The Government Is Investigating People Who Leave Comments On The Internet Now

So much for freedom of speech.

bill-of-rights

Federal investigators have hit Reason with a subpoena over comments that were posted on the site to an article regarding the prosecution and sentencing of the founder of the famous, or infamous depending on your perspective, founder of the website Silk Road, and it is raising serious First Amendment concerns;

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 Reasoncommenter wrote.

“It’s judges like these that will be taken out back and shot,” another responded.

“Why waste ammunition? Wood chippers get the message across clearly,” a third wrote. “Especially if you feed them in feet first.”

Another comment suggested shooting such judges on courthouse steps instead.

Other comments flagged by the Justice Department were less violent, such as one that wished for “a special place in hell reserved for that horrible woman.”

In the subpoena, the Justice Department says it is seeking evidence regarding possible violations of federal laws against interstate threats.

Ken White, a California attorney who broke this story at Popehat earlier this week has a long long discussion of the facts at issue here that I recommend reading in full, and makes this excellent point about the legality of what the government is doing here:

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 targetingReason.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 subpoena1, 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”2 Reason has about participants in what the subpoena calls a “chat.”

The “chat” in question is a comment thread on Nick Gillespie’s May 31, 2015 article about Ross “Dread Pirate Roberts” Ulbricht’s plea for leniency to the judge who would sentence him in the Silk Road prosecution. That plea, we know now, failed, as Ulbricht received a life sentence, with no possibility of parole.

The subpoena claims that the material is being requested as part of an investigation into alleged violations of Federal laws that make it crime to make interstate threats, including threats against a Federal official such as the U.S. District Court Judge whose sentencing of Ross Ulbricht to life in prison has been the subject of criticism from libertarians and other civil liberties activists. However, as White goes on to note, it’s extremely unlikely that any of the comments in question could reasonably be considered to constitute the type of “true threats” that would bring them within the purview of the statute:

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.nar

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.

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

The timing of the subpoena is interesting because it happened the same week that the Supreme Court issued its opinion in Elonis v. United Statesa case that dealt with the case of a man who was prosecuted for threats he allegedly made on Facebook against his ex-wife. While the Court’s opinion in that case was narrower than some had anticipated in that it didn’t do very much to answer the questions regarding what constitutes a “true threat”  that have been floating out there since the Court’s last opinion on this issue, the Justices did rule that it was insufficient for the government to establish whether a reasonable person would have considered the communications at issue to be a threat. Instead, the prosecution must also provide some evidence of the Defendant’s state of mind at the time of the communication, either by showing that they intended for the communication to be a threat or by some other unstated means that relied on more than a reasonable person’s view. This holding seems to be particularly important in the context of this case.

Like many websites, Reason has a relatively unmoderated comment section that can get, shall we say, quite interesting depending on the subject matter on the post. It is often not a place for the uninitiated or easily offended to wander into, and this is especially true if one is used to visiting sites where there is more aggressive moderation of comments. One of the consequences of that is the creation of a no-holds-barred community where those leaving comments often feel free to, well, express their opinions very strongly. Even if one could make the case that any of the comments that apparently have raised the ire of Federal investigators came close to constituting a possible threat, and I think that would be a far stretch at the very least, the idea that any of these comments were anything other than people venting anger is rather absurd.

White also references a 2013 case from the Second Circuit Court of Appeals in which the Court upheld threats that a white supremacist named Hal Turner had made against three Federal Judges that he identified by name:

Here, Turner did not merely advocate law violation or express an abstract desire for the deaths of Judges Easterbrook, Bauer, and Posner. He posted photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse. Moreover, Turner’s intent to interfere with these judges—to intimidate them through threat of violence—could not have been more clearly stated in his pointed reference to their colleague, whose family members had been killed: “[A] gunman entered the home of that lower court Judge and slaughtered the Judge’s mother and husband. Apparently, the 7th U.S. Circuit court didn’t get the hint….”

Turner posted on his website that “Judge Lefkow made a ruling in court that I opined made her ‘worthy of death[,]’ [and] [a]fter I said that, someone went out and murdered her husband and mother inside the Judges Chicago house.” Given that Turner’s statements publicly implied a causal connection between Turner’s calls for judges’ deaths and actual murders, his statements about Judges Easterbrook, Bauer, and Posner, were quite reasonably interpreted by the jury as the serious expression of intent that these judges, too, come to harm.

There is quite simply no comparison between the comments that were left in the post at Reason and the threats that Turner made between three specific individuals that included detailed information about how to find them.

