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.
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
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.