The War on Free Speech Accelerates: DoJ Subpoenas Reason.com Over Comment Section

Tyler Durden's picture

Submitted by Mike Krieger via Liberty Blitzkrieg blog,

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…

 

The D.C. court was right — the government won’t start issuing grand jury subpoenas every time someone writes “my husband left underwear on the bathroom floor again; I could just kill him.” But they won’t because they don’t have the time, inclination, or the resources.

 

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.

 

The D.C. court implies that we can trust federal prosecutors to use the grand jury power to pierce the anonymity of political firebrands even when their rhetoric is clearly protected by the First Amendment. That the government will investigate anonymous political rhetoric in even-handed fashion, whether that rhetoric comes from a magazine known to be friendly to the government and its establishment, or one that is, like Reason, prone to question both.

 

– From the excellent Popehat article: Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com

Readers of Liberty Blitzkrieg will be well aware of the gradual erosion by the state of the civil liberties of the American public. Such attacks are typically sufficiently under the radar, so that the average citizen has no idea what is happening until it’s too late. I have written about such calculated assaults on many occasions, but the holy grail target of the status quo is the First Amendment of the Constitution, which enshrines a right to the freedom of religion, speech, the press, and the right to peaceably assemble and petition the Government for a redress of grievances.

Many aspects of the First Amendment have been neutered in practice. For example, the right to assemble peacefully and effectively is often prevented in practice by the need to secure permits and other hindrances (see “free speech cages” and “protest zones”) . Meanwhile, on college campuses, where activism is historically most vibrant, many schools have embraced the Orwellian concept of “free speech zones” in order to prevent free speech. See:

Statists Declare War on Free Speech – College Students Banned from Handing Out Constitutions in Hawaii

California Student Banned from Handing Out Constitutions on Campus

In the first article, we learned that:

Administrators further clarified their level of respect for students’ free speech rights, making comments like, “This isn’t really the ’60s anymore,” and “people can’t really protest like that anymore,” according to the Foundation for Individual Rights in Education.

 

Administrators also maintained that university policy took precedent over Constitutional rights, according to the complaint.

Moving along, what about a free press? While the press in America is technically “free,” with six companies owning 90% of all media, the public, in practice, is essentially force-fed status quo propaganda 24/7.

This reality has resulted in an explosion in web-based alternative media, which at this moment in time, represents the greatest thorn in the side of the status quo. Naturally, the state can’t directly confront alternative media due to its extraordinary popularity, so it is seemingly starting to target its edges via the comment section.

Today’s must read piece examines this coming threat, and was published on a blog called Popehat, which sports the tagline: A Group Complaint about Law, Liberty, and Leisure. Here’s an excerpt from its About page:

Since a number of Popehat’s authors are attorneys, work in closely related fields, or have strong interests in politics, law is also a relative constant in the site’s focus.  Nevertheless, though it may seem to be at times, this is not a “law blog” as such.  Ultimately, the subject of Popehat is whatever the author of a given post wishes to discuss, aided by a good community of readers and commenters, whose thoughts and feedback are greatly appreciated.

 

Believe it or not, some of us actually have jobs. Our employers have nothing whatsoever to do with this site. The views, rants, and tequila hallucinations uttered here do not represent the views of our employers and/or secure psychiatric facilities. Also, nothing on this blog is meant to give you legal advice. Seriously. Apparently we have to tell some of you that.

Yesterday, I came across an article at Popehat with extremely significant implications. It regards federal grand jury subpoenas recently issued to libertarian publication Reason, by the U.S. Justice Department, for information about people who made anonymous comments on the site. Since author Ken White described the situation better than I ever could, here are excerpts from the article:

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.

 

Last week, a source provided me with a federal grand jury subpoena. The subpoena, issued by the U.S. Attorney’s Office for the Southern District of New York, is directed to Reason.com in Washington, D.C.. The subpoena commands Reason to provide the grand jury “any and all identifying information” Reason has about participants in what the subpoena calls a “chat.”

