Silk Road

Critics on Reason's Gag Order: 'This can have a horrific chilling effect on free speech'

Other adjectives include 'irresponsible,' 'heavy-handed,' 'bullying'

|

The reviews aren't positive. ||| BusinessInsider.com
BusinessInsider.com

University of Tennessee law professor Glenn "Instapundit" Reynolds is not the only analyst to weigh in very critically on the federal government's crackdown on Reason's free speech. U.S. Attorney Preet Bharara and Assistant U.S. Attorney Niketh Velamoor of the Southern District of New York have come under sharp criticism from across the political spectrum. A sampling, starting with the writer has done the most to keep this topic alive during the period when our speech here was stifled:

Ken White, Popehat (in an excellent piece that contains quotes from Nick Gillespie and Reason Publisher Mike Alissi):

So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power. […]

Throughout this story some people have suggested that there may be hidden facts, unknown complications, that justify the government's conduct. Now that Reason's journalists can speak, we can see that there's no there there.

Scott Greenfield, Simple Justice:

The United States Attorney's office for the Southern District of New York handles some very serious stuff, and has some of the smartest, toughest prosecutors I've ever fought with.  They are every bit as good as they think they are. But Niketh Velamoor brought humiliation down on the office.

This was an exercise in ridiculousness, and Niketh's contribution was to make his office look as petty, irresponsible, over-bearing and full of shit as any AUSA could possibly do. As Preet Bharara takes down the leaders in Albany for failing to give the public their honest services, he should spend a little time looking in his own backyard for how some of his assistants aren't doing any better.

Roger Kimball, PJ Media:

[T]he US government's heavy-handed attack against Reason was disproportionate and ill-conceived.

Tim Cushing, TechDirt:

Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it's a grand jury subpoena, and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence. […]

When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic "discussion" native to the internet, it does harm to the First Amendment it's supposed to be protecting.

Paul Alan Levy, Public Citizen:

(Sidenote– the AUSA sent the gag order with a cover letter directly to Reason's editor even though he knew that Reason was represented by counsel.  Query whether this letter violated the ethical rules governing contact by counsel with a party represented by counsel  – certainly to me this is typical of arrogance from a high-powered office, some of whose lawyers consider themselves so elite as to be less bound by the ethical rules that govern other lawyers). […]

Should we be content with the precedent set for free speech because passionate journalism succeeded in getting this gag order set aside?  Or should we try to learn from this experience through a thorough investigation of the precise reasons why the US Attorney's office believed that it was necessary to curb public disclosure of the grand jury subpoena.  Does that office, or does the Justice Department generally, have any guidelines governing applications for gag orders of this sort?  Are [there] any guidelines about the circumstances under which it is appropriate for AUSA's to throw their weight around by threatening to investigate subpoena recipients for interfering with a criminal investigation (thus securing an informal gag order through intimidation)?  Should there be such guidelines?  If there are guidelines, did the AUSA in this case follow them (and does that mean that the guidelines need to be tightened)?  This might well be an apt subject for investigation by a congressional government oversight committee or judiciary committee.

Jaime Lopez, The Costa Rica Star:

Why are the United States and Nicaragua, two constitutional republics where press freedom is supposed to play a major part of the democratic process, attempting to silence journalists?

John Hayward, Breitbart News:

As author Mark Steyn, embroiled in his own ridiculous Kafka nightmare in defense of his free speech rights, has observed: "The process is the punishment."  The Reason authors point out that fighting the government in a situation like this can be enormously expensive and time-consuming.  There is virtually no way to "quash" such a flimsy investigation at the outset; once the government pulls you into its legal roller coaster, you have to take the ride.  Conversely, Gillespie and Welch wonder how much time and money government investigators are pumping into wumpus hunts for online trolls, when there are more important things they ought to be doing.

This can have a horrific chilling effect on free speech, as both publishers and individuals live in fear of being targeted for what they say… and not even knowing they have been targeted until the investigation is well under way.  The expense of fighting back is prohibitive, so it's better to just clam up.  The danger that publications can be slammed up against the lockers by officials, and forced to divulge information about readers who wish to remain anonymous, could ultimately spell the end of such open comment forums.  It also provides an avenue for sabotage by ideological opponents of a publication, or non-ideological mischief makers. […]

Liberty isn't always seized in grand, breathtaking strokes.  It can be nibbled away at the margins, by making nominal rights that remain enshrined in the Constitution very difficult, or expensive, for citizens to exercise in practice.

