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“Reason”-able, Anonymous, Free Speech.

Reason-and-DOJ-ROH

Once in awhile, we get some flack from people who say that we should not write using pseudonyms or allow anonymous comments. There are generally two reasons we allow such postings. The first is that we don’t care too much who says what as we would rather deal with the ideas that are presented rather than who said them. People who demand to know who said something want to engage in the lame and ridiculous act of making ad hominem attacks. Instead of dealing with what is presented, people want to “attack the man” to somehow try to attempt discredit the writer.

Our second reason is a respectable concern as to what those who are being criticized will do, especially when those people work for the government.

For the past few weeks, the internet has been abuzz with talk of a subpoena issued to reason.com to uncover the names, emails and IP’s of those who made comments on the reason.com site. The reason the buzz was just “talk” was because it was rumored that not only had the government sought to stifle free and protected speech, they sought to make it illegal to disclose their actions.

The incident started with an article on reason.com concerning the sentencing of Ross Ulbricht.

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.

The six comments are:

Agammamon

Its judges like these that should be taken out and shot.

Alan

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

croaker

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

ED NOTE: the above comment is in reference to the movie Fargo.

Cloudbuster

Why do it out back? Shoot them out front, on the steps of the courthouse.

Rhywun

I hope there is a special place in hell reserved for that horrible woman.

Alan

There is.

Product Placement

I’d prefer a hellish place on Earth be reserved for her as well.

croaker

Fuck that. I don’t want to oay (sic) for that cunt’s food, housing, and medical. Send her through the wood chipper.

Ironically, prior to the US Attorney’s subpoena, the Supreme Court issued a ruling in the case of Elonis v. United States. Anthony Elonis had been convicted of making threats against his ex-wife on Facebook. The SCOTUS ruled that absent of any evidence that Elonis’ mental state would indicate he would carry out his threats toward his wife, the threats were just hyperbole and did not constitute a “true threat.”

While we disagree with some of the comments made on reason.com, the reality is that the comments were and are protected speech. It is speech that the government should be guarding instead of trying to suppress.

There is no doubt that the government could seek the information on the commenters. The real question is “what are they going to do with the information?” As we noted, the Supreme Court already ruled the speech and comments themselves were not a crime, so what would be the purpose of seeking the identifying information?

There is only one answer and it is terrifying: to investigate the people who made the comments to see what could be found on them. Even if nothing is found, maybe their businesses would be investigated. Maybe their taxes would be audited. Without the ability to make charges for the actual speech, the government would look elsewhere.

Faced with the subpoena, Reason did not give up easily. They contacted the people who had made the comments and told them the government was looking to subpoena Reason’s computer records to identify them.

The government’s response was to get a gag order preventing Reason from telling the individuals they were being investigated.

Fortunately, the cat was out of the bag to some extent as Reason had already contacted the people before the issuance of the gag order. Gayle Sproul, counsel for Reason, fired a letter back to the government in which he outlines the protection of free, anonymous speech. The letter is so good, that we will reprint a portion of it here:

In our telephone call, you expressed skepticism regarding both the existence of the First Amendment right to comment anonymously and the current trend for Internet services to alert their subscribers or commenters to subpoenas for information to allow them to assert their rights to prevent the release of that information where appropriate. That skepticism is not well-founded. On the first point, please see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342-43 (1995). In McIntyre, Justice Stewart traced the long history of the importance of anonymous speech in expressing unpopular points of view and recognized its incorporation into the First Amendment. He stated that anonymous speech is part of the nation’s “honorable tradition of advocacy and of dissent,” id. at 347, 357 (noting that “anonymity is a shield from the tyranny of the majority”), and its protection reflects the historical practice of “accord[ing] greater weight to the value of free speech than to the dangers of its misuse,” id. at 347. See also id. at 368 (Thomas J., concurring) (commenting on the “remarkable extent to which the Framers relied upon anonymity”); id. at 371 (Thomas, J., concurring) (“After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion.”); Doe No. 1 v. Reed, 561 U.S. 186, 219-20 (2010) (Scalia, J., concurring in judgment) (describing the majority opinion as acknowledging a “First Amendment right to anonymity”).

A case that illustrates both points is In re Grand Jury Subpoena No. 11116275, 846 F.Supp.2d 1 (D.D.C. 2012) (“the Twitter case”). There, an anonymous Twitter poster moved to quash a grand jury subpoena to Twitter. The court noted that “[u]pon receiving the subpoena, Twitter informed Mr. X of its existence and of Twitter’s intent to comply unless Mr. X filed a prompt motion to quash,” id. at 4, just as Reason.com did here. The court also explained, citing McIntyre, that “Mr. X has a First Amendment right to post on the Internet and to do so anonymously.” Id. The court stated that the right would not yield unless the Government could demonstrate “‘a compelling interest in the sought-after material” and “a sufficient nexus between the subject matter of the investigation and the information they seek.’” Id. (citing In re Grand Jury Investigation of Possible Violation of 18 U.S.C. § 1461, 706 F. Supp. 2d 11, 18 (D.D.C. 2009). In the Twitter case, the Department of Justice was investigating online threats made to then-Congresswoman Michele Bachman.

That did not sit well with the government.

Having already suggested that Reason might have interfered with a grand jury investigation, [US District Attorney] Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters’ constitutional rights and laying out the timeline of Reason’s notification to them. Velamoor told her that he now had “preliminary information” suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was “looking into it further.”

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney’s office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.

In the end, the gag order was lifted because the information was already made available to the commenters and therefore the public. At the same time, because none of the commenters filed a motion to quash the subpoena, Reason was forced to release the identifying information on the commenters to the government.

In short, this means that the government got the information they wanted while their nefarious actions were brought to light. Given that light only matters when you can step on the cockroaches, this is a government win, but it shouldn’t be.

When people want to know why we allow anonymous speech, the Reason case is one of the reasons. We will continue to allow anonymous speech and postings.

For more on the Reason.com case, Ken White over at Popehat has several articles on the issue. It was Ken who first started the ball rolling on exposing the actions of the government and the danger presented to us all by those actions.

Ken’s writings:

Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com

Media Coverage Of The Reason Debacle

Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

DoJ’s Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought



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