un-Reason-able

At Popehat, Ken White reveals that my second favorite local prosecutor’s, the United States Attorney for the Southern District of New York, by way of AUSA Niketh Velamoor, has issued a grand jury subpoena to Reason.com. Its ostensible purpose is to obtain the identity, and bank or credit information, for a handful of commenters on a post by Nick Gillespie about the sentencing of Ross Ulbricht, Dread Pirate Roberts of Silk Road.

The government, ever generous in its information, listed the offending comments:

AgammamonI5.31.15 @ lO:47AMltt
Its judges like these that should be taken out back and shot.

AlanI5.31.15 @ 12:09PMltt
It’s judges like these that will be taken out back and shot.
FTFY.

croakerI6.1.15 @ 11:06AMltt
Why waste ammunition? Wood chippers get the message across clearly. Especially if you
feed them in feet first.

Cloudbusterl6.l.15 @ 2:40PMIIt
Why do it out back? Shoot them out front, on the steps of the courthouse.

Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.

AlanI5.31.15 @ 12:11PMIIt
There is.

Product PlacementI5.31.15 @ 1:22PMIIt
I’d prefer a hellish place on Earth be reserved for her as well.

croakerl6.l.15 @ 11:09AMIIt
Fuck that. I don’t want to oay for that cunt’s food, housing, and medical. Send her through the wood chipper.

As Ken notes, nothing more than the usual mindless nastiness that contributes nothing to the conversation, but an opportunity to vent. The comments offered none of the indicia that suggest there is anything to be taken seriously, no home address, no detailed scheme, just the ordinary raving of people who are full of bluster about something that pisses them off, and about which they neither can nor will conceivably do anything.

But the subpoena is for real, investigating a potential violation of 18 U.S.C. § 875, prohibiting interstate threats.  Are these “true threats,” and hence unprotected by the First Amendment and subject to prosecution?  Don’t be ridiculous. Every denizen of the internets hears bluster of this sort constantly, in as many permutations as there are keyboards sold.  To suggest this is to be taken seriously ranges from laughably absurd to monumentally clueless. So is the AUSA absurd or clueless?

That was a trick question, because it presumes that AUSA Niketh Velamoor, or whoever is giving him his marching orders, actually harbors any real suspicion that these “threats” are to be taken seriously.  The assistants in the Southern District are many things, but naïve and stupid they are not.

Yet, the law on what constitutes “true threats” remains in flux (thanks, Supremes), and courts have been very reluctant to second guess the efficacy of an investigation into threats, acknowledging the “right” to opine anonymously, but holding the right to be trumped by the “compelling interest” of the government to use its authority to investigate threats, no matter how nonsensical they may be.  So yeah, they know these aren’t “true threats,” but they can, and they will, unmask the commenters anyway. Because they can.

The only reason the government doesn’t roam the internet in search of revealing anonymous jerks who leave faux threatening comments is that they lack the resources and interest in doing so. The place is rife with them, but prosecutors have better things to do than check out every loony comment.  This time, however, the comments refer to a federal judge (the threatening of whom is itself a separate federal crime), but perhaps more importantly, the targets are comments at Reason.

Reason Hit & Run is a libertarian blog, that offers a great deal of content critical of the government.  By putting Reason comments in its crosshairs, the government does two things: first, it tests the fortitude of the people at Reason to challenge the subpoena, to defend its commenters’ identities and fight for their right to be anonymous.  If the government prevails, it means that Reason loses, and the shine of its sharp and witty criticism of the government will dull considerably.  A loser’s critique is mere sour grapes, nothing to be taken seriously. Take that, you libertarian fools.

Second, this subpoena will have a chilling effect on one of the foremost libertarian websites around.  Much as libertarians may be bold in mouth about the government, nobody wants FBI agents showing up at their job asking for a private room.  Even libertarians have to eat.

This could significantly chill expression of political thought, even if expressed in low-brow bluster by anonymous cowards. You don’t have to be libertarian to appreciate the importance of having varying political ideas presented for consideration. And if Reason becomes a conduit for government disclosure of “subversives,” even if under the guise of expansive threats, ideas will be tempered, thought will be affected.  Bold criticism, including the anger it provokes, could be silenced.