Mark Home, Political Outcast:

It is pretty clear to me that we are basically now two different social and legal orders in a power conflict. Government attorneys are continually looking for ways to gain precedents that give them more power to punish speech or are using the investigative process itself to harass and intimidate speakers. How long before we reach the tipping point that enough judges will go along with their power grab?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

107 responses to “Critics on Reason's Gag Order: 'This can have a horrific chilling effect on free speech'

  1. Oh hey, cool, we can talk about the war now?

    1. We can talk about it.

      Popehat wins for the #TeamWoodchipper tag on his article.

      1. Popehat is so awesome.

        1. Come now, the menacing statements posted on Reason were not mere “hyperbole” as suggested by Popehat and Cushing, any more than the criminally deceitful emails sent by a “satirist” in New York were mere poor efforts at parody or blustery expressions of anger. At the very least, it is for a jury to decide with what intent those statements were made. See the documentation of America’s leading criminal satire case at:

          http://raphaelgolbtrial.wordpress.com/

          True, Scott Greenfield did foolishly criticize New York’s excellent efforts to criminalize inappropriately deadpan parody and sock-puppetry, but I believe it is worth reminding the other “freedom of speech” bloggers like Popehat and the others listed here (Eugene Volokh in particular comes to mind, although he is apparently too “conservative” even to have spoken out about the Reason subpoena) that when we don’t stand up for everyone’s “rights,” we should not be surprised when our own rights end up getting trampled on with nice black boots.

      2. The last part of his article was absolutely wonderful.

        1. The last few paragraphs were golden. The picture, with the associated subtext, was even better.

          1. Reason commenters are still rather put out that we spoke ill of them. Now that this is wrapping up I should make amends, with a nice lunch or a fruit basket or goat porn or a cockpunch or whatever.

            I…I…love you, Ken.

            1. Cockpunches for some, miniature American flags for others!

          2. Yeah, that was pretty awesome:)

      3. Agreed.

  2. Good to see the Costa Rica Star is on it.

    1. Expect a lot more coverage from foreign press than from domestic proggie press, who at this point are more likely to renounce critical theory and disparate impact than go to the mat defending the speech rights of those godforsaken libertarians. Their dream is Somalia!

    2. Nice to know that’s an option. Costa Rica is nice

  3. The only thing I can think of to slow this down is to make a penalty to the government for subpoenas. Every time they request information from you they are required to pay your. If their orders require you to do something that goes against your stated policies, even more money must be paid. If they require you to violate a contract, tack on even more cash. And all this money must come from the budget of the office making the request.

    Once their precious budget it touched you’ll see a lot less frivolous/intimidating requests.

    1. How about intead of the budget, the lawyer has to pay personally, then request reimbursement. If an indepenant auditer decides that the investigation was unwarranted, no moeny back from the budget.

      1. How about this, the money goes into Escrow.

        If the investigation results in a criminal conviction the government lawyer/department gets it back, if not it goes to the target.

  4. From the Popehat write-up:

    Reason’s attorney, Gayle Sproul, called Velamoor, told him that she represented Reason, and tried fruitlessly to reason with him. Velamoor blustered, then sought and obtained a gag order. But he didn’t send it to Reason’s attorney, with whom he had spoken only hours before. Instead, he sent it directly to Alissi, Reason’s publisher:

    Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney.

    Niketh Velamoor is a goon hiding behind a badge. That he went to Harvard simply makes him an unusually snobby goon hiding behind a badge.

    This cannot be emphasized enough. Such blatantly unethical behavior should result in censure and disbarment.

    Everyone needs to know what a scumbag Velamoor is based on how he tried to bully Alissi and Reason.

    1. Niketh Velamoor needs to be taken out back and given a stern talking-to.

      Next time he eats pizza, i hope he burns the roof of his mouth and it makes everything he eats taste weird for the rest of the week.

      1. Oh yeah? Well I hope the next time he is handling a sheaf of paper he gets a nasty paper cut, and then accidentally spills lemon juice on it. And also that his Xbox 360 gets the Red Rings of Death.

        1. I hope all his Gilmore Girls dvds get irreparably scratched, and he stubs his toe pretty bad!

        2. I hope his doctor tells him he needs to lose weight in kind of a mean way!

      2. May Niketh Velamoor fall down the stairs. May he contract MRSA. May his dog leave a big watery poop on his bedroom floor and may he step in it when he gets up to pee at 4AM. May he forget to renew his car registration and get a ticket. May he get a kidney stone. Amen.

      3. My only hope is that all of Bharaha’s and Velamoor’s children grow up to hate and disown them, as they rightly should.

    2. Such blatantly unethical behavior should result in censure and disbarment.

      But it will be rewarded with a promotion. His boss is as much a grandstanding thug as Velamoor is.

    3. Such blatantly unethical behavior should result in censure and disbarment.

      I’ll take bets that there will be absolutely no penalty, even a symbolic one. Different rules for the Masters.

    4. I work in a lawfirm and if I sent a subpoena directly to the client of another attorney, my boss would fire me immediately. That’s unbelievable. I can’t believe they’d send a gag order directly to Reason when they knew Reason was being represented by counsel.

    5. Sounds like he’s going to have a hard drive crash in the near future.

  5. “Preet Bharara”

    I would simply like to point out that “Preet” rhymes with “bleet”.

    http://westernschooloffengshui…..dorbit.jpg

    1. Oh, I guess it’s spelled “bleat”.

      1. No, it’s spelled “Preek”.

    2. Preet is usually a short form of the name Preetinder.

      1. You know what else produces tinder?

        1. Hitler?

      2. I did not know that. BTW, is that a great sheep pic or what?

      3. Pre-tinder, sounds like what you would call the wood you’re about to feed into…

        Nope, you’re not gonna get me. I’m sure he’s a stand-up guy who regularly pleasures his wife with his giant penis.

      4. I saw the Pretenders in the 80’s Great show.

      5. Preet is usually a short form of the name Preetinder.

        Yup, he has Sikh roots like Nikki Haley.

    3. It’s short for Preetinder.

  6. “The process is the punishment.”

    I’m wondering if the true motivation behind this was really just an attempt by prosecutors to get that precedent on chilling anti-government speech or if it was something less big picture. Does someone that US attorney’s office know someone who was personally offended?

  7. Holy crap! Popehat’s article uses album cover art from Gang of Four’s “Entertainment!” Outstanding!!!

    1. I’ll just have to play Damaged Goods. Maybe it’ll teach the younger staff something about music.

  8. Honestly, I’m a little surprised Dr. Paul hasn’t picked up on the issue. This seems like an issue that would be almost tailor-made to make the case for libertarian stances to the GOP base (a couple of Obama supporters in the U.S. Attorney’s Office going after administration critics).

    1. Seems like the larger media outlets aren’t doing much with the story, either.

      1. But, that doesn’t really surprise me. They’re largely invested in the current administration.

      2. But, that doesn’t really surprise me. They’re largely invested in the current administration.

        1. I think it has as much to do with the prejudice they have against libertarians as anything else. “Oh, those guys probably are racist militiamen who need rounding up.”

          1. “A bunch of teenagers who haven’t outgrown ‘Atlas Shrugged’, that’s all.”

            1. Exactly, though you left out “racist.”

              1. Yeah – I stipulate “racist”

      3. Fox News gave it some coverage, but that’s probably just because libertarians are really just right-wingers.

  9. I always get annoyed by the practice of referring to the plaintiff as “the government” while the judge is referred to as something separate from the government. “The government made the case to the judge that blah blah blah…” or “The Judge asked the government to provide X, Y and Z”. The judge is the government, the prosecutor is the government, the police officer is the government, the garbage man is the government. They all play for the same damn team, let’s not pretend they don’t.

    1. My garbage man is an independant company that picks up the dumpster.

      1. Check your free(ish) market privilege

  10. Breaking news: U.S. attorneys Preet Bharara and Niketh Velamoor revealed to have no clothing after all.

    I wonder whether they’ll double up on the embarrassment with a little helicopter show while continuing to insist they’re clothed in suits of the finest cloth.

  11. Is Preet Bharara on Twitter? It’d be entertaining to start spamming him with these articles? If you’re reading this, Preet: go fuck yourself.

    1. Um, delete that second question mark. I swear I don’t talk like a Valley Girl.

      1. I swear I don’t talk like a Valley Girl.

        No, you talk like a certain Judge N.

        1. What would the world be like if everyone talked like Judge N? How would we know? What if everyone had a wood chipper? What if everyone used their wood chipper as intended? What if the government was not able to prohibit citizens from only having smaller wood chippers than the government? What is the difference between a grape?

  12. Good luck to reason and the [redacted] 6. I am glad to see this fight getting some daylight. I hope you pursue any counter-complaints you can.

  13. Also, how much of a fucking idiot is Niketh Velamoor? They sent Reason the subpoena, Reason forwarded that subpoena to the commenters, Velamoor then issued a gag order AFTER REASON HAD THE OPPORTUNITY TO INFORM PEOPLE OF THE SUBPOENA. Then, one of the commenters who was never under any sort of gag order apparently forwarded the subpoena to Popehat, at which time Velamoor started assuming someone at Reason had violated the order, even though there’d been time before the order was issued for them to inform people of the subpoena.

    Preet Bharara’s DA office must look like the last 10 minutes of a Three Stooges movie.

    1. “Preet Bharara’s DA office must look like the last 10 minutes of a Three Stooges movie.”

      Nah, the Three Stooges were funny, these people are just incompetent assholes.

    2. Velamoor then issued a gag order AFTER REASON HAD THE OPPORTUNITY TO INFORM PEOPLE OF THE SUBPOENA

      Gag on this, Niketh Velamoor!

    3. Keystone Kops.

  14. And with that, United States Magistrate Judge Frank Maas ordered that American journalists could not report on a government abuse of power for 180 days.

    This was not a review by a neutral judicial officer; it was a rubber stamp, obediently regurgitating back the statutory factors without reflection or any finding of fact.

    You can buy a rubber stamp for five bucks. Your tax dollars rent a Magistrate’s rubber stamp at a hundred fifty thousand a year.

    Pure venality on display at the Southern District of NY.

  15. As a side note, I’d ask, beyond Paul Alan Levy, is there anyone left of center who’s been taking up this cause. I’m looking at the list here and virtually everyone except him are regarded as either conservative or at least apolitical.

    I don’t get it. I keep hearing that conservatives and progressives are equally bad. But, conservatives are especially bad on civil liberties. I keep hearing there’s wide swaths where libertarians and progressives share common values. Surely, there’s a bunch of progressives lining up to defend free speech at Reason, right?

    1. Then again, uber-conservative Jazz Shaw outright argued that it was okay for Reason to be subpoenaed because one of the commenters might actually have a woodchipper and HOW DO YOU KNOW THEY WON’T USE IT!?!?!

      So the worst take on this also came from a conservative. Make of that what you will.

      1. Fair enough.

        What I’ll make of it, personally, is that there’s a war within conservatism between those supportive of liberty and those actively hostile to it. Progressives uniformly don’t give a shit about freedom.

      2. It amazes me how quickly conservatives cashier whatever civil liberty credentials they might earn in defense of speech or consciousness when the subject of law enforcement and drug use come up. I have no idea who Shaw is, but I’d guess cops and courts are for him a touchy topic.

        1. It amazes me how quickly conservatives cashier whatever civil liberty credentials they might earn in defense of speech or consciousness when the subject of law enforcement and drug use come up…

          Yeah, except for Reynolds. And White. Oh, and Greenfield. Let’s not forget Kimball. And Heyward….

          1. *some* conservatives. I ran afoul of the point of the subthread.

      3. My take is that conservatives are always glad to have our votes but don’t want to be associated with us. They’re trying to carefully triangulate on some some race issues and their strategy is not compatible with the freedom of speech and -association views held by most libertarians.

        1. Again, though, look at the list of people arguing for Reason. It isn’t progressives. The bulk of the support is coming from people who would be considered conservative.

          1. The people who support us tend to be conservatives of the moderate or libertarian-leaning sorts. I’d never heard of that Jazz Shaw person before now, but Irish describes him as ultra-conservative which I’m guessing means socon?

        2. The Conservative commenters at Instapundit weren’t triangulating anything. It was full blown support all the way down except for one commenter who had a bug up his ass with Reason in general and found himself pretty much lambasted by the rest of us. I don’t read Shaw because I find him a bit boring so I haven’t a clue what his problem is.

    2. Does the guy who played Garabaldi on Babylon 5 count?

    3. for progressives the only free speech is that which advances progressive causes. everything else should be banned

  16. What can we – as H&R regulars – do for future and present events? I know there are a number of lawyers on this site. If commentators couldn’t be punished by legal fees, then threats like this get diminished. We could crowd source the funding if pro bono services aren’t available – and I don’t expect every lawyer to work for free.

    And if we’re just Koch Brothers plants, why aren’t they stepping up? 😉

    1. Agammonon has a go fund me account but he isn’t soliciting donations unless he has legal bills.

    2. The excellent Mr. Ken White of Popehat extended an offer of pro bono representation should anyone receive a knock on his/her door.

  17. My brother has a mug for The Walking Dead that says “If Daryl Dies We Riot.”

    Question: Does Preet Bharara consider this to be a true threat and can I expect a subpoena?

  18. “The process is the punishment”. That pretty much says it all. And effectively sums up our federal government.

  19. I liked the footnote: “Reason commenters are still rather put out that we spoke ill of them. Now that this is wrapping up I should make amends, with a nice lunch or a fruit basket or goat porn or a cockpunch or whatever. ?”

    1. We demand, of course, a shrubbery. One that looks nice. And not too expensive.

      1. ^This. But a mechanically deconstructed shrubbery would be just as good as a whole, live one. Also, kudos to Ken at Popehat for the picture of “the libertarian wood-chipper of doom.” That’s a taunt worthy of the best of us here.

        1. Govt Stooges: “Is there someone else in there we can talk to??”

          Popehat: “No! Now go away, or I shall taunt you a SECