Writers and producers of on-line content like to joke that the first rule of the business is not to read the comments. The cadre of commenters at Hot Air are the exception, of course, but having been a fan and reader of Reason in both its print and on-line forms for years, I’ve tended to take that advice over there. Reason pointedly does not do much or any moderation of comments in keeping with their libertarian philosophy, which is worthy of their commitment but definitely produces content that is an acquired taste for many readers.

Still, it is a matter of taste for anything that doesn’t cross the line into violations of the law.  Last week the Department of Justice claimed that several comments did just that by threatening the safety of the federal judge on the Silk Road case who issued a life-without-parole sentence for operating a website that trafficked drugs and other crimes. They subpoenaed Reason Magazine to cough up the identifying data on commenters in order to track them down, and Reason has vowed to fight the order as a defense of free speech.

Ken White first reported the subpoena at Popehat:

Last week, a source provided me with a federal grand jury subpoena. Thesubpoena1, 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.
FTFY.

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
There is.

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.

None of these comments are terribly insightful, and a couple of them wouldn’t get past the language filters here at Hot Air. That’s not the question, though. This is: Are these true threats, or just hyperbole? As Ken writes, that’s not a philosophical question, but a legal standard:

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.

Just a week ago, the Supreme Court made it clear that any allegations of speech being a threat actionable by government had to clear a high bar in its Elonis ruling. These comments above don’t come anywhere close to that standard. There’s no specificity to these comments, and indeed there isn’t a hint in them of any kind of personal action to accomplish the actions mentioned. It’s not even an incitement for others to action. Elonis actually specified his wife in a forum she frequented (Facebook) and specified the kind of action he personally wanted to take against her — and the court still vacated his conviction in order to have a new jury instructed on a higher bar for considering intent. (It’s still likely Elonis will end up convicted under the higher standard, if one reads the Supreme Court’s recitation of the threats posted on social media.)

The worst case that can be made about these commenters is that they are, for lack of a better word, assholes. Some may be shocked to find that this personality type can be found on the Internet, but most of us know they abound in this environment. It may not be pleasant to have them around, but it’s not illegal to speak unpleasantly and hyperbolically. That is, in fact, a consequence of free speech, and in forums like Reason, those who wish to avoid assholes can easily do so by strict application of the First Rule of Internet Writing noted in the opening of this post.

The Department of Justice, which is presumed to know the law, now wants to investigate assholery as a legal issue. Imagine what that will mean, especially for an agency that wants to define the limits of “threat” far past anything written in law or set in court precedent. Any potentially harsh criticism of public officials could result in an interrogation, law enforcement knocking on the doors of neighbors and employers to judge your potential threat level, all because of a stupid comment that doesn’t legally rise to the level of a true threat.

That, by the way, will be exactly what happens to the people who will be exposed by this subpoena. It’s not a hypothetical. They will not have broken any laws, but they will have their lives turned upside down. How many of them will participate in public debate after an experience like that? How many others, seeing that unfold, will either water down criticism of public officials or simply shut up? The chilling effect on speech would be real, immediate, and widespread.

Earlier today, Jazz argued that the target of the alleged threat justified the response:

Both Somin and White go on to talk about the potential “chilling effect” on free speech and I won’t discount that entirely, but we seem to be rushing past a few key points here. First and foremost is the fact I pointed out above. We’re talking about a federal judge here. And while it would be nice to pretend that our system of justice treats everyone in the nation as a society of equals, we all know that’s not true. You can make threatening sounding comments like that about the idiot who cut you off in traffic or one of the writers here at Hot Air, (thanks, guys!) and you probably won’t find the Men in Black knocking on your door. But if you write anything that sounds like a threat against the life of the President, you’ll find yourself in line for some very special attention. There’s a reason we ban anyone here who does that and this policy is fairly uniform across the professional side of the web.

Further, there’s actually a valid reason for this. Taking any human life is evil, but when you go after an elected official, a cop or a judge, you are attacking the system of justice and the rule of law which keep us from falling into anarchy and oblivion. It’s a serious thing and law enforcement treats it as such.

Actually, I’d argue the reverse. Public officials — and that includes judges — have lower expectations of defenses from unreasonable or unfair criticism. Posting the picture of a license plate of the person who cut me off in traffic along with descriptions of what I’d like to do to him should and probably would create more legal problems for me. And that’s actually far more than what any of Reason’s commenters did in this case. To give public officials more recourse to investigate criticism sets up a form of lèse majeste that would chill political speech even further.

Free speech depends on the rule of law, not the whim of the enforcer. The comments at Reason do not constitute a “true threat,” and therefore the DoJ has no business investigating them. Their pursuit of these commenters look more like retribution against Reason for their sharp criticism of the Silk Road prosecution (with which I disagree with Reason) than true concern over any threat posed by stupid, unspecific hyperbolic comments made on a website.

The DoJ should abide by the First Rule of Internet Writing, and end this investigation forthwith. Failing that, a judge should inquire where the attorneys fronting this got their law degrees, and advise them to seek refunds.