The Assault of Free Speech, Judicial Overreach Edition (Part 8796)

The heavy hand of the judiciary, in the form of a subpoena followed by a gag order, descended upon the great Reason magazine early this month.  The story, thankfully, has been widely covered by the alternative internet press (nary a byte, the last time I looked, from such legacy outlets as the New York Times) beginning with the redoubtable and amusingly named Popehat (which also has a roundup here). The background: the U.S. government, in the person of U.S. Attorney Preet Bharara, demanded that Reason magazine turn over all the identifying information they had about six people who left hyperbolic Website comments sparked an online story about the conviction of Silk Road founder Ross Ulbricht. The object of the commentator’s rage was Judge Katherine Forrest, who, going beyond what the prosecutors asked, sentenced Ulbricht to life in prison.

Now Silk Road, a sort of black-market internet emporium where users could get just about anything they wanted, legal or not, was a dubious enterprise. But the US government’s heavy-handed attack against Reason was disproportionate and ill-conceived. The government claimed to be investigating threats against Judge Forest. It was interested, for example, in the identities of the authors of such comments as these:

• “Its (sic) judges like these that should be taken out back and shot.”
• Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.” (Movie buffs will recall a famous scene from Fargo.)
• “I hope there is a special place in hell reserved for that horrible woman.”
•  “I’d prefer a hellish place on Earth be reserved for her as well.”

What do you think, Dear Reader, threats? Or typical, if juvenile, letting off of steam on the internet?  I think it’s clearly the latter. And what bothers me much more than such over-the-top comments is the display of naked coercion on the part of the government.

Having been served with a gag order, prohibiting its editors from speaking about or even publicly acknowledging the subpoena, Reason only Thursday managed to get the order lifted.  Yesterday the magazine’s editors Nick Gillespie and Matt Welch published a long and disturbing piece on the episode under the title “How Government Stifled Reason’s Free Speech.” It is very much worth reading. “Reason’s experience needs to be understood in a larger context,” they write.

Especially since the 9/11 attacks, there has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands–often under threat of punishment–for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.

After reading that post, you will have better reason for surmising that the answer is “not really free at all.”  Gillespie and Welch end with this sobering observation: “To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already.” That’s the grim part. And we see it in operation all over this fruited plain.  The silver lining is in their concluding sentence: “As we gather and publish more information on just how often this sort of thing happens, we pledge to always be on the side of more speech rather than less.”  Hurrah for Reason!