 

Several commenters on the post found the sentence unjust, and vented their feelings in a rough manner. The grand jury subpoena specifies their comments and demands that Reason.com produce any identifying information on them:

 

Screen Shot 2015-06-09 at 11.24.01 AM

Screen Shot 2015-06-09 at 11.24.09 AM

 

The grand jury subpoena specifies that it is seeking “evidence in regard to an alleged violation of: Title 18, United States Code, Section 875.” In other words, the U.S. Attorney’s Office is looking for evidence of violations of the federal law against interstate threats. That’s the same statute that was at issue in the Supreme Court’s decision in Elonis v. U.S. last week, in which the Court decided that to be a “true threat” in violation of Section 875, the speaker must have some level of knowledge or intent that the hearer will take the threat seriously.

This is interesting, because just last week I highlighted 20 comments on a Wall Street Journal article, some of which were far more violent and aggressive. See: Revolution is Coming” – The Top 20 Responses to Jon Hilsenrath’s Idiotic WSJ Article.

Did the WSJ also receive subpoenas? Now, back to Popehat:

Since the comments are about a judge, if they are “true threats” they could conceivably also violate Title 18, U.S.C., section 115(a), which prohibits threatening federal judges.

 

The subpoena raises a few questions:

 

First, are Those Comments True Threats?

 

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.

 

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.

 

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.

 

There are no factors like that in this case. Consider this purported “threat”: 

 

Screen Shot 2015-06-09 at 11.26.43 AM

 

Is it the position of the U.S. Attorney’s Office for the Southern District of New York that a reasonable reader would conclude that “Rhywun” is in league with the Dark Ones, able to bring into existence a hot place in the afterlife for an errant judge? Ridiculous. If that’s a threat, then so is “go to Hell.”

 

So: the government has used the grand jury to subpoena a news magazine for the identity of anonymous commenters who have engaged in political rhetoric that is clearly protected by the First Amendment.

 

Can they get away with this?

 

Regrettably, The Government Can Probably Abuse the Grand Jury Subpoena Power This Way

 

Reason.com — or the anonymous commenters — could file an action in federal court seeking to quash this subpoena. We know how that would likely come out, because someone recently did it. During the 2012 election cycle a juvenile but prolific Twitter personality named “Mr. X” tweeted “I want to fuck Michelle Bachman in the ass with a Vietnam era machete.” The government subpoenaed Twitter for Mr. X’s identifying information; Mr. X filed a motion to quash the subpoena. The United States District Court for the District of Columbia rejected the motion.

 

But here’s where Mr. X learned the difference between individual rights and government power. The court conceded that the tweet was almost certainly not an actionable true threat:

 

Yet the court found that the government had a “compelling interest” in investigating all threats, however ridiculous:

 

The court conceded that this could produce absurd results, but hand-waved that concern away:

 

The Court is aware that this conclusion may seem to produce absurd results. Under this line of reasoning, the government could presumably subpoena any Web site any time any anonymous user made any post containing a mere scintilla of violence. The government could require Twitter to divulge the identity of a teenager who tweets, “My parents are so mean! I want to toss them in a ditch.” Anonymity on the Internet would be sufficiently compromised to warrant this Court’s concern.11 But we are nowhere near that slippery slope. Here, an individual has made a statement that threatens an established candidate for the presidential nomination of one of our two major political parties, and the government has a strong public interest in investigating that threat, however outlandish.

Read that over and over again, until you realize how incredibly absurd and dangerous that court argument is.

Should The Government Exercise Power To Identify Anonymous People Over Clear Bluster?

 

The D.C. court was right — the government won’t start issuing grand jury subpoenas every time someone writes “my husband left underwear on the bathroom floor again; I could just kill him.” But they won’t because they don’t have the time, inclination, or the resources.

 

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.

 

The D.C. court implies that we can trust federal prosecutors to use the grand jury power to pierce the anonymity of political firebrands even when their rhetoric is clearly protected by the First Amendment. That the government will investigate anonymous political rhetoric in even-handed fashion, whether that rhetoric comes from a magazine known to be friendly to the government and its establishment, or one that is, like Reason, prone to question both.

 

A Note On The U.S. Attorney’s Office Reaction To My Inquiries About This Story

 

On Friday, June 5th, the day after a source sent me the subpoena, I decided to call Niketh Velamoor, the Assistant U.S. Attorney who issued the subpoena. My purpose was to tell him that I would not print the subpoena if he could convince me that he had specific evidence demonstrating that to do so would put a life in danger. Mr. Velamoor — who said he could not discuss grand jury investigations, which is the standard AUSA statement — said that it was unreasonable to expect the government to be able to prove such a threat before it identified the commenters. That answered my question on the point.