One might hope that the Part 1 judge in the Southern District of New York will lean ever so slightly over his bench, peer down at the government’s counsel table, the one closest to the bench, and ask, “are you kidding me” in response to a motion to quash.  One might hope that the judge will state, in a stentorian voice, that the sanctity of anonymous political expression, even when couched in terms that are quasi-threatening but so obviously without any of the accoutrements of a “true threat” as to make the government’s assertion that, “hey, you never know,” come off as idiotic as we know it to be, means that he will not command disclosure.

But it’s all too easy to see a judge shrug, take the path of least resistance and close his eyes to the harm this subpoena might do, and the flagrant absurdity of the government’s proffer of the need for disclosure to protect poor, scared Judge Katherine Forrest from any harm, no matter how far-fetched.

And lest it go unsaid, this is why we can’t trust the government to exercise discretion as to when to flex its muscles. It will do so when it wants to, no matter how unreasonable.

40 comments on “un-Reason-able

  1. Chris Simmons

    Would a challenge by Reason be anything more than for show? If Ken’s point about the GJ’s investigative power here is true, I can’t see them making the argument that this would be irrationally burdensome.

    1. SHG Post author

      The law isn’t that simplistic or clear. No, it would not be just for show. That doesn’t mean they would win, but that doesn’t mean they shouldn’t try.

      1. bmaz

        No, would be a perfectly valid, and appropriate, challenge. The 1st amendment right to anonymous speech certainly is well grounded going all the way back to the Federalist papers. I do have some fear of bad law being made in a case involving a federal judge in a case with the kind of overtones Ulbricht’s has. But that is easy for a bystander to say, if I am Reason, I am fighting this tooth and nail.

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  3. Tom

    I hope there is a special place in hell reserved for prosecutors who abuse their subpoena powers.

  4. Mark Draughn

    I’m surprised you think that the site being Reason may have contributed to the government’s decision. I’ve been libertarian(-ish) for many years, and usually nobody pays any attention to what we have to say. I have mixed feelings about this.

    1. SHG Post author

      Your mixed feelings of surprise are deeply meaningful. I will bookmark your comment for future reference.

      1. Noxx

        Be nice to the guy, he’s a reader at Reason, apparently they are all manufacturing bombs over there under the light of a single naked bulb in the garage, whilst muttering about the free market and drinking wildly expensive coffee.

        Wouldn’t want him to *snap*

    2. Christopher Williams

      Being that libertarian sensibilities are on the rise (drug law liberalization, mandatory minimum reforms, etc), and Reason is leading the charge in many ways through various efforts, I’m not surprised at all that the DOJ wouldn’t take notice, even if it’s only A) to pseudo-censor the voices of both the writers and the commentariat, or B) as a means to be able to point out that it’s a reactionary publication that fosters extremism. Either would be a blow for libertarianism in current-day politics which can only be good for the status quo, especially considering that there’s a libertarianish presidential candidate making waves for the establishment.

      1. SHG Post author

        I think you’re right. While I don’t know that people recognize their libertarian tendencies, they have certainly spread far enough to be taken seriously.

  5. John Barleycorn

    Just in case this post is firing repressed synapses, you will not be permitted to use any hyperbole, no matter how tempting, when you finally submit to the will of the universe and compose the mother of all grand jury posts.

  6. Motorcycle Enthusiast

    In light of the Reason.com situation, one could reasonably wonder whether the author of that particular exercise in venting has, perhaps instead, inadvertently shot himself in the foot, or worse, having managed to shoot the nose off his face despite his face.

    If so, the government’s proverbial woodshed will soon overrunneth with keyboard commandos from all across the Internets. And the industrial-sized wood chipper stored inside that shed must be spec’d out to massive proportions in order to accommodate them all — feet first, of course.

  7. JD

    Not that I disagree with your take on this at all but perhaps another possible consequence might be something as simple as commenters taking a moment longer to articulate their political thoughts in a manner a bit more refined than suggesting feeding people into wood chippers feet first.

    1. SHG Post author

      You are so right! I keep telling people that commenters really need to do a better job of it, but nobody listens to me.

  8. KP

    I don’t see any threats in those comments, surely a threat needs some sort of verb. Such as “I’m going to…”

    Those aren’t threats at all, they’re a wish list! Not a plan to action by the commentators but a desire that somehow these things will happen to the person of interest.

    1. SHG Post author

      Nah, not even that. They don’t wish anyone dead, no less have any intention to do something harmful. It’s just the noise of frustration. Stupid, meaningless noise.

