The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ken White of Popehat has an interesting analysis of a troubling Department of Justice effort to use a grand jury subpoena to reveal the identities of anonymous blog post commenters at Reason.com, a prominent libertarian website:
The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution. DOJ is targeting Reason.com, a leading libertarian website whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.
Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?
Because these twerps mouthed off about a judge.
The commenters were opining on a post by Reason editor-in-chief Nick Gillespie, expressing their ire at the federal district judge who sentenced Silk Road founder Ross Ulbricht. The rationale for the subpoena is that the commenters may have been transmitting "true threats" in "interstate or foreign commerce" in violation of this federal statute.
For reasons White explains, the comments almost certainly do not qualify as "true threats" against the judge. They are, rather, the kind of nasty and stupid vitriol that is all too common in anonymous comments on the internet. For example, one of the commenters wrote that "judges like these… should be taken out back and shot," another opined that "I hope there is a special place in hell reserved for that horrible woman," and a third replied that "I'd prefer a hellish place on Earth be reserved for her as well."
Nasty stuff, indeed. To put it mildly, comments such as these are hardly valuable contributions to public discourse. But if federal prosecutors investigated every similar anonymous comment on the internet, we could probably devote the entire federal budget to hunting down these types of blogosphere trolls, and still not find them all.
White also notes that, under current judicial precedent, federal prosecutors likely have the authority to seek a subpoena in cases like this. But even if this practice is legally permissible, it is still ill-advised. In addition to wasting substantial resources that could better be devoted to investigating real crimes, it is unlikely that this power will be used in an even-handed way:
[T]he government won't start issuing grand jury subpoenas every time someone writes "my husband left underwear on the bathroom floor again; I could just kill him." But they won't because they don't have the time, inclination, or the resources.
Instead, they will use their discretion to decide when to bring their vast power into play to pierce the anonymity of internet assholes (or for that matter, people who may have valid points on political matters but express them in the wrong fashion). That discretion is much more likely to be exercised where, as here, the person being trash-talked is a powerful federal judge in the district of that U.S. Attorney's Office, a judge that the office must appear before every damned day. The power is more likely to be exercised on behalf of establishment political figures, not outsiders. The power is more likely to be exercised when it is consistent with the politics of the administration.
Even if the subpoenas don't result in the filing of any charges, they can still impose substantial costs on their targets, and create a chilling effect on political speech. And, as White correctly emphasizes, they can potentially be used to target political speech that is not as ridiculous as these particular comments were, and may even makes some valid points.
As a longtime blogger, I have great sympathy for people who get attacked in nasty ways by obnoxious anonymous commenters. Most of us who write for blogs that are at all prominent have had similar unpleasant experiences. But a grand jury subpoena is not the right way to deal with anonymous internet trolls.
NOTE: I have written articles for Reason.com myself, but not on issues related to the Silk Road case.