quash was denied by Judge Sciarrino on June 30, 2012. In addition to reasserting holdings from his April 20th order, Judge Sciarrino's held that there is no expectation of privacy when participating in a social media forum like Twitter, so no Fourth Amendment privacy interest would be implicated by the subpoena. Twitter intends to appeal this decision, having filed a notice of appeal on July 17, 2012.

Update:

On August 20, 2012, Harris filed a petition and memorandum under Article 78 of the CPLR to order Judge Sciarrino to reverse the order to reveal the information stored by Twitter. According to the case docket, Harris also seeks a temporary restraining order preventing the disclosure of the information, with a hearing date of September 21, 2012.

According to a subsequent pleading by Twitter, on August 20, 2012, the court asked Twitter to show cause as to why the court should not impose civil and criminal sanctions for contempt of court, in light of Twitter's lack of disclosure of the information at issue. That order had a response deadline of September 5, but on August 23 Twitter moved for a stay of all Criminal Court proceedings pending resolution of their appeal. The Appellate Term granted a temporary stay, but then vacated that stay in an order on September 7, 2012.

Meanwhile, on August 27, 2012, Twitter filed their appellate brief before the Appellate Term of the Supreme Court for New York County. The ACLU, NYCLU, EFF, and Public Citizen filed an amicus brief in support of Twitter.

On September 11, 2012, Twitter filed a memorandum in opposition to the order to show cause before the Criminal Court of the City of New York. Twitter argued that being forced to reveal the information before the appeal of the order would render the issue moot, and thus would prevent proper adjudication of the validity of the order.

According to Bloomberg, on a hearing on September 11, 2012, Judge Sciarrino rejected Twitter's arguments and ordered Twitter to comply or face substantial monetary fines.

According to the Washington Post and Village Voice, Twitter and Judge Sciarrino reached an agreement whereby Twitter turned over the contents requested on September 14, 2012 in a sealed envelope, and the Judge agreed not to open the contents until the hearing on Harris's Article 78 petition before the Appellate Term of the Supreme Court for New York County on September 21, 2012.

On September 27, 2012,  the Supreme Court for New York County's Appellate Term issued an order denying Harris's application to stay enforcement in his Article 78 proceeding. According to the New York Times, the subpoena was subsequently enforced, and Harris pleaded guilty to the charges.

According to a police report, on December 8, 2011, Meredith Nilan, the 24-year-old daughter of the Chief of Probation at Berkshire Superior Court, was involved in a car accident. While driving home from a social gathering, Nilan allegedly hit a running pedestrian, Peter Moore. According to the police report, she claimed she stopped and looked around, but then left the scene of the accident. According to The Berkshire Eagle and the police report, Moore suffered serious injuries.

After further investigation by the Pittsfield Police Department, Nilan was charged with leaving the scene of a personal injury accident and negligent operation of a motor vehicle to endanger. Later, in a closed show cause hearing on January 12, 2012, Assistant Clerk-Magistrate Nathan A. Byrnes found insufficient evidence for the case to go to trial. 

Around this time, Valenti started blogging about the developments of the case on his blog PlanetValenti.com. Valenti's blog suggested that Nilan might be receiving favorable treatment because of her father's position. He also questioned Nilan's version of events as reflected in the police report about the scene of the accident. 

On February 13, 2012, Springfield District Court Judge William P. Hadley overturned the Clerk-Magistrate's determination, and held there was probable cause to charge Nilan with leaving the scene of an accident and negligent operation of a motor vehicle.  She was later arraigned and charged; on June 6, 2012, prosecutors dismissed the charge of leaving the scene of an accident, and continued the misdemeanor negligent operation charge for six months Throughout these proceedings, Valenti continued to blog about the case. 

On June 22, 2012, Meredith Nilan filed a complaint for a civil harassment prevention order and supporting affidavit against Valenti in the Central Berkshire (Pittsfield) District Court. Nilan claimed that Valenti's blog posts were "lies and innuendo" and a "regular and malicious attack" on her reputation. She asserted that because of Valenti's "sensational interpretations" and reader's "anonymous rants," she feared "vigilante justice," and that "Mr. Valenti's continued vitriol and his repeated inclination to print lies and sensationalize every aspect of my case has made me fear for my personal safety."

A few days later on June 27, 2012, after an ex parte hearing, District Court Judge Bethzaida Sanabria-Vega issued a harassment prevention order directing Valenti "to remove any and all information referring to the Plaintiff [Ms. Nilan] from any and all websites, blogs, etc." Also included was an order to stay 100 yards from the plaintiff and to stay away from the plaintiff's work and residence. 

On his blog, Valenti wrote that he complied with the order on June 28, 2012, after recivint the order the night before.

Valenti filed a responsive affidavit on July 5, 2012, in which he detailed how he became involved in the Nilan story and responded to Nilan's claims. In his affidavit, he asserted that he had "never met her, talked with her, been near her, contacted or attempted to contact her, or spoken to Meredith Nilan, let alone 'harass'[ed] her." Valenti claimed that he reported facts "honestly, fairly, diligently, and justly," and that while he invited readers to share their views, he did not enourage outrage.

On July 9, 2012, the court held a hearing on the prevention order. According to a news report on the hearing, Valenti read his affidavit aloud, and Nilan read a statement.

Valenti's lawyer, Rinaldo Del Gallo, III, also filed a brief in his defense. In the brief, Valenti argued that he did not "harass" Nilan, as defined in the statute, because he had never met her or had any contact with her.  Valenti also argued that the civil harassment statute, Mass. Gen. Laws c. 258E, does not authorize a court to proscribe or censure speech on the Internet, and that the statute would be unconstitutionally overbroad if applied to the blog. Citing O'Brien v. Borowski, 461 Mass. 415 (2012), in which the Supreme Judicial Court interpreted c. 258E to avoid overbreadth by limiting its reach to "fighting words" and "true threats," the brief further asserted that there was no "face-to-face" confrontation likely to provoke violence (as required by the "fighting words" doctrine) or "intent to commit an unlawful act" against Nilan (as required to prove a "true threat"). Rather, Valenti claimed that his blog posts were true speech on a matter of public concern, and that the the judge's previous order was an unconstitutional prior restraint under the First Amendment and Massachusetts Consitution. 

Nilan did not file a response, according to the Central Berkshire District Court clerk's office. 

Bill Newman, director of Western Massachusetts ACLU, submitted an amicus brief in the case, arguing that the order was an impermissible prior restraint and "sweeping censorship." The amicus argued that the order to remove previously published information is even worse than a typical prior restraint because "it does not merely 'freeze' the speaker; it requires him to bowdlerize prior speech." The amicus also argued that Nilan's affidavit did not allege "three acts of either 'fighting words' or 'true threat' by Valenti or his web site," as required by the statute. 

At the July 9, 2012 hearing, Judge Mark D. Mason overruled and vacated the harassment prevention order.