Back in 2011, as some of you may recall, we received a note from the US Marshals service, telling us that they were “investigating” a comment that had been placed on an article about a ruling by Judge Beryl Howell, who had received some criticism, given that she had previously been an RIAA lobbyist, and was now issuing rulings friendly to the legacy copyright industry. The comment in question was:

Is it time to start murdering the corrupt yet?

The guy from the US Marshals told us that he was investigating this comment and asked us to remove it (but did not ask for any information about the anonymous commenter). We found it somewhat disturbing that the US government would be asking us to delete comments, even if they, somewhat obliquely, questioned whether or not it might make sense to murder a judge (though the comment in question did not advocate such a move). We had our lawyer reach out the US Marshals, and after we told them that we would not be removing the comment, they told us that they understood our decision, and that was the last we ever heard about it.

It appears that things have gone much, much further with a similar situation with the website Reason, who we link to on a semi-regular basis. As Popehat is reporting, the DOJ has issued a grand jury subpoena to Reason seeking to identify the people behind a bunch of angry, hyperbolic comments on this post about Ross Ulbricht. As was the case with our post, some of the comments talk about killing judges, though in fairly typical internet fashion:

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.

The subpoena says that it’s investigating possible violations of 18 USC 875, which outlaws interstate threats. Popehat, of course, does an excellent job explaining why it is fundamentally and legally ridiculous to argue that any of these comments are “true threats” under the law.

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. 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 threadreacts 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.

There’s much more detail in the article.

Unfortunately, he also notes that the US Attorneys’ office can probably get away with this kind of bogus fishing expedition. Despite the fact that it’s extraordinarily unlikely that anyone engaged in these comments actually broke the law, the DOJ likely just needs to show that it has a “compelling interest” in investigating the mere possibility of a threat, and Reason can be forced to hand over the information. Following that, if the DOJ is feeling particularly nasty, it can make life horrible for those commenters in question. This seems like it should raise all sorts of First Amendment alarm bells about the chilling effects it can create for anonymous speech (especially political speech), but according to Popehat’s analysis, the courts (so far) aren’t buying it.

Equally as troubling is the fact that, when Ken “Popehat” White reached out to the US Attorney’s Office with questions about this, Niketh Velamoor, the Assistant US Attorney who signed the subpoena, pretended that there might be a gag order on the subpoena, even though he likely should have known that there was no such gag order:

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.

It’s much easier to try to intimidate anonymous internet commenters if you can do so without having to publicly disclose your own disdain for the First Amendment in the process….

Either way, shouldn’t we take a step back and ask a simple question: is this kind of thing reallywhat the US Attorneys should be working on? Especially in the Southern District of NY where so many high profile cases are going on all the time? At best, this is just a typical “cover your ass” situation. If the judge in Ross Ulbricht’s case actually did come to some harm, eventually it would get out that people were saying mean stuff on the internet, and the DOJ would like to be able to show that it did, in fact, investigate things, rather than ignore them. That means, most likely, nothing would ever come of this anyway in the long run. None of those commenters are likely to get charged with anything because they almost certainly didn’t do anything illegal.

But still… it’s frightening. The chilling effects are real. The Popehat article goes into these in much more detail, but in short, the US government can still cause tremendous problems for these commenters, even if everything they said is clearly protected speech. As White notes, you may think you’re just blowing off steam in making an angry comment, but that won’t stop you from being summoned to testify before a grand jury or to hire lawyers to defend yourself. Nor will it much matter should the FBI suddenly show up at your workplace, telling people there that they need to talk to you “just to clear some things up.”

Should the DOJ be investigating threats? Sure. But, at some point, someone has to have a little perspective and to understand what’s a threat and what’s just some commenters saying idiotic things online.

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