Sub­poena from hell

A U.S. at­tor­ney’s at­tack on online com­menters de­serves to re­side in a spe­cial place.

Los Angeles Times - - OP-ED - By Matt Welch Matt Welch is the editor in chief of Rea­son.

If you have dipped a toe into the fetid swamps of online po­lit­i­cal de­bate, chances are you have en­coun­tered — maybe even au­thored — acer­bic one-lin­ers like, “There is a spe­cial place in hell for that so-and-so _______!” (fill in the blank with your least­fa­vorite public of­fi­cial’s name).

De­spite its literary ori­gins in Dante’s “Inferno,” the spe­cial-place-in-hell for­mu­la­tion is ad­mit­tedly ju­ve­nile and dis­pro­por­tion­ate, which is prob­a­bly why Teddy Roo­sevelt and John F. Kennedy liked to use ver­sions of it so much. (Here’s JFK’s: “The hottest places in hell are re­served for those who in a time of moral cri­sis pre­serve their neutrality.”)

Online, it’s ev­ery­where. No. 3 on Buz­zfeed’s 2014 list of “55 Things That De­serve a Spe­cial Place in Hell” is John Tra­volta’s wig. Red­dit’s 2014 string ask­ing, “Which peo­ple have a ‘spe­cial place in hell’ wait­ing for them?” had, as of Wed­nes­day, 7,857 sug­ges­tions. The meme is more com­mon than Nige­rian email scams, and con­sid­er­ably less dan­ger­ous.

Un­less, that is, you think like the U.S. at­tor­ney for the South­ern Dis­trict of New York. For Preet Bharara, hy­per­bole is all the ex­cuse needed to ha­rass anony­mous com­menters and sti­fle the speech of po­lit­i­cal mag­a­zines.

On June 2, Rea­son.com, the web­site of the lib­er­tar­ian po­lit­i­cal mag­a­zine I edit, re­ceived a fed­eral grand jury sub­poena from Bharara, Man­hat­tan’s U.S. at­tor­ney, and his as­sis­tant Niketh V. Ve­lam­oor de­mand­ing “all iden­ti­fy­ing in­for­ma­tion” about six peo­ple who left com­ments on a May 31 blog post we pub­lished about the harsh sen­tenc­ing of Ross Wil­liam Ul­bricht, founder of the “dark Web” illegal drug em­po­rium Silk Road.

Rea­son’s com­menters had been fu­ri­ous at the ac­tions and words of U.S. Dis­trict Judge Kather­ine For­rest, who sen­tenced Ul­bricht to life in prison with­out pos­si­bil­ity of pa­role — a harsher pun­ish­ment than pros­e­cu­tors had asked for — and ac­cused him of har­bor­ing the “deeply trou­bling, ter­ri­bly mis­guided and very dan­ger­ous” belief that he “was bet­ter than the laws of this coun­try.”

So what com­ments were among those deemed wor­thy of com­pelling a pub­li­ca­tion to cough up in­for­ma­tion about its read­ers un­der penalty of con­tempt? Would you be­lieve, “I hope there is a spe­cial place in hell re­served for that hor­ri­ble woman”? And “I’d pre­fer a hellish place on Earth be re­served for her as well”?

Not only did such com­ments lead to the gov­ern­ment forc­ing Rea­son to di­vulge iden­ti­fy­ing in­for­ma­tion about our read­ers (given the wide-rang­ing au­thor­ity of fed­eral grand ju­ries, the chances of suc­cess­fully re­sist­ing were vir­tu­ally nil), the feds two days later pro­hib­ited the mag­a­zine from even ac­knowl­edg­ing the ex­is­tence of the orig­i­nal sub­poena, let alone the shiny new gag or­der.

Imag­ine the fun: A lib­er­tar­ian mag­a­zine, which has been crit­i­ciz­ing the drug war and gov­ern­ment over­reach for 47 years while fight­ing con­stantly to ex­pand the pa­ram­e­ters of free speech, legally barred from talk­ing about an egre­gious free-speech clam­p­down in its own lap.

For­tu­nately, other out­lets were not so re­strained. Be­fore Bharara and Ve­lam­oor ob­tained the gag or­der, Rea­son was able to alert the com­menters to the sub­poena, which was posted June 8 (and crit­i­cized with­er­ingly) by the le­gal blog Pope­hat. This in turn led to cov­er­age and com­men­tary in scores of publi­ca­tions (sam­ple head­line, from Bloomberg View: “Rea­son Mag­a­zine Sub­poena Stomps on Free Speech”).

Yet we suf­fered in si­lence for 11 more days, un­til fi­nally the court va­cated the gag or­der, know­ing we were about to file to get it lifted. What is now be­com­ing clear is how wide­spread such in­tru­sive com­menter-I.D. re­quests and speech­squel chings are.

A 2013 Mother Jones in­ves­ti­ga­tion found that “col­lec­tively, Google, Face­book, Mi­crosoft, and Twit­ter re­port re­ceiv­ing tens of thou­sands of re­quests for user data from the U.S. gov­ern­ment an­nu­ally.” The num­bers were in­creas­ing each year, ac­cord­ing to the re­port.

To be fair, not all of the Rea­son 6’s com­ments on Judge For­rest fall into the “spe­cial place in hell” cat­e­gory; some were much worse: “Its [sic] judges like these that should be taken out back and shot.” And: “Why waste am­mu­ni­tion? Wood chip­pers get the mes­sage across clearly. Es­pe­cially if you feed them in feet first.” There’s no de­fend­ing these sen­ti­ments. But ask your­self this: How re­al­is­tic is the no­tion that an anony­mous In­ter­net com­menter would kid­nap For­rest and head for the wood chip­per?

Gag or­ders are un-Amer­i­can and should be ap­plied only as a last re­sort, not as a boil­er­plate ac­tion rub­ber­stamped by a judge. Grand ju­ries, which were orig­i­nally de­signed as checks on gov­ern­ment power, have de­volved into in­ves­tiga­tive in­stru­ments for ha­rass­ing com­menters and web­sites that have com­mit­ted no crimes.

For any­one who dis­agrees with that as­sess­ment, why, there’s a spe­cial place in hell for you too!

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