Over at Hot Air, Jazz Shaw opines that at least part of the reason why these comments ought to be investigated in this high-handed manner is because of the individuals involved, but his colleague Ed Morrissey makes a counter-argument that I think really puts this entire episode into perspective:

Public officials — and that includes judges — have lower expectations of defenses from unreasonable or unfair criticism. Posting the picture of a license plate of the person who cut me off in traffic along with descriptions of what I’d like to do to him should and probably would create more legal problems for me. And that’s actually far more than what any of Reason’s commenters did in this case. To give public officials more recourse to investigate criticism sets up a form of lèse majeste that would chill political speech even further.

Free speech depends on the rule of law, not the whim of the enforcer. The comments at Reason do not constitute a “true threat,” and therefore the DoJ has no business investigating them. Their pursuit of these commenters look more like retribution against Reason for their sharp criticism of the Silk Road prosecution (with which I disagree with Reason) than true concern over any threat posed by stupid, unspecific hyperbolic comments made on a website.

We can agree, I suppose, that the vitriolic comments that were left by these people were immature and stupid, but there’s nothing illegal about being immature and stupid. Indeed, if there was then half of the people who comment online would be breaking the law on a daily basis. The fact that they made dumb comments, though, isn’t a reason to launch a Federal investigation, nor is it an excuse for the FBI to use the heavy hand of a grand jury subpoena to tell a blogger or website operator that they need to open up access to their records or face the prospect of being held in contempt of court, if not becoming a subject of investigation all on their own. Under current law, it appears that it was probably perfectly legal for the U.S. Attorney who started all of this to do what they did, but that doesn’t mean that they should have done it, and it doesn’t mean that you shouldn’t get outraged. Because, as Ken White notes, it could happen to you:

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.

(I have it on good authority that Preet Bharara, United States Attorney for the Southern District of New York, is a big Giants fan who frequently attends parties with Eli Manning. Be careful.)

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?

Or, even if there’s no grand jury subpoena to you, what will it cost you when two FBI agents in black sunglasses, with all the warmth and good humor of an unmarked grave, show up at your place of work and tell the receptionist they need to talk to you, in a private room, “just to clear some things up”?

When the government starts acting the way it is in this case, it’s time for all of us to be concerned.

FILED UNDER: Crime, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Tyrell says:

    Here are my opinions about this:

  2. C. Clavin says:

    C’mon…the #1 rule of the computer age:
    Never put anything into a computer (email, text, comments section) that you would not want a jury to see.
    Personally I’m glad to see a couple keyboard commandos get their cage rattled. Should happen to cowards like that more often. It’s called accountability.

  3. Modulo Myself says:

    What is the grand jury investigating? If it’s Reason’s comments section, then it’s stupid. If it’s something else, like one of these jokers emailed a threat to a judge, then they probably have to give the identities up.

  4. DrDaveT says:

    Clearly, nobody at DOJ has ever read the comments at the Washington Post recently…

  5. Ben Wolf says:

    Coming from Lynch this isn’t a surprise. Too bad these commentors aren’t banks; they’d have been allowed to go on their merry way even if they’d actually carried out the threat.

  6. @C. Clavin:

    Personally I’m glad to see a couple keyboard commandos get their cage rattled.

    I demand Clavin immediately be prosecuted for threatening to kidnap people and put them in cages.

  7. EddieInCA says:

    I’m all for free speech… However… to me…. making comments abctout shooting a judge aren’t free speech. Complaining about a judge or criticizing a judge, personally or professionally, is one thing. Talking about shooting a specfic judge is something altogether different.

    I’d bring to witness the case of Dr. Tiller. Many people wanted those threatening him to be subect to prosecution. However, it was all “just hyperbole”… until someone shot him dead.

    Barnett Slepian
    Thomas Britton

    Just like I no longer know what constitutes a “flagrant foul” in the NBA, or what exactly is a “ball” or “strike” in Major League Baseball, I no longer know what actually constitutes a threat that would be punishable by law.

    In my simple mind, saying “I want to shoot that Judge dead” is a threat. Apparently, I’m wrong.

  8. Modulo Myself says:

    @DrDaveT:

    Well, they probably haven’t. Why would anybody? The defense that everybody knows how nuts and violent internet comments are relies upon everybody knowing that. But I don’t think this is the case. Older people who have careers in the law or as judges probably don’t know anything more than the basics of the internet.

  9. Facebones says:

    This can’t be considered a true threat. In order for it to be a serious threat, you’d have to expect one of the John Galt glibertarians to actually have the gumption to heft themselves out of the la-z-boy and find a judge and put her in a wood chipper. I would lay the odds of that at pretty remote. The worst part of this whole thing is that it will hyperinflate the already massive egos of Nick Gillespie and company.

    Seriously, the First Amendment protects everyone, and everyone includes Larry Flynt, neo-nazis, communists, and Mohammed cartoonists. This was not advocating hate speech, or libel, or yelling fire in a crowded theater. This is the idiots who comment on Reason mouthing off.

  10. Ron Beasley says:

    Boy am I screwed!