 

Mr. Velamoor was suspicious and defensive. At one point he told me that he “believed” that there was a gag order prohibiting this subpoena from being released by its recipients, and that whoever gave it to me must have violated that order, and that he would be “looking into it” and how I got it.

 

Such gag orders do exist. However, I note that two days earlier on June 2, 2015, Mr. Velamoor signed the cover letter on the subpoena, which contained the Department of Justice’s standard language about secrecy:

 

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the confidentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

 

In other words, two days before he told me that he believed there was a gag order on the subpoena, Mr. Velamoor told Reason.com that it was notrequired to keep the subpoena secret.

 

Perhaps Mr. Velamoor misspoke. Perhaps Mr. Velamoor misremembered. Perhaps Mr. Velamoor didn’t secure the gag order until after he issued the subpoena.

 

Or perhaps Mr. Velamoor, bless his heart, was lying in an attempt to intimidate me.

This falls into the very important category of know your rights.

In any case, Mr. Velamoor has provided me with no such order, despite a request.

 

Whatever the answer, consider this: Mr. Velamoor, and government attorneys like him, will be the ones deciding whether the federal government will use the grand jury to pierce the anonymity of your comments. No doubt in some cases they will exercise that power on genuinely frightening threats. But other times will be like this one, where the government subpoenaed the identity of people indulging in crass but obvious bluster.

 

They will target political speech.

 

Does that make you feel safer?

 

Why Does This Matter To You?

 

If, like most of us, you’re a lawyer with lawyer-friends and “a swarm of asshole lawbloggers” (Yes, I have such a swarm, and I’m KING BEE!) willing to stand at your back to defend your right to use silly hyperbole in criticizing government officials, it probably doesn’t matter at all.

 

But some of you aren’t. You may have opinions, even strong opinions, but you’re lower forms of life, maggots, pukes, nothing but grabasstic pieces of amphibian shit. You aren’t lawyers, ready and prepared to defend yourself from the Very Special Hell that is a federal investigation of statements like:

 

Screen Shot 2015-06-09 at 11.26.43 AM

 

Dumb creatures that you are, you might even write something in the heat of the moment, while commenting on a charged political issue on Facebook, or Twitter, or Reason, without phrasing it properly:

 

See how far that gets YOU, dumb brute, when you’re summoned by a wet-behind-the-ears mutton-headed Assistant United States Attorney to answer to the Grand Jury for the Southern District of New York after your Facebook comment to the effect that Eli Manning should defenestrated through a plate glass window because the Giants are a piece of shit team that will never win another Super Bowl as long as that piece of shit Eli Manning, who should be defenestrated through a plate glass window, is quarterback.

 

Or how much it will cost you to hire a lawyer to defend yourself against an obviously meritless investigation, for speaking your mind in a manner that no one, except a wet-behind-the-ears mutton-headed Assistant United States Attorney for the Southern District of New York, who should be defenestrated through a plate glass window for wasting taxpayer dollars on a frivolous investigation of mere internet braggadocio and hyperbole, would read as anything other than mere internet braggadocio and hyperbole about the wrong people. People like Eli Manning, or a federal judge who issued an incredibly harsh sentence in a very political case?

 

Of course, Reason and “Rhywun” may be under a gag order asserted on the “because I said so” non-existent authority of a wet-behind-the-ears mutton-headed Assistant United States Attorney, for whom a special place should be reserved in Hell, so don’t expect answers.

 

But ask whether that’s an internet, or for that matter a country, in which you wish to live.

First they came for the comment section, and I said nothing…

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.
Antifaschistische's picture

I had let my subscription to Reason lapse years ago....just because I procrastinate.

I'm renewing today.

Billy the Poet's picture

"to pierce the anonymity of internet assholes"

 

Hey, stop picking on my avatar!

Almost Solvent's picture

Perhaps they could also try to pierce the veil to rescue those who post suicide notes online, especially veterans.

El Vaquero's picture

Perhaps, instead of clamping down on speech that they don't like, they should sit back for some self reflection on why people might want to toss them into the wood chipper.  Dumb fucks. 

Johnbrown's picture

I'm thinking about making a facebook page called:

SPECIAL PLACES IN HELL FOR FEDERAL JUDGES

Then each day, I'll describe a place in hell... like quotes from Dante's inferno etc.

Anyone want to opine on the advisability/entertainment value of such a venture??

