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
By Michael Krieger: Readers 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.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.
Administrators also maintained that university policy took precedent over Constitutional rights, according to the complaint.
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.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:
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.
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.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.
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.”
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:
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.
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.Read that over and over again, until you realize how incredibly absurd and dangerous that court argument is.
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.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.
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”:
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.
Should The Government Exercise Power To Identify Anonymous People Over Clear Bluster?This falls into the very important category of know your rights.
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.
In any case, Mr. Velamoor has provided me with no such order, despite a request.First they came for the comment section, and I said nothing…
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:
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.
In Liberty,
Michael Krieger
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