Goodbye First Amendment: Federal Government Subpoenaed for...Hyperbolic Commenters

Posted: Jun 23, 2015 6:15 PM

Have ever read an article that just infuriates you to the point where you feel compelled to express whatever was on your mind in the comments section? Well, that action might land you in legal trouble because federal authorities have issued a subpoena to, asking them for the identities of commenters on one of their posts.

Leon Wolf over at RedState provides some background on Reason's post:

By way of background, Reason has long been covering the trial, conviction, and sentencing of Silk Road website creator Ross Ulbricht. For those who are unfamiliar with this particular saga, Silk Road was a website which made it easier, inter alia, to purchase illegal drugs from other people on the Internet. Ulbricht was ultimately caught by the authorities, and convicted in a controversial trial overseen by Federal judge Katherine Forrest. The Reason post that started this insane episode covered the fact that, in spite of his admission of guilt and pleas for leniency in sentencing, Ulbricht was ultimately sentenced by Forrest to an astonishing life sentence in prison for the crime of creating a website.

That seems just a little bit corrupt. Ulbricht certainly deserves jail time, but a life sentence for creating a website? That's overreach.

This led to a series of comments on the Reason post that could be best described as... colorful:

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.

Consequently, Reason was hit with a subpoena from the U.S. Attorney's Office for the Southern District of New York, requesting information on the authors of the above comments (plus one other that was too explicit to post) and asked for Reason to not disclose the subpoena to anyone so the investigation could remain confidential. When Reason objected, Assistant U.S. Attorney Niketh Velamoor put a gag order on Reason on June 4.

Reason published the gag order:

Upon the application of the United States pursuant to 18 U.S.c. § 2705(b): 1. The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

All of that is ridiculous. No one's life was being threatened, as there were no true threats against Judge Forrest, screenshots could keep the comments on record, and how on Earth would Reason talking about the subpoena cause a delay in the legal process?

The gag order lasted for 15 days. Ken White at Popehat describes the chilling effect the subpoena and gag order had on the publication:

Once the subpoena arrived, and then quickly after the gag order, the team experienced what both Alissi and Gillespie described to me as alienation and loneliness. They were concerned about discussing the matter even in-house, they knew that they couldn't contact friends and colleagues outside Reason for guidance and support, so they stewed in it on their own. They couldn't find out if other people had experienced the same thing and how they had dealt with it.

As Velamoor repeated his allegations of a violation of the gag order, the impact was more and more chilling. They knew they hadn't done anything wrong, but also knew that didn't matter. "Being innocent doesn't mean you're safe," point out Alissi.

That last quote by Alissi... how are we a free society when a quote like that just rings true?

Now thankfully, the gag order was lifted, but the implications and precedent this sets is frightening for those of us who believe in free speech.

This all happened because of some commenters went over the top in their political hyperbole. I do not condone their comments, and many websites would not allow those kinds of comments to be posted on their site. But as White points out, they were not true threats:

The "threats" do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about "wood chippers" and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent.

So clearly, these are not the type of comments that deserve to have the authors' lives turned upside down over. The fact that there was a subpoena at all creates a slippery slope, as Wolf points out:

And it isn’t so farfetched to imagine that if prosecutors were sufficiently motivated, they could begin trolling the comments section of RedState, HotAir, DailyCaller, etc. etc. to find similarly hyperbolic statements about public officials in the Obama administration who have provoked the ire of the conservative commentariat. And then all of us would have to be in the position of deciding whether to face down an AUSA in order to protect the anonymity of a commenter we probably didn’t agree with anyway. Kudos to the editors of Reason for standing up for their principles here, which can’t have been an easy decision.

Nick Gillespie, who I have a lot of respect for, told Popehat that we should be encouraged by this incident, because it shows how hard it is for the government to abuse free speech without consequence.

I disagree. The fact that there was a subpoena–and a gag order–over hyperbole presents a disturbing incident in free speech law. Is it time to say so long to the First Amendment?  In Reason's case, it's arguably under attack.