Johnbrown's picture

(7TH CIRCLE - for the violent)

People I saw within up to the eyebrows,
And the great Centaur said: Tyrants are these,
Who dealt in bloodshed and in pillaging.

Here they lament their pitiless mischiefs; here
Is Alexander, and fierce Dionysius
Who upon Sicily brought dolorous years....

Justice divine, upon this side, is goading
That Attila, who was a scourge on earth, 
And Pyrrhus, and Sextus; and for ever milks

The tears which with the boiling it unseals
In Rinier da Corneto and Rinier Pazzo,
Who made upon the highways so much war.

pods's picture

They will pretend that they have to go through the proper channels to obtain the IP addresses of the posters.

Which we clearly know can be had in the blink of an eye from our friends at the NSA.  

This the dance they have to do.  Have the answer, build the question.

pods

El Vaquero's picture

Which is why if a couple of FBI agents show up at your doorstep just wanting to "talk," record the encounter, tell them that they are tresspassing and to get off the property.

Gaius Frakkin' Baltar's picture

The problem here is that people vastly underestimate how evil the US government has become. Otherwise, they'd realize the time for idle threats is over.

El Vaquero's picture

The government doesn't get it, and it is perpetuating a cycle.  It thinks that it needs to maintain control, so it clamps down, which pisses people off, which causes the government to clamp down harder, which pisses people off more, etc...  Throw the cronyism into the mix and how badly the middle class has been shafted while the oligarchs have gotten theirs, and it is clear that pressure is going to keep building until it can no longer be contained.  The government today is as bad or worse than the redcoats were in the 1770s, and they refuse to understand that they themselves are the problem.

sleigher's picture

The more you tighten your grip, Tarkin, the more star systems will slip through your fingers. 

-Leia Organa

pods's picture

I can see this happening at big sporting events during the national anthem.  Big screen zooms in on the unpatriotic...............

"There's one in the spotlight that doesn't look right to me..........get him up against the wall."

pods

 

Tall Tom's picture

That one looks Jewish,

And that one's a Coon

Who let this riffraff into the room?

There's one smoking a joint

And another in spots!

If I had my way...

I'd HAVE ALL OF YOU SHOT.

 

Pink Floyd, The Wall

sleigher's picture

One of the greatest records of all time.  Thanks Mr. Waters for living through the hell you call art.

tdag's picture

VPN, motherfuckers, vpn. Just remember it's like a condom -- not perfect but definitely useful.

shouldvekilledthem's picture

The vpn provider can see your IP and the stuff you do.

 

TOR is far better. And most importantly, always use an open internet connection, using TAILS if you must really speak the "truth" and don't want to end up in the hands of TPTB.

greenskeeper carl's picture

Ya I saw this yesterday, I was wondering when ZH would pick this up. I've often thought it might be a good idea to start a new email address on tor and get a new user account that I only access with tor, but I kinda like my screen name, and I've had it a couple years now. (Well, I got put in time out a while ago, so I've only had this one a few months...)

It's interesting that they would embarrass themselves with this kind of thing. Obviously saying they want to put a judge through a wood chipper was pure hyperbole(but hilarious. I feel like that guy would be right at home here) and yet they are going after him anyway. They must sense that the plebs are getting a little fed up. There is only so much bullshit people will put up with before they decide they've had enough. They must be getting a little scared. As well they should be. While I am by no means threatening anyone(hear that, DOJ...) eventually enough people are going to decide they don't want to live under the thumbs of fascists like that judge anymore and it's not going to be pretty.

Citxmech's picture

Pretty soon we might be called to answer for our up/down votes. . . . 

Took Red Pill's picture

I'm sure all our comments and votes are stored somewhere to be held against us someday. Fuck 'em!

WOAR's picture

You didn't vote for Barack Obama?

That's vicious hate speech, you racist.

El Vaquero's picture

A big conflagration is coming, one way or the other.  It could be Civil War II or it could be WWIII.  Either way, know who you are, know what you stand for, and be on your own side.  Many of the worst atrocities happen because people pick a side and do what they are told.  Either outcome is not something that we want to experience, but I don't see a way around violent conflict.  Also, expect supply chains to break.

pods's picture

Man complains about police state, police state comes knocking on his door.

"You didn't have to prove my point so quickly."

pods

greenskeeper carl's picture

Good one, just one problem, the police state doesn't 'knock' on your door, they smash it in.

