Posted on 06/10/2015 5:18:06 AM PDT by SeekAndFind
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.
Yes, but things have changed in the last ten years. It used to be that most networks were not secured. They are pretty rare these days unless they leave them open on purpose, e.g. coffee shops.
All the comments are in the subpoena:
http://popehat.com/wp-content/uploads/2015/06/Revised-Grand-Jury-Subpoena.pdf
I think perhaps the commenter got it wrong procedure wise.
the course seen in the movies its to take her out back, shoot her, put her in a freezer and then put her through the wood chipper.
less mess and a more perfect grind
I tend to your side of the argument because having been in WWII and having my brother killed on Okinawa I know that sometimes in some situations the taking of another person’s life is a matter of life or death. Such has been since recorded time and even the Bible tells of God sanctioning war and death.
I understood what you wrote. I was simply trying to engage in discussion of the finer nuances of free speech.
WayneS: “...please do not make the mistake of assuming that my defending them means I agree with what they are saying.”
I did not. I also understand the comments did not rise to the level of a threat in your opinion. I’m simply pointing out that’s a subjective assessment. To say something is or is not REAL freedom of speech, one must have a very clear standard as to what is and is not protected speech. Are perceived threats protected free speech? If perceived threats aren’t protected, whose perception applies?
Ironically, this type of ham-handed behavior results in something good, that websites that permit commentary learn to automatically delete anonymous user metadata within a day after a post is made.
This works at two levels: it does permit source determination if there is a “clear and present danger”, a direct and tangible threat; but at the same time it effectively closes the recovery window so quickly that some egotistical politician or judge or whoever does not have the time to subpoena the data before it is deleted.
The downside is that it pushes subscription sites whose users have fixed metadata to make themselves more anonymous oriented. It would be unfortunate, and be a major hassle to sites like FR, that thrives on the free exchange of ideas between “polite people”, without a constant deluge of planted posts, trolls, political operatives, etc.
Perhaps we shouldn’t be setting our hair on fire over these subpoenas just yet.
Right. After all, it’s only the Jews….er…Libertarians…they are coming after. The rest of us are safe.
+1
Doesn't that mean you couldn't flip anyone the bird?
Thanks.
I hope so.
Has anyone ever actually fed anyone else into a wood chipper - or is that just the best known scene from the movie Fargo? Citing over-the-top cinematic killings is not a serious threat.
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Well said.
Good catch!
Foul...
Helena Kraft (sp?) was. Lake Zoar in Connecticut. Her husband (ex?) did a really thorough job, took several mistrials to convict him.
http://en.wikipedia.org/wiki/Murder_of_Helle_Crafts#In_popular_culture
Hah! I didn’t know Fargo was inspired by real events ... and I’ll bet those Reason posters didn’t either. I still say it’s not a serious threat.
To add, all they apparantly found of Kraft was part of a finger.
The joke at the time was “Why did Richard Kraft feed Helana through the woodchipper feet first”? “So he could see the look on her face.”
Although there was never any evidence that she was still alive, let alone conscious, when fed in. Heck, Richard Kraft was so thorough that the rental place’s testimony that they’d never had a woodchipper returned so clean was a major piece of evidence.
The DOJ = Ministry of Truth
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