  11. michael reynolds says:

    This is very good news indeed, because if law enforcement has time to concern themselves with internet trolls it can only mean that all the murderers, terrorists, rapists, wife beaters, child abusers, financial manipulators, and Trump For President supporters have already been rounded up and slapped in prison.

  12. C. Clavin says:

    @Stormy Dragon:
    Youre right, of course.
    I should have said;

    get their mommies basement rattled.

  13. Scott says:

    I wonder about the allocation of resources involved with this, as well as, adult supervision. There are so many places to investigate (I’d focus on the banking and financial industry) that to go after mouthy internet trolls is a total waste. They’re afraid to go after the big boys so they bully the little ones.

  14. Hal_10000 says:

    Section 230 of the CDA has long been hated by various authorities. I suspect this is part of the broad and ongoing attack they’ve been working for years.

  15. grumpy realist says:

    I’d prefer that we go back to a “reasonable person” standard. Either that, or provide mucho leeway to anyone who feels threatened who gets his/her own gun in turn, tracks down the maker-of-threats, and blows HIS head off.

    I’d also like to see a LOT more cases of IIED torts being brought against clowns who think it’s funny to threaten rape or killing to individual people (a.k.a. the whole “Gamergate” crowd.)

  16. ernieyeball says:

    Matt Groening (rhymes with complaining) better watch out!
    https://www.youtube.com/watch?v=xF0r9KGnDW0
    Wait a minute. I’m the one who posted this. Maybe they will come after me!
    You wouldn’t turn me in OTB…would ya?

  17. Modulo Myself says:

    Left unsaid is that in general when the government asks for info on internet trolls, it’s handed over, no questions asked. Reason is not the norm. Death threats represent a form of leverage for the government.

  18. Dave Schuler says:

    It’s very disappointing. The AG almost certainly knows better than this.

  19. Anonymous says:

    [REDACTED]

  20. James Pearce says:

    I’m still waiting for hard evidence that our society is getting more censorious. This anecdotal evidence is, well, anecdotal. (-endsnark)

    (More seriously, part of me thinks you can’t really know how serious these, ahem, “threats” are until they’re investigated, but the part that wins out thinks that it defies credibility that these comments constitute legitimate threats.)

  21. EddieInCA says:

    So a question to all:

    At what point does internet bloviating cross the line into a threat punishable by law?

    Or is there no point at all, and all internet commentary is just protected-free-speech?

  22. Scott says:

    @EddieInCA: Seems to me that the standard should be identical to that of an individual bloviating out loud. Internet commenting has the same feel, same spontaneity, same pretty much anything except maybe its permanence.

  23. EddieInCA says:

    t@Scott: That’s my thought exactly, but doesn’t seem to be the case. If a person made a public comment, verbally, about wanting to shoot a specific judge, I would think that it could be reported as a credible threat. Yet, because it’s online in a forum or comment section, it’s not?

    I just don’t get the distinction.

  24. Modulo Myself says:

    @Scott:

    And the internet allows for the protection of anonymity. It’s the exact opposite of saying something out loud. Nothing on the internet feels like having a conversation.

  25. James Pearce says:

    @EddieInCA:

    I just don’t get the distinction.

    I’m not sure “online vs out in public” is the distinction we should be making. If all threats are to be treated equally, we definitely shouldn’t.

    But should all threats be treated equally? Or should we just worry about the credible ones?

    The reason I ask is that there seems to be this idea in our culture that any threat must be treated with the utmost of seriousness. To a certain extent, I understand. Post 9-11, no one wants to be the guy who ignored threats.

    But many threats are idle threats, mere expressions of anger or distaste. Do we need to make a federal case out of those?

  26. gVOR08 says:

    I have no idea of the intricacies of applicable law, but I seem to recall hearing of people who made threats in letters to the editor (you may remember, dead tree media) being contacted by the Secret Service or other agencies. I think mostly just talked to unless some further cause for concern surfaced. Perhaps that was out of line, but I don’t know why this should be treated differently.

  27. EddieInCA says:

    @James Pearce:

    But many threats are idle threats, mere expressions of anger or distaste. Do we need to make a federal case out of those?

    But in this case, we’re taking about threats to – literally – Federal Judges.

  28. MarkedMan says:

    This is inevitable. The idea that the Internet is a rules free zone simply cannot survive into a time when so much of our interaction is on the Internet. Clueless law enforcement officials aren’t ones investigating whether these nutballs are capable of following up on their threats. The Clueless officials are the ones who tell victims of gamergate doxing and rape threats that they should just stop using all social media.

  29. James Pearce says:

    @EddieInCA:

    But in this case, we’re taking about threats to – literally – Federal Judges.

    I will readily concede that federal judges were the subject of the discussion, but is this a threat?

    “It’s judges like this that should be taken out and shot.”

    To me, that’s a wishful statement of how things oughta be, at least according to this person’s warped political ideas. Where’s the threat?

