The Justice Department has issued a subpoena against Reason demanding information on the identities of anonymous commentaters. BuzzFeed reports:
The Justice Department has issued a federal grand jury subpoena to Reason, a prominent libertarian publication, to unmask the identity of commenters who made alleged threats against a federal judge.
In the June 2 subpoena, first published by the blog Popehat on Monday, the Justice Department orders Reason to provide a federal grand jury with “any and all identifying information” on the identities of commenters who mused about shooting federal judges and/or feeding them through a wood chipper.
A May 31 article on Reason’s blog about the prosecution of Silk Road founder Ross “Dread Pirate Roberts” Ulbricht spurred the anonymous commenters’ vitriol. Ulbricht pleaded for leniency, but a federal judge sentenced Ulbricht to life in prison without parole for setting up the illicit online drug market.
“It’s judges like these that should be taken out back and shot,” one Reason commenter wrote…
The subpoena raises several First Amendment issues, such as whether the comments rise to the level of a “true threat” or are protected free speech. The Supreme Court recently ruled that “true threats” must be made with some knowledge or intent that the threat will be taken seriously.
Kimberly Chow, an attorney for the Reporters Committee for Freedom of the Press, said the comments on Reason clearly fall within the internet’s regular, if outrageous and often vile, discourse.
“In terms of the comments, everybody knows the internet is a forum where exaggeration and hyperbole take place,” Chow told BuzzFeed News. “These comments are in that category. Nobody believes that these people are going to go and put this judge in a wood chipper.”
Free speech advocates also worry that such subpoenas burden websites with significant legal costs and could have a chilling effect on speech. The subpoena also has specific implications for anonymous speech.
Kyu Youm, a professor at the University of Oregon School of Journalism and First Amendment scholar, called the Justice Department subpoena “a misplacement of priorities” in an interview with BuzzFeed News.
“Generally speaking, anonymity is still a part of freedom of expression, and just because the government wants to unmask the commenters does not mean it has a strong case,” Youm said. “At least, if there is doubt as to the validity of the subpoena, anonymity should be given the benefit of the doubt.”
Popehat further criticized the subpoena:
The subpoena raises a few questions:
First, are Those Comments True Threats?
Second, if they are not true threats on their face, does the U.S. Attorney’s Office still have the power to use a grand jury subpoena to identify the commenters?
Third, even if the U.S. Attorney’s Office has the power, should it have that power?
Are the Reason.com Comments “True Threats?” No. NO. AND HELL NO!
“True Threats” are those threats that are outside the protection of the First Amendment; they are not mere political hyperbole or bluster. For instance, in 1967, when Mr. Watts said that if he were drafted the first man he’d want in his rifle sights was President Lyndon B. Johnson, that wasn’t a true threat: it was conditional political hyperbole. In other words, it was mere angry bluster of the sort no reasonable person would take to be a serious threat.3
What of these comments on Reason.com, then? I submit that they are very clearly not true threats — that this is not even a close call.
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.4 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.
Virginia Postrel, a former editor of Reason, in an op-ed at Bloomberg News stressed the civil liberties aspects of the case:
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.
Yes, this is about civil liberties and our First Amendment rights, not whether you agree with Ulbricht or how you feel about the specific comments. I, along with other bloggers who have commented on the case, would have probably deleted some of the more vile comments which have been cited from our blogs. However that is the decision of the owner of the blog, not something the government should be involved in.