Reason magazine has been hit with a federal subpoena seeking “any and all identifying information” about comments posted on an online blog discussing the conviction and harsh sentence given to the founder of an online website called Silk Road, where illegal drugs could be bought and sold.
One comment on the blog suggested, “Its (sic) judges like these that should be taken out back and shot.” Another, “Why waste ammunition? Wood chippers get the message across clearly.”
For two weeks the magazine was under a gag order to not discuss the subpoena, but that has been lifted.
“From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting ‘voluntary’ confidentiality,” a recent Reason blog posting states. “Exactly how common is anyone’s guess …”
Excuse me, but Nevadans have been there and done that.
In 2009 in a remarkably similar case the feds issued a sweeping subpoena for information on those who commented on a Las Vegas Review-Journal story about the trial of Las Vegan Robert Kahre, who was charged with tax fraud for using the rather inventive argument that he could pay people in U.S. minted gold and silver coins based on their precious metal value but for tax purposes use their face value, which is many times less.
One online commenter called jury members “12 dummies” and said they “should be hung” if they convicted Kahre.
Another called the federal prosecutor “evil incarnate and everything that is against the American justice system.”
The newspaper was served with a subpoena from the U.S. attorney’s office demanding that the paper turn over all records pertaining to those postings, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers … the IP address,” etc. There was no indication what they were looking for or what crime, if any, was being investigated, just a blanket subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case.
As editor of the paper at the time my instinct was to fight the subpoena tooth and nail. Instead the paper convinced the prosecutors to narrow their search to a couple of comments. Of course, the paper only had an email and name for each comment, both of which could be fictitious and most were.
But the American Civil Liberties Union vowed to fight on, believing a chilling effect remained. ACLU attorney Margaret McLetchie sought a court order declaring the original subpoena unconstitutional. She said the ACLU had filed on behalf of three clients, who posted anonymously on the newspaper website. They remained anonymous during the legal action.
“The right to speak anonymously about politics is older than the Constitution,” McLetchie said at the time.
At one point I asked readers what they would do if confronted with such a subpoena.
The readers were quite brave with my company’s money and my freedom. Nearly 700 people voted. Of those, 51 percent bravely said they would have fought to the highest court in the land even if they (meaning I) landed in jail. Only 16 percent said they would immediately turnover what the feds were asking for, while 33 percent said they would surrender information only on those who clearly made threats or admitted criminal acts.
“For many people now and in the future, this is not academic. What will happen when a friendly federal investigator visits your employer asking about what you’ve been posting online?” I wrote then.
All of the comments on the Reason site and the newspaper site were cliches of outrage and mere hyperbole, which are protected free speech rights.
In 1969, the U.S. Supreme Court threw out a case against a man who while protesting the draft had stated that if he were made to carry a rifle “the first man I want to get in my sights is L.B.J.” The court called this “crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President …”
Why the feds continue to pursue such matters is a mystery, but they do.
In December 2010, the 9th Circuit Court of Appeals affirmed federal Judge Kent J. Dawson’s ruling that the claims of those persons who had been subpoenaed were moot because the subpoenas were no longer in effect. The feds made everyone scramble, but then just slithered away.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.