El Vaquero's picture

Oh, the FBI will do that too. They threatened to do it if he didn't agree to an interview with them, which is a fucking minefield in and of itself.  If you ever find yourself in the situation where you have to choose between an FBI interview and an FBI raid, and you cannot get an injunction, learn the FBI's policies regarding interviews (form 302, no recording,) and use their own dishonest rules against them.

Praetorian Guard's picture

Vaquero - just for your info, the FBI has recently been given authority to record interviews... Your best bet it to keep your mouth shut and request an attorney before you make any statements!!!! Come join us for free at www.gunsgrubandgold.com     Everyone is welcome!!!!  Survival links, financials, much much more!!!   Looking for moderators, writers, etc. if interested contact www.gunsgrubandgold.com administrator or webmaster!!!

El Crusty's picture

They know damn well why someone would want to toss them in a wood chipper- they dont care in the slightest.

What they do care about is deflecting peoples attention away from themselves and onto these filthy internet trolls who dare to question thier decisions in office before they infect the rest of the population with any more of this dangerous "thinking"

Thecomingcollapse's picture

Metaphorically speaking, I hope there is a special place in hell reserved for that horrible public official on whom I am entitled to comment, purely as hyperbole, on a matter of public concern under my First Amendment rights to free speech and to petition the Government for redress of grievances. Cf: The Screwtape Letters, an allegorical series of essays in which C. S. Lewis used Hell as a literary device for comment upon matters of spiritual and political concern.

El Crusty's picture

They definately wont do that. Veterans who commit suicide are a windfall to the government. No more expensive health care to pay out, no more help with housing and day to day living expenses, no more grants to school. that can all amount to $100,000+  per year per veteran in cash outlays vs a nice burial ceremony in a national cemetary that only costs a few hundred bucks.

there is a reason you dont hear daily reports of veteran suicides on the news and in the papers, but government talking heads always will mention the problem and how somebody should do something about it. They just want to give the appearance that they actually care so the whole thing can be continually swept under the rug along with the ashes of the dead who gave up everything to be used as pawns by the government.

TalkToLind's picture

Shit, it looks like everyone is afraid to make a comment on this article.

Jethro's picture

It isn't holder anymore...it's that new token person...

Citxmech's picture

Better watch out - under these new interpretations, comments like that might be viewed as attempted rape. . . 

venturen's picture

is it black or white, man, women or Jenner?

JuliaS's picture

I signed in to wish Mr. Bernanke a good day, right after complement Obama on having such a beautiful wife. Good luck to Hillary with her campaign. If I could elect her and Jeb Bush together, I would. God praise McCain - the last true American Patriot for keeping our land safe from terrorists and traitors such as Edward Snowden. Good fortune to Paul Krugman - our economic visionary, and speedy recovery to John Kerry, who totally does not look like a horse. No glue factory for you, my friend! No sir!

What a wonderful country! Tra-la-la-la.

Excuse me while I go pledge my daily allegiance to the flag.

centerline's picture

Bless you model Patriot.  May our dear overlords (errr... leaders) reward us for our unwaivering loyalty. 

greenskeeper carl's picture

Plus 1 to you sir. I would also like to add that I, for one, support everything our government and banker overlords are doing. It's for our own good, I'm sure.

Tall Tom's picture

Doubleplusgood. Yes. doubleplusgood.

WOAR's picture

I see nothing in the preceding comments that would require censorship.

This does not distress me in any way, and in fact gives me hope in humanity again.

All is right in the world.

Non Merger's picture

It's like you read my mind.

bbq on whitehouse lawn's picture

Unlawful force is unlawful. Force is not victory, its defeat.

ejmoosa's picture

Selective prosecution is someting every fascist government requires to be sucessful. 

Bunghole's picture

How did I know Krieger would be the one author this story.

LawsofPhysics's picture

So goes the way of empires...

A developer of a truly free market mechanism goes to prison for life while John Corzine is free...

same as it ever was...

El Vaquero's picture

Think zerohedge will receive a subpoena if we make note that Corzine deserves the guillotine, or do we have to bump it up a notch and argue that he deserves a wood chipper?  Perhaps just stating that there is a special place in hell for him?

ISEEIT's picture

Oh good...Glad to know the government is protecting us all from the psychopaths.

 

-:)

bigkahuna's picture

look the fuck out...