Of Course: DOJ Using Subpoena to Compel Reason.com to Disclose Information About Its Anonymous Commenters

... who made alleged "threats" (of the "tar, feathers, some assembly required" sort) about the judge in the Silk Road case. Per that second link, the Silk Road case was about the prosecution of the Silk Road website founder; "Ross 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 (along with just about everything else)."

Are the Reason.com Comments "True Threats?" No. NO. AND HELL NO!

"True Threats" are those threats that are outside the protection of the First Amendment; they are not mere political hyperbole or bluster. For instance, in 1967, when Mr. Watts said that if he were drafted the first man he'd want in his rifle sights was President Lyndon B. Johnson, that wasn't a true threat: it was conditional political hyperbole. In other words, it was mere angry bluster of the sort no reasonable person would take to be a serious threat.3

What of these comments on Reason.com, then? I submit that they are very clearly not true threats --that this is not even a close call.

True threat analysis always examines context. Here, the context strongly weighs in favor of hyperbole...

....

Consider this purported "threat":

Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.

Is it the position of the U.S. Attorney's Office for the Southern District of New York that a reasonable reader would conclude that "Rhywun" is in league with the Dark Ones, able to bring into existence a hot place in the afterlife for an errant judge? Ridiculous. If that's a threat, then so is "go to Hell."

So: the government has used the grand jury to subpoena a news magazine for the identity of anonymous commenters who have engaged in political rhetoric that is clearly protected by the First Amendment.

Can they get away with this?

The answer, alas, is "probably yes," because the government has All the Power. But you'll have to go to Popehat for that.

And speaking of the government having All the Power: Denny Hastert is being arraigned to day for withdrawing his own money to pay someone off and then lying to the FBI about that which they had no right to ask in the first place.

posted by Ace at 01:40 PM

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