In a case that is being closely followed by social media observers, privacy advocates and supporters of the Occupy Wall Street movement, defendant Malcolm Harris changed his mind about pleading guilty and will instead faced trial starting December 12th, 2012. The 23-year old activist contemplated putting his legal ordeal behind him by entering a guilty plea in a disorderly conduct case dating back to October 2011.

Harris was arrested on the Brooklyn Bridge along with hundreds of other protesters at a time when the Occupy Wall Street movement was heating up. After the New York Police Department (NYPD) arrested Harris, prosecutors at the Manhattan District Attorney served the microblogging and social messaging Twitter with a subpoena to produce tweets in Harris’ account, both before and after his arrest.

Prosecutors wanted to review the tweets in order to respond to claims made by Harris about the conduct of the NYPD. According to Harris, police officers used crowd control maneuvers to corral the protesters and force them to move away from the walkway of the Brooklyn Bridge into the street, where they could be arrested for obstruction of vehicular traffic.

Harris’ attorney, Martin Stolar, filed a motion to prevent the Manhattan District Attorney from introducing the tweets in court. This is the second motion filed by Harris on this issue. The first motion sought to eliminate the subpoena, but the judge denied it. This decision raised alarms among privacy advocates since it established that Twitter had sole ownership rights of user-generated content.

Twitter initially raised objections to the subpoena, but relented when faced with a substantial fine. This marked the first time that a judge allowed prosecutors to get their hands on a defendant’s tweets.

Potential Supreme Court Challenge

On statements made to the press, Harris’ attorney explained that there is a possibility that the tweets obtained by the prosecution will not help his client defense against the disorderly conduct charge, which is not a criminal offense. He no longer faces jail time, and the Manhattan District Attorney office is recommending 10 days of community service in exchange for a guilty plea.

Harris strongly considered the proposal and was preparing to enter a guilty plea on December 6th. When the judge refused to rule on the motion to prevent his tweets from being admitted in court, Harris changed his mind. In the meantime, his attorney is preparing a strategy that will allow him to take the case to appellate court and possibly the Supreme Court. There are about six pages of tweets, and some could pose a problem for Harris, but his attorney that greater privacy issues are at stake.