DOJ subpoenas identities of online commenters for ‘threats’ against judge

Reuters / Tim Wimborne
The Department of Justice issued a grand jury subpoena to the leading libertarian magazine Reason for the identities of anonymous commenters on an online article that they published about the controversial Silk Road court case.

The article, which was published on May 31, commented on the life sentence handed down to Ross Ulbricht, who was convicted of running the online drug market Silk Road.

“Ulbricht will spend the rest of his life in jail for creating a revolutionary website that made it easier and safer to buy and sell illegal drugs,” wrote Nick Gillespie, author of the article and editor-in-chief of Reason Magazine.

The severity of the punishment shocked a number of members of the public, including the libertarian-leaning audience of Reason.

“Its judges like these that should be taken out back and shot,” a commenter going by the name of Agammamon wrote.

“It's judges like these that will be taken out back and shot,” another corrected him.

“Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first,” a third added.

READ MORE: Are online death threats free speech? Supreme Court hears arguments

The comments can no longer be seen on a live version of the article, indicating that they were probably removed by moderators. However, they can be found in the subpoena, which was passed to the lawyer and law blogger at Popehat.com Ken White on the by an anonymous source.

The subpoena outlines several of these comments and a number of others, which were equally vitriolic, while also commanding Reason to appear before a grand jury on June 9 in New York City.

They were hand over the commenters’ IP addresses, names, account information, addresses, billing information and associated devices connected to the users in regard to 18 USC 875, a statute concerning interstate threats.

White said that these sorts of comments should not be considered true threats under law, rather, they should fall under “political hyperbole.”

“The ‘threats’ do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about ‘wood chippers’ and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent.”

The difference between a true threat and protected speech isn’t always clear. In 1969, the Supreme Court ruled on the Watts v. United States case, which concerned a young man facing the draft for the Vietnam War. He said, “I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J."

The man was prosecuted for threatening the President, but the Supreme Court reversed the conviction, stating that they “agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.”

Unfortunately, this ruling did not entirely resolve the blurry definition of what a true threat is. On June 1, the Supreme Court decided Elonis v. United States, a case where a man was convicted of threatening someone over interstate lines – thus falling under 18 USC 875 just like the Reason.com commenters – by way of Facebook posts. The man posted rap lyrics, which were violent in nature and concerned his wife, the local police and a kindergarten class. His earlier conviction was reversed by a 7-2 decision of the Supreme Court.

On June 8, Nick Gillespie wrote a short blog post asking Reason commenters to "refrain from any discussion of the subject of the article at Popehat.com and its contents on our site."