      1. srp

        Comments of this kind have a distinct and important meaning: “I am a part of the community that is outraged by this event, and I wonder if you are equally committed to our community (so see if you can top this expression of outrage).”

        Analysts who discount the social function of venting in blog comment threads probably think that prayers aren’t really important to churches because there’s no evidence of their efficacy.

        1. SHG Post author

          Well said. Venting, catharsis, plays a valuable role in discourse. And that’s all it is, no matter how one tries to twist it to give it a more nefarious purpose.

  9. Peter Gerdes

    Which seems more likely to you?

    The AUSA is acting out of some weirdly selfless motivation to protect the government (or his favored views) from libertarian criticism but yet wasn’t foresighted enough to worry that this kind of move might bring reason.com greater publicity and rally people to the cause?

    Or, the AUSA knew the judge (located in New York) and either wanted to suck up or was simply sympathetic to the judge’s situation as a result of personal contact? Or perhaps it pissed off his boss or someone else he knew and he could gain brownie points.

    I’m inclined to suspect more trivial and personal motives than grand attempts to suppress kinds of criticism.

    1. SHG Post author

      For reason that only you can answer, you’ve picked two options that you, in your imagination, think possible. First, it’s mental masturbation to impute motive to others without sufficient facts, which is a game you seem to play regularly. There are a spectrum of possible motives, and we’re in no position to guess why in the absence of sufficient data. I’m not inclined to waste time on pointless speculation.

      You would do well to stop trying to fit law into your non-lawyer paradigm. It serves no purpose other than to reveal the limitations of your understanding.

      1. Ted Levy

        How does PG’s comment differ much from what Ken White said: “Instead, they will use their discretion to decide when to bring their vast power into play to pierce the anonymity of internet assholes (or for that matter, people who may have valid points on political matters but express them in the wrong fashion). That discretion is much more likely to be exercised where, as here, the person being trash-talked is a powerful federal judge in the district of that U.S. Attorney’s Office, a judge that the office must appear before every damned day. The power is more likely to be exercised on behalf of establishment political figures, not outsiders. The power is more likely to be exercised when it is consistent with the politics of the administration.”?

        1. SHG Post author

          I can’t tell you how much I enjoy questions like this. But since I’m in a really helpful mood, here goes. PG posed a binary choice as to the facile imputed motivations of people whose actual motivations can’t possibly be known from a universe of motivations that, in reality, covers a full spectrum rather than the two he elected to express.

          Ken, on the other hand, notes a relevant factor of significance entering into potentially calculated decision-making process that provides an incentive for the exercise of discretion to be influenced in favor of comments relating to a judge rather than comments relating to a nobody.

          So, in answer to your question of how it “differs much,” there is no similarity whatsoever. Hope this helps.

  10. Fubar

    Precious snowflake judge got a hurt feeling.
    Lady Justice is writhing and reeling.
    DOJ in a fury
    Took it to a grand jury.
    You’re all subjects now. Practice your kneeling!

  11. monitorsmost

    Aside from the poor decision making of the AUSA to investigate this in the first place, grand jury subpoenas are fascinating. The purpose of a grand jury is to establish whether there is probable cause sufficient to indict the accused with a crime. The Fourth Amendment says no warrant for search and seizure will issue except for probable cause. So, if the grand jury wants to subpoena information, then it would need to establish probable cause in order to determine if there is probable cause, right?

    Of course not, instead grand jury subpoena duces tecums can be issued if they are reasonable. Further, it is on the subpoenaed party to establish that the subpoena is unreasonable or seeks irrelevant information. But wait, there’s more. When the subpoena or charge implicates the first amendment, the subpoena in addition to being reasonable must meet some sort of watered-down compelling interest test where there has to be a direct link between the criminal conduct and the subpoenaed information. Branzburg v. Hayes, 408 U.S. 665 (1972). And now we know that there is some vague subjective intent to threaten requirement (hello Elonis, nice to see you so soon). Well, how is the government supposed to establish a subjective intent to threaten if they can’t identify the speaker and see if there is any circumstantial evidence to suggest that the posts were intended to threaten the judge? The only solution of course is to subpoena the information and see if croakerl6.l.15 owns a wood chipper or there is a Hertz equipment rental which is in close proximity to his home.

  12. DocMerlin

    “And lest it go unsaid, this is why we can’t trust the government to exercise discretion as to when to flex its muscles. It will do so when it wants to, no matter how unreasonable.”
    – this is why it is unreasonable to be a miniarchist.

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