Confirmed: DOJ Obtained Gag Order To Keep Reason From Informing Affected Commenters Or Discussing Subpoena

Free Speech

from the we'll-teach-you-not-to-comply-with-our-voluntary-stipulations dept

A DOJ subpoena leaked to Ken “Popehat” White showed the government was more than willing to stomp all over free speech to “protect” unthreatened federal judges. The order targeted comments at Reason.com that — while inflammatory and ugly — were decidedly not “true threats.” Even if one was inclined to believe Reason commenters were going to hunt down the judge who presided over the Dread Pirate Roberts trial and use bullets/woodchippers to make her “pay” for her heavy-handed sentence, there was no non-ridiculous way to perceive someone saying “there’s a special place in hell” for Judge Katherine Forrest as somehow being a “true threat.”

While White (and many others) commented on the subpoena, Reason itself remained quiet on the matter, outside of a short post asking commenters to refrain from commenting at Reason on the “subject matter” of Popehat’s post. About 10 days later, White speculated that there could be a gag order in place, citing a couple of anonymous tipsters, as well as his own conclusions drawn from the available evidence.

The existence of a gag order would be an active effort on the part of the government to chill speech at Reason, preventing it from discussing the subpoena it had received as well as encouraging it to extend this chilling effect to its commenters — which it did.

No more speculation is needed. Reason did indeed receive a gag order related to the DOJ’s subpoena.

For the past two weeks, Reason, a magazine dedicated to “Free Minds and Free Markets,” has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.

That gag order has now been lifted. Reason’s attorney discussed the matter with the Attorney General’s office, pointing out the obvious fact that the subpoena and the comments it targeted were public knowledge, thanks to Popehat’s post.

As ridiculous as the subpoena and the circumstances surrounding it were, Reason still felt compelled to maintain silence while the gag order was in effect. Reason’s Nick Gillespie and Matt Welch note that the subpoena originally appeared without an accompanying gag order. Instead, it only contained a request that the contents of the order not be shared with anyone.

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the con?dentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

Moreover, if you intend to disclose the existence of this subpoena to a third party, please let me know before making any such disclosure.

After a discussion with the Assistant US Attorney General, Reason notified the commenters affected, thus allowing them to retain counsel if they wished to assert their First Amendment right to anonymity.

At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked [AUSA Niketh] Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, “No.” Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was “coming close” to interfering with the grand jury investigation.

After this call, Reason notified the commenters. Six hours later, the gag order arrived, accompanied by an email and another phone call that saw Velamoor follow up his inability to recognize free speech protections with bogus accusations of criminal behavior.

Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters’ constitutional rights and laying out the timeline of Reason’s notification to them. Velamoor told her that he now had “preliminary information” suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was “looking into it further.”

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney’s office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.

The accusations weren’t the only vague part of this debacle. The gag order itself is straight boilerplate, which suggests the DOJ hasn’t dug very deeply into the situation it’s issuing court orders for. The opening paragraph is nothing more than a list of possible reasons for obtaining a gag order, none of which fit this specific situation.

The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.

Not a single one of these potential scenarios fits “overzealous investigation of normal internet comment thread hyperbole,” but then, of course, no subpoena/gag order boilerplate ever would. Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it’s a grand jury subpoena, and grand juries aren’t exactly known for their thoughtful decisions or balanced presentations of evidence.

As the Reason writers point out, the site’s comment thread is often a profane and highly-offensive battleground:

Reason’s unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread).

As ugly as it is, it’s free speech, it’s protected and it’s to be celebrated, rather than chilled into a pale shadow of its former self. When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic “discussion” native to the internet, it does harm to the First Amendment it’s supposed to be protecting.

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.

Normally, I would say something like, “One hopes this will be tossed as soon as a judge reads the complaint,” but it’s a grand jury handling this, so those deciding whether or not probable cause exists to hand out indictments likely won’t have the legal background nor the inclination to go against the prosecutor. Instead, they’ll be given a narrative by the prosecutor and a list of recommended charges. Once those charged face a judge, they may find the indictments tossed, but that’s a long, dark road to travel just for talking about bullets, woodchippers and hell’s special places in a comment thread.

Filed Under: commenters, doj, gag order, niketh velamoor, reason, subpoena
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