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June 10 2015

First Amendment Outrage: Prosecutors Subpoena Reason Magazine for Commenters' Identities

Charlotte Allen

Let me go on record: I am not a libertarian.

I think it's fine for democratic societies to set up rules that bar people from engaging in activities that make life unpleasant-to-miserable for other people, even if no direct physical harm ensues. This is why I is why I don't believe in drug legalization. I don't want to live around tokers, sniffers, shooters, coke-blowers, or dealers--and if I had children, that would go double in spades. I think that drug overdoses aren't just tragedies for the overdosers themselves, but for the people who care about and love them.

So count me out from shedding a single tear over the jury verdict that found Silk Road operator Ross Ulbricht guilty in March (after only three hours of deliberation) on seven federal felony drug-trafficking and money-laundering counts. Silk Road was a $1.2 billion "dark web" operation that, according to reports, made Ulbricht and others rich to the tune of $79 million in commissions. Some 70 percent of Silk Road transactions were illegal drug deals--and the rest involved fake passports and drivers' licenses, as well as the services of hit men and forgers. The fact that Ulbricht is good-looking, young (but at age 30, old enough to know better), an Ivy League graduate, and an apparently charismatic figure with a raft of fans (including--surprise!--his mother) who regard him as a war-on-drugs political prisoner doesn't stir my heart. His defense--that he wasn't actually the "Dread Pirate Roberts" mastermind who ran the site--struck me as laughably unconvincing. The life prison sentence that U.S. District Judge Katherine Forrest handed down on May 29 may well have been excessive (Ulbricht is appealing), but the testimony of the parents of the six addicts who had died of overdoses of Silk Road drugs might have had something to do with that. As well as the prosecutors' allegations--supported by evidence from Ulbricht's computers--that he had paid $750,000 to have five people killed (the hits never occurred, and Ulbricht wasn't prosecuted for those alleged offenses).

Still, there is one kind of government involvement in the Ulbricht case that is absolutely reprehensible: threatening and punishing people for merely expressing their support for Ulbricht and outrage at his sentencing. And this has happened: the U.S. Attorney's office for the Southern District of New York (that's Manhattan) has subpoenaed the offices of the libertarian web publication Reason seeking information about some pseudonymous commenters who made some nasty comments about Forrester appended to an opinion piece by Reason editor Nick Gillespie protesting Ulbricht's sentence.

Reason, like the rest of Ulbricht's fan base, lauds him as a hero of free enterprise who made drug-dealing "safer" (Gillespie's word)--because addicts didn't have to visit dicey neighborhoods to satisfy their joneses. Gillespie described as "haunting" (I'd use the word "self-serving" myself) an unctuous pre-sententencing letter that Ulbricht wrote to Forrester: "Silk Road was supposed to be about giving people to make their own choices, to pursue their own happiness, however they individually saw fit."

Then the commenters got to work. "It's judges like these who should be taken out back and shot," wrote one of them. "Why waste Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first,” wrote another, who called himself "croaker." Croaker was so enamored of his wood chipper idea that he repeated it a few comments down. Since Forrester is a woman, the c-word got tossed around quite a bit.

This was nasty stuff (Reason has since deleted those and other comments)--although it's fairly par for the course on the Internet, where rude people get to hide behind pseudonyms and there are no "fit to print" censors to keep foul language and even fouler fantasies off the screen. But no reasonable person could possibly construe them as actual threats to Forrester. As the lawyer-blogger Popehat writes:

True threat analysis always examines context. Here, the context strongly weighs in favor of hyperbole. The comments are on the Internet,  a wretched hive of scum, villainy, and gaseous smack talk.They are on a political blog, about a judicial-political story; such stories are widely known to draw such bluster. They are specifically at Reason.com, a site with excellent content but cursed with a group of commenters who think such trash talk is amusing.

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.

Now, Reason is going to have to spend money to hire lawyers to try to get those subpoenas quashed. That's unjust. Again, I'm not a libertarian--but there's one libertarian idea that's sacrosanct to me: freedom of speech and the press. It was also sacrosanct to the Founding Fathers, which is why theymade it part of the First Amendment.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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