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