At Popehat, Ken White relates an utterly bizarre story:
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.
. . .
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.”
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.
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
Inter alia, the “offending” commenters are guilty of writing such gems as, “Its judges like these that should be taken out back and shot”; “Why do it out back? Shoot them out front, on the steps of the courthouse”; and “Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.” This lattermost comment — which inspired a number of the others that were flagged by the federal government — is a clear and semi-lighthearted reference to the movie Fargo.
As White correctly observes, the government is on extremely weak ground here, for these comments do not come close to constituting “true threats” that are unprotected by the First Amendment:
“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.
Why? Well, because:
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.
Sadly, the Department of Justice can probably annoy everyone a great deal before it either loses or gives up trying. “The government doesn’t need reasonable suspicion or probable case to use grand jury subpoenas to seek information,” White confirms. “Regrettably, the government can probably abuse the Grand Jury subpoena power this way.” What it almost certainly cannot do, though, is win in court. Indeed, it is especially bizarre that the DOJ would pick this fight given that just last week the Supreme Court made it clear that, in order for a person to be found guilty of issuing “true threats,” prosecutors must demonstrate not only that a reasonable person would construe the words at hand as a “threat” but convince a jury that he knew what he was doing. Writing for the majority, Chief Justice Roberts concluded that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Under this standard, jokes, hyperbole, and rank stupidity in the comments section of a website are, frankly, not going to cut it. Good old mens rea would make sure of that.
In the meantime, though, the process will serve as the punishment. Asinine. Iniquitous. UnAmerican.