Justice Dept. subpoenas Reason Magazine to find anonymous commenters. Internet implodes

The Libertarians are up in arms this week after the Justice Department served subpoenas to Nick Gillespie’s Reason Magazine over comments left on their web site by anonymous readers. The commentariat buzz in question erupted over an article dealing with the life sentence imposed on Silk Road founder Ross Ulbricht. This has prompted some outraged cries from observers such as Bloomberg contributor (and former Reason editor) Virginia Postrel, who described the move as stomping on free speech. Powerline’s Steven Hayward (coincidentally also a former contributor to Reason) wonders aloud whether the Justice Department attorneys are just stupid or possibly working in league with Rand Paul.

When we look a bit deeper into the details of the case, however, the outrage might be just a tad premature. The comments in question seem to go a fair ways beyond the normal opinions – or even blatant trolling – that you find in comment sections across the web. Keep in mind that the subject of their ire is a federal district judge. And the “criticism” of her included suggestions that she be fed into a wood chipper or taken out back and shot.

The question here is whether these nasty missives constitute a “true threat” to the life of the judge. For a reliably expert look at the situation, we can check in with Ilya Somin at The Volokh Conspiracy for the details. He and Ken White start off by concluding that it’s probably not a case of a true threat, but rather the typical, acidic venom which is frequently spewed by upset, anonymous readers.

For reasons White explains, the comments almost certainly do not qualify as “true threats” against the judge. They are, rather, the kind of nasty and stupid vitriol that is all too common in anonymous comments on the internet. For example, one of the commenters wrote that “judges like these… should be taken out back and shot,” another opined that “I hope there is a special place in hell reserved for that horrible woman,” and a third replied that “I’d prefer a hellish place on Earth be reserved for her as well.”

Nasty stuff, indeed. To put it mildly, comments such as these are hardly valuable contributions to public discourse. But if federal prosecutors investigated every similar anonymous comment on the internet, we could probably devote the entire federal budget to hunting down these types of blogosphere trolls, and still not find them all.

Fair enough. But he goes on to note that you can’t just turn a blind eye, either.

White also notes that, under current judicial precedent, federal prosecutors likely have the authority to seek a subpoena in cases like this. But even if this practice is legally permissible, it is still ill-advised. In addition to wasting substantial resources that could better be devoted to investigating real crimes, it is unlikely that this power will be used in an even-handed way

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.

I also have to wonder how much some of these protests are grounded in the way we tend to poison the well of free speech protection based on who the speakers are threatening. Would we all be rushing to the defense of both the magazine and the rights of the commenters making the threats if they were implying that they were going to go chop off Pamela Geller’s head? Assuming the writer turned out to have no history of violence, is that just free speech? Or were they possibly on the cusp of having been turned to the dark side by jihadist web sites and videos? That’s a pretty tough call to make for the layman, but would you deny the DoJ the chance to figure out who they were and how serious there intents might be?

Apparently the Silk Road founder is a rather sympathetic figure in Libertarian circles. (And that’s for reasons which completely escape me.) But that shouldn’t matter. If you did some digging I wouldn’t be surprised if there had been threats from enraged community organizers leveled against the judge who found Officer Brelo not guilty in Ohio last month . And if there were, should we decry a subpoena issued to investigate the people penning them?

Threatening to feed somebody into a wood chipper isn’t free speech. And every once in a while the person writing it will actually turn out to own a wood chipper. Perhaps we shouldn’t be setting our hair on fire over these subpoenas just yet.

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