[guest post by Dana]
In a troubling move, the Department of Justice has issued a Grand Jury subpoena to Reason.com to identify anonymous commenters who made some very ugly remarks about a judge connected to the Silk Road case.
Ken White at Popehat provides a detailed legal analysis and look at the impact of this move by the Dept. of Justice:
The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.
Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?
Because these twerps mouthed off about a judge.
Here are the comments in question left at Nick Gillespie’s post about the sentencing of Silk Road founder Ross Ulbricht:
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.
So, do these qualify as “true threats”? White says no:
True threat analysis always examines context. Here, the context strongly weighs in favor of hyperbole. The comments are on the Internet, a wretched hive of scum, villainy, and gaseous smack talk. The are on a political blog, about a judicial-political story; such stories are widely known to draw such bluster. They are specifically at Reason.com, a site with excellent content but cursed with a group of commenters who think such trash talk is amusing.
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.
Therefore, even the one that is closest to a threat — “It’s judges like these that will be taken out back and shot” isn’t a true threat. It lacks any of the factors that have led other courts to find that ill-wishes can be threats.
While the comments are not “true threats”, it is nonetheless concerning that federal prosecutors are willing to use their authority to investigate a few outraged anonymous commenters who foolishly made nasty comments about a judge. If it can happen to them, it can happen to any commenter who momentarily loses their sense of discretion and self-restraint.
As Virginia Postrel, founder of Reason, notes:
The real threats aren’t coming from the likes of Agammamon and croaker. They’re coming from civil servants in suits. Subpoenaing Reason’s website records, wasting its staff’s time and forcing it to pay legal fees in hopes of imposing even larger legal costs (and possibly even a plea bargain or two on the average Joes who dared to voice their dissident views in angry tones) sends an intimidating message: It’s dangerous not just to create something like Silk Road. It’s dangerous to defend it, and even more dangerous to attack those who would punish its creator. You may think you have free speech, but we’ll find a way to make you pay.
Now go to Popehat and read the whole thing.
UPDATE BY PATTERICO: While I agree with Dana and Ken White that this is overreaching and troubling, I also think many of the comments at Reason are reprehensible. A comment like “Its judges like these that should be taken out back and shot” may not be illegal, but I have no desire to associate with people who make comments like that. I have already deleted one comment in this thread to that effect (by happyfeet), and I ask JD to keep an eye out for others and zap them when he sees them. Repeat offenders will be banned, and there’s no First Amendment violation in that.