Two weeks ago, Ken White at Popehat reported that the Department of Justice had subpoenaed the records of Reason Magazine to identify anonymous commenters on its website. Nick Gillespie had criticized the DoJ for its prosecution of the Silk Road case, and a few of its commenters had responded with the usual hyperbole. White found out about the subpoena, but Reason remained so quiet that it became a matter of open speculation as to whether the court had slapped a gag order on the libertarian magazine. Today, Gillespie confirms the gag order, which has since been vacated, and explains the circumstances in which the government of the United States prevented a publication from discussing the abuse of power directed at it:
At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, “No.” Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was “coming close” to interfering with the grand jury investigation. The call ended abruptly. …
Later that day, at approximately 5:35 pm ET, Velamoor sent Reason a gag order he had later secured blocking us from discussing the subpoena or the order itself with anyone outside of Reason, other than our attorney. …
Having already suggested that Reason might have interfered with a grand jury investigation, 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.
Be sure to read it all. White is outraged over the intimidation from the DoJ, especially given the specious claim that any of these comments represented a “true threat” in a legal sense. He calls it “the everyday arrogance of unchecked power”:
First, the subpoena. Some have argued that the Department of Justice must have had information spurring them to use the grand jury to pierce the anonymity of people engaged in protected political speech. Not so. As Reason’s report shows, Assistant U.S. Attorney Niketh Velamoor never articulated any specific basis to fear the bluster of these commenters — any more than he did when I spoke to him.
Saturday I interviewed Mike Alissi, publisher of Reason, who confirmed that Velamoor never suggested that he had any basis to view these as true threats. In fact, he seemed uninterested in the distinction between protected speech and true threats, and refused to narrow the subpoena to carve out the patently non-threatening “special place in hell” commenter. There is no secret ticking time bomb, no wizard with a woodchipper, no classified justification.
This was the Department of Justice targeting speech because it could.
White also accuses the DoJ of attempting to poison the relationship between Reason and its attorney, Gayle Sproul:
Gillespie and Welch also describe how AUSA Velamoor conveyed the gag order. Reason’s attorney, Gayle Sproul, called Velamoor, told him that she represented Reason, and tried fruitlessly to reason with him. Velamoor blustered, then sought and obtained a gag order. But he didn’t send it to Reason’s attorney, with whom he had spoken only hours before. Instead, he sent it directly to Alissi, Reason’s publisher:
Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.
I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.
Please forward the Order to the attorney and any other individuals who should be aware of it.
Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney. …
If I did that, I’d be disciplined. If Gayle Sproul did it, she’d be disciplined. That’s because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication. That prevents lawyers from tricking the clients of other lawyers into ignoring their counsel to their detriment.
If all this seems like a lot of effort over a handful of comments containing idiotic bluster, you’re right. White points out that the judge who approved this gag order happens to work in the same courthouse as the judge Gillespie criticized for his handling of the Silk Road case, which makes all of this seem more than a little incestuous. It also looks very much like the government conspiring to shut down dissent, and to run roughshod over Reason’s Fourth Amendment rights as well as its First Amendment Rights.
Gillespie sums up the threat well:
As libertarians who believe in “Free Minds and Free Markets,” Reason takes seriously an obligation to our audience and to our critics not simply to hold on to what we’ve got but to increase the rights of everyone to speak openly and without figurative or literal prior restraint.
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. 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.
Glenn Reynolds calls this “a brushback pitch,” but one from a 500-mph fastball:
When the government orders people not to talk about what it’s doing, it’s hard to keep track of what it’s doing. That’s what the First Amendment is intended to prevent. It’s ironic that the Obama administration — whose supporters in 2008 made much of threats to civil liberties from George W. Bush’s national security apparatus — has so thoroughly embraced surveillance and gag orders.
But if it won’t support a prosecution, why gather this information? Bharara’s office isn’t talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you’d be wise not to do so if you don’t want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.
Of course, the First Amendment term for “brush-back pitch” is “chilling effect.” The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That’s an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.
Had there been a serious “true threat,” then perhaps this approach might have some merit. In this case, though, there was nothing that came close to meeting that standard. As I wrote earlier this month, free speech and liberty in general depends on the rule of law, not the rule of whim. The Department of Justice needs a housecleaning to put it back onto the former.