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.
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.
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:
AgammamonI5.31.15 @ lO:47AMltt
Its judges like these that should be taken out back and shot.
AlanI5.31.15 @ 12:09PMltt
It's judges like these that will be taken out back and shot.
croakerI6.1.15 @ 11:06AMltt
Why waste ammunition? Wood chippers get the message across clearly. Especially if you
feed them in feet first.
Cloudbusterl6.l.15 @ 2:40PMIIt
Why do it out back? Shoot them out front, on the steps of the courthouse.
Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.
AlanI5.31.15 @ 12:11PMIIt
Product PlacementI5.31.15 @ 1:22PMIIt
I'd prefer a hellish place on Earth be reserved for her as well.
croakerl6.l.15 @ 11:09AMIIt
Fuck that. I don't want to oay for that cunt's food, housing, and medical. Send her through
the wood chipper.
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.
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.
The subpoena raises a few questions:
First, are Those Comments True Threats?
Second, if they are not true threats on their face, does the U.S. Attorney's Office still have the power to use a grand jury subpoena to identify the commenters?
Third, even if the U.S. Attorney's Office has the power, should it have that power?
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.
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. It lacks any of the factors that have led other courts to find that ill-wishes can be threats. For instance, the Second Circuit upheld white supremacist Hal Turner's threats conviction when he said that three federal judges deserved to die.
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 are no factors like that in this case. Consider this purported "threat":
Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.
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
The grand jury's investigative power — exercised nominally on its behalf by the U.S. Attorney's office — is nearly unchecked. It's not like a stop-and-frisk or search; the government doesn't need reasonable suspicion or probable case to use grand jury subpoenas to seek information. In general, one can only challenge grand jury subpoenas when they are irrationally burdensome (like demanding that Apple produce every document about iPhones in its possession) or for an improper purpose (like using the grand jury to improve trial evidence after an indictment has already been returned) or, very rarely, when privacy or constitutional issues are in play.
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.
The court began in promising fashion by saying that Mr. X had a protected interest in anonymity:
In particular, a grand jury may not compel testimony from an individual who holds a valid “constitutional, common-law, or statutory privilege,” id., because compliance in such a scenario would be “unreasonable or oppressive” for the purposes of Rule 17(c). See, e.g., In re Grand Jury, John Doe No. G.J.2005–2, 478 F.3d 581, 585 (4th Cir.2007). Mr. X has a right under the First Amendment to post on the Internet, and to do so anonymously. See McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ( “Anonymity is a shield from the tyranny of the majority.”); Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (applying the First Amendment fully to the Internet); see also Sinclair v. TubeSockTedD, 596 F.Supp.2d 128, 131 (D.D.C.2009). Accordingly, the grand jury may not subpoena Twitter to gain information regarding Mr. X's identity unless the government can show “a compelling interest in the sought-after material” and “a sufficient nexus between the subject matter of the investigation and the information they seek.” In re Grand Jury Investigation of Possible Violation of 18 U.S.C. § 1461, 706 F.Supp.2d 11, 18 (D.D.C.2009).
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:
It bears note that the Court has grave doubts about the likelihood of a grand jury returning an indictment in this case. A “true threat” requires a “serious expression of an intent to commit an act of unlawful violence.” Black, 538 U.S. at 359, 123 S.Ct. 1536. There appears to be nothing serious whatsoever about Mr. X's Twitter page, except perhaps the severity of mental depravity that would lead a person to produce such posts. Furthermore, in Watts v. United States, the Supreme Court considered a Vietnam War protestor's statement that, if drafted and given a rifle, “the first man I want to get in my sights is L.B.J.” 394 U.S. 705, 706, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). The Court determined that such “political hyperbole” did not constitute a “true threat.” Id. at 708, 89 S.Ct. 1399. A fortiori, it seems, were Mr. X to bring a motion to quash an indictment based merely on the facts now before the Court, the Court might well have occasion to grant that motion.
Yet the court found that the government had a "compelling interest" in investigating all threats, however ridiculous:
The government must take seriously all threats against a major presidential candidate such as Ms. Bachmann, unless and until it is satisfied that there is no likelihood that the threat was legitimate. Part of taking a threat seriously may include attempting to convince a grand jury to return an indictment. . . . .But it is for the Executive, not a court, to decide whether an investigation is even worth pursuing.
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?
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.
Is A Reference To Fargo, On The Fucking Internet, Something That Should Concern The Government?
In the Coen Brothers film Fargo, some very bad people feed another very bad person into a woodchipper. To destroy his body. This is a famous scene. This is a famous movie. It won academy awards. It's clearly the basis for one of the comments identified in the Reason subpoena. This is the sort of internet comment, a "meme" as the kids call it, that our government is investigating.
It's as though the Department of Justice convened a grand jury to probe the criminal nexus between gun-leaving and cannoli-taking, based on Reddit comments.
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 not required 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.
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.
Or maybe you're nice people. You use the internet to check email, which allows you to serve customers in a better fashion. You never comment on matters of public concern. Your email signature reads:
HAVE A BLESSED DAY!
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:
I hope there is a special place in hell reserved for that horrible woman.
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:
Metaphorically speaking, I hope there is a special place in hell reserved for that horrible public official on whom I am entitled to comment, purely as hyperbole, on a matter of public concern under my First Amendment rights to free speech and to petition the Government for redress of grievances. Cf: The Screwtape Letters, an allegorical series of essays in which C. S. Lewis used Hell as a literary device for comment upon matters of spiritual and political concern.
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"?
I understand that Reason, on advice of counsel, may not be able to comment on these questions. I invite other journalists left and right to do so, because it can, and will, happen to you. All it takes is one presidential election.
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.
- The subpoena is in the form in which I received it, except that I printed it and re-scanned it and redacted the direct phone line of the Assistant U.S. Attorney who issued it. ▲
- The subpoena specifies that "identifying information" includes:
1. Subscriber/Account information, if any
2. Associated addressees, email addressees, telephone number(s)
3. IP addressees associated with the postings
4. Billing information to include credit card/bank information, if any
5. Associated devices connected to the user. ▲
- It's a shame the Supreme Court didn't decide what exactly does constitute a true threat in last week's Elonis decision, but that battle will be fought another day. ▲
- In the somewhat related context of defamation, many courts have found that statements on the internet are less likely to be taken as assertions of true fact and more likely to be taken as mere opinion or hyperbole. Chaker v. Mateo, 209 Cal.App.4th 1138 (2012) (affirming anti-SLAPP order where online insults were properly understood as opinion; surveying California cases establishing that online expression more likely to be taken as opinion than fact); Nicosia v. De Rooy, 72 F.Supp.2d 1093 (N.D. Cal. 1999) (granting anti-SLAPP motion and motion to dismiss where “readers are less likely to view statements as assertions of fact” in context of web site’s claims of misconduct). ▲
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