Thursday, June 11, 2015

"If the government gets its way in this case, free speech suddenly becomes rather costly for all involved no matter the outcome."

If the government imagines a ‘threat,’ it can bully whoever it wants

by Sam Rolley

The Justice Department is harassing the libertarian publication Reason with a grand jury subpoena because government officials allege that commenters on its website threatened the life of a federal judge with hyperbolic political language.

On May 31, Reason website editor Nick Gillespie published an article discussing the prosecution of Silk Road founder Ross Ulbricht and a letter Ulbricht had written to Judge Katherine Forrest in a plea for leniency prior to his sentencing.

Gillespie published the following portion of Ulbricht’s letter:

I created Silk Road because I thought the idea for the website itself had value, and that bringing Silk Road into being was the right thing to do. I believed at the time that people should have the right to buy and sell whatever they wanted so long as they weren’t hurting anyone else. However, I’ve learned since then that taking immediate actions on one’s beliefs, without taking the necessary time to really think them through, can have disastrous consequences. Silk Road turned out to be a very naive and costly idea that I deeply regret.

Silk Road was supposed to be about giving people the freedom to make their own choices, to pursue their own happiness, however they individually saw fit. What it turned into was, in part, a convenient way for people to satisfy their drug addictions. I do not and never have advocated the abuse of drugs. I learned from Silk Road that when you give people freedom, you don’t know what they’ll do with it. While I still don’t think people should be denied the right to make this decision for themselves, I never sought to create a site that would provide another avenue for people to feed their addictions. Had I been more mature, or more patient, or even more worldly then, I would have done things differently.

Forrest was nonplussed by the defendant’s letter and handed down a sentence of life in prison without parole, an even harsher punishment than government prosecutors had sought for the Silk Road founder.

The judge was also careful to make clear her disdain for the political philosophy behind the Silk Road marketplace.

“In the world you created over time, democracy didn’t exist,” she said during sentencing. “Silk Road’s birth and presence asserted that its … creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”

Some of Reason’s commenters were unhappy with the ruling and lashed out in the comment section below Gillespie’s article.

According to a June 2 grand jury subpoena from the government, some of those comments potentially violate federal laws against making interstate threats.

In the subpoena, the investigators demand that Reason produce “any and all identifying information” for the users behind the following comments:
•“Its judges like these that should be taken out back and shot.”
•“It’s judges like these that will be taken out back and shot.”
•“Why waste ammunition? Wood chippers get the message across clearly. Especially if you
feed them in feet first.”
•“Why do it out back? Shoot them out front, on the steps of the courthouse.”
•“I hope there is a special place in hell reserved for that horrible woman.”
•“There is.”
•“I’d prefer a hellish place on Earth be reserved for her as well.”
•“Fuck that. I don’t want to oay [sic] for that cunt’s food, housing, and medical. Send her through
the wood chipper.”

According to the website PopeHat, which first published the subpoena, there is little reason to believe that the government actually thinks any of the comments represent a true threat to Forrest or any other federal judge.

Ken White wrote on the website:

What of these comments on, 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. The are on a political blog, about a judicial-political story; such stories are widely known to draw such bluster. They are specifically at, 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.

And White isn’t the only one who has described the governments subpoena as bogus. University of Oregon School of Journalism and 1st Amendment scholar Kyu Youm told BuzzFeed: “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. At least, if there is doubt as to the validity of the subpoena, anonymity should be given the benefit of the doubt.

“The subpoena is not compelling,” Youm added.

In other words, there is really no chance that anyone will ever be convicted of a crime for making the aforementioned comments.

So why would the government waste time and taxpayer money trying to force Reason to hand over the identity of its commenters?

Former Reason editor and current Bloomberg View columnist Virginia Postrel said in a recent column that the government’s goal goes far beyond identifying the commenters.

She wrote:

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.

If the government gets its way in this case, free speech suddenly becomes rather costly for all involved no matter the outcome.


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