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Free Speech Under Fire: Subpoenas, Gag Orders over Reader Comments at Reason Magazine

A bizarre government assault on Reason Magazine has been in progress for the past two weeks, and in a nice Kafkaesque touch, the magazine was barred from talking about the situation with a gag order.

In fact, they weren’t even allowed to acknowledge the existence of the subpoenas issued over comments left by readers to a blog post.  Fortunately, Reason was able to get the gag order lifted on Thursday, with help from the U.S. Attorney’s Office… but the saga is far from over, and it has disturbing implications for free speech in the Information Age.

Nick Gillespie and Matt Welch lay out the situation, which began with one of Gillespie’s blog posts:

On May 31, Nick Gillespie published a post at Reason.com’s Hit & Run blog discussing Silk Road founder Ross Ulbricht’s “haunting sentencing letter” to District Court Judge Katherine Forrest, and the judge’s harsh response. Gillespie noted that Forrest “more than threw the book” at Ulbricht by giving him a life sentence, which was a punishment “beyond even what prosecutors… asked for.”

In the comments section of the post, six readers published reactions that drew the investigative ire of the U.S. Attorney’s Office for the Southern District of New York. In a federal grand jury subpoena dated June 2, the U.S. District Court commanded Reason.com to turn over “any and all identifying information” we had about the individuals posting those comments.

This is the first time Reason.com has received such a subpoena from any arm of government.

From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting “voluntary” confidentiality. Exactly how common is anyone’s guess; we are currently investigating just how widespread the practice may be.

One suspects it will become more common if the government succeeds in harassing Reason over these user comments.

The comments that drew the attention of the U.S. Attorney’s Office contained hyperbolic language such as saying judges like Katherine Forrest “should be taken out back and shot,” to which another reader responded there was no point in wasting ammunition on such an endeavor, because “wood chippers get the message across clearly, especially if you feed them in feet first.”

That sort of thing is not uncommon fare in forum posts across the land, and while it’s clearly boorish to talk that way, one does not expect Miss Manners to swoop in with subpoenas and gag orders.  However, Gillespie and Welch note that the subpoenas went even further, including comments that talked about Forrest going to hell for what she had done, yet without even the faintest implication of violence.  Also, of the six individual users covered by the subpoena, three of them voluntarily included links to personal blogs in their profiles, raising the question of why the government felt it necessary to lean on Reason for information about them.

The Reason authors find a bit of irony in the fact that the Supreme Court rendered a decision, Elonis v. United States, that sharply limited the definition of what constitutes a “threat” in online communications.  In that case, the plaintiff successfully sought the voiding of a conviction for explicitly discussing violence against a specific individual in a “rap song” posted on Facebook, and it still wasn’t enough for the Supreme Court to agree with his conviction, because there was insufficient reason for prosecutors to believe he intended to make good on the threat.  It should go without saying that comment-forum blowhards ranting about wood chippers offer even less compelling justification for government action.

Thanks to the gag order, Reason wasn’t even allowed to notify the blowhards in question that the government was seeking information about them.  The magazine did so anyway, “against the government’s request but well within our legal rights,” because it’s obviously difficult for citizens to properly assert their First Amendment rights to anonymity when they don’t know the government is trying to violate those rights.  The U.S. Attorney’s Office menacingly suggested that Reason was “coming close” to interfering with a grand jury investigation by telling the targets they were under investigation.  The gag order went into effect shortly thereafter.

As author Mark Steyn, embroiled in his own ridiculous Kafka nightmare in defense of his free speech rights, has observed: “The process is the punishment.”  The Reason authors point out that fighting the government in a situation like this can be enormously expensive and time-consuming.  There is virtually no way to “quash” such a flimsy investigation at the outset; once the government pulls you into its legal roller coaster, you have to take the ride.  Conversely, Gillespie and Welch wonder how much time and money government investigators are pumping into wumpus hunts for online trolls, when there are more important things they ought to be doing.

This can have a horrific chilling effect on free speech, as both publishers and individuals live in fear of being targeted for what they say… and not even knowing they have been targeted until the investigation is well under way.  The expense of fighting back is prohibitive, so it’s better to just clam up.  The danger that publications can be slammed up against the lockers by officials, and forced to divulge information about readers who wish to remain anonymous, could ultimately spell the end of such open comment forums.  It also provides an avenue for sabotage by ideological opponents of a publication, or non-ideological mischief makers.

One way for websites to avoid such hassles is to quietly comply with government demands for information about users.  Reason suspects there is a great deal of such submissive compliance going on, citing reports that big social media sites like Facebook and Twitter have received tens of thousands of information requests from government agencies, and complied with the vast majority of them, probably without the users ever knowing it happened.

“To live in a world where every stray, overheated Internet comment — however trollish and stupid it may be — can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already,” Gillespie and Welch conclude. “As we gather and publish more information on just how often this sort of thing happens, we pledge to always be on the side of more speech rather than less.”

Liberty isn’t always seized in grand, breathtaking strokes.  It can be nibbled away at the margins, by making nominal rights that remain enshrined in the Constitution very difficult, or expensive, for citizens to exercise in practice.  That’s a long-standing strategy of the gun control movement — can anyone truly say, with a straight face, that the right to keep and bear arms has not been “infringed?”  Free speech can die the death of a thousand infringements too, and after watching such partisan abuses of government power as the IRS scandal, there is no reason to believe the nibbles will be evenly distributed across the ideological spectrum.

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