    What about this?

    “It’s judges like these that will be taken out and shot.”

    To me, that’s a prediction (a bad one), not a threat.

    Is this a threat?

    Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.

    That’s a movie reference. Or maybe it’s a threat, but my mind instantly went to Fargo.

    These are the statements that inspired the subpoena. And I’m not sure any of them could be reasonably construed as actual threats.

    When I had a dog, I used to tell him, “I’m gonna kick your ass up between your ears and tell God you’re dead.” I didn’t mean it. I loved that little guy.

    But that….that was a threat.

  30. EddieinCA says:

    @James Pearce:

    So what is the line? What could one say online that would make it a threat and punishable by law? Given how many people read this blog and comment, I’m surprised how few people are willing to tackle that question.

  31. grumpy realist says:

    @EddieinCA: I think a lot of it comes down to a) is it a direct threat to an individual?, b) how serious is the threat?, c) is this the first comment, or as part of a series?

    I don’t, however, think that trolls should be able to mouth off as they please and then get to wave it aside with “oh, I was only joking!” or “you should know I didn’t mean it.” Dude–if you post rape threats about someone, either you want to frighten her–in which case we can clobber you on IIED, or you don’t want to frighten her, in which case the onus is on you to show you didn’t intend a direct threat to be taken as a direct threat.

    It’s interesting that if the troll states something derogatory that isn’t true, you can get him on libel charges whether he “honestly believed it or not” (modulo public figure law), but you can’t go after him for a threat, no matter how explicit he is.

  32. James Pearce says:

    @EddieinCA:

    So what is the line? What could one say online that would make it a threat and punishable by law?

    I’m not sure we need to go through the trouble of discerning where the line is, unless we’re doing it on a case by case basis, or at least not basing it solely on language. (I can think of a million threatening things that can be done without a single word. A finger sliding across the throat, say.)

    A threat is meant to intimidate, not to lampoon. Can there be a case made here that these commenters were trying to intimidate anyone?

  33. OzarkHillbilly says:

    Funny…. people call for Obama to be tarred and feathered (and far worse) all the time, on TV, and that’s just “politics”.

  34. ernieyeball says:

    When was the last time I heard someone threaten the President? Hell, when was the first time?
    When was the last time I threatened the President?
    Nixon? In 1970 when he thought it was a great idea to invade Cambodia?
    George the second? Any day of the week.
    I’m pretty sure the first time was when Lyndon Johnson built up the American troop presence in Viet Nam to 536,000 in 1968 after he had stated only four years earlier: “We are not about to send American boys nine or ten thousand miles away from home to do what Asian boys ought to be doing for themselves.
” (Oct. 1964)
    Of course the threats I tendered were to work as hard as I could to work within the bounds of our Constitution to rid the government of these chumps.
    Sometimes it works and sometimes it doesn’t.

  35. Grewgills says:

    Given the standard set by the supreme court in the Facebook threats case shouldn’t this be immediately tossed out? Or is the standard different when it’s a judge instead of an ex-wife? What if the ex-wife was a judge?

  36. Lit3Bolt says:

    This supopena is less about idiots jawboning in comments and more of the DOJ wanting to paw through Reason’s computer records and find arrest suspects related to the Drug War.

    They don’t care about the little fish. They want to find and lean on the big fish.

  37. PogueMahone says:

    These statements are akin to “go to hell.”

    The declarant neither intends to commit nor seeks to further the act of recipient going to hell. It is simply a statement of desire or an expression the recipient deserves to go to hell.

    If the statement contained “I will” or “I am going to” take you out back and shoot you in the head, then it would be a different story.

    Cheers.

  38. @PogueMahone:

    These statements are akin to “go to hell.”

    If you look at the popehat summary, one of the supoenaed comments was literally that. Apparently the DOJ is worried that an anonymous internet commenter may secretly be St. Peter.

  39. Gustopher says:

    @Grewgills: I would expect that this gets thrown out because of the Supreme Court decision. I think that decision was wrong, but this is far less threatening than the ex-husband repeatedly posting about killing his ex-wife.

    (I would put the line of prosecutable threats between these two, with the Reason comments being protected, but the public fantasies about killing the ex-wife not being protected)

  40. the Q says:

    I guess the difference is (at a ballgame saying):

    “Kill the quarterback” to “I am going to kill the QB after the game.”

    Or on OTB, “should ernieyeball be shot, the gunman should be congratulated” to “I am going to murder ernieyeball.”

    Maybe thats when the DOJ should step in.

    PS ernieyeball is merely being used as an example

  41. Thomas Weaver says:

    @DrDaveT: Or at Breitbart, or CNS, or Weasel Zippers or…-
    The DOJ would be hard pressed to view ALL the daily posts/comments that didn’t satisfy THEIR requirements…