The Department of Justice is demanding that Reason.com turn over “any and all identifying information” for six of its commenters, according to the legal blog Popehat. The demand came in the form of a subpoena related to a grand jury investigation of threats made against Katherine Forrest, the federal judge who recently sentenced Silk Road founder Ross Ulbricht to life in prison.
“Its judges like these that should be taken out back and shot,” wrote commenter AgammamonI5.31.15.
“Why waste ammunition?” added commenter croakerI6.1.15. “Wood chippers get the message across clearly. Especially if you feed them in feet first.”
In all fairness to the DOJ, the judge in the case has already been the victim of a credible death threat, and her personal information has been posted online. But threatening to feed someone through a wood chipper certainly sounds like hyperbole. And one of the commenters named in the subpoena simply wished for the judge to go to hell. If telling people to go to hell via the Internet is a crime, I should have gotten the chair years ago.
Still, I’m not a legal expert. Luckily, Ken White of Popehat is. In fact, he’s a former federal prosecutor.
“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.
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.
Commenters should absolutely have the right to make idiotic comments online because this is America, and that’s what we do, but it is now clear that the federal government believes that it reserves the right to find you and turn your life upside down (or worse) in response, so dispense your Haterade with caution.
Then again, I’ve been told the Supreme Court has roundly rejected prior restraint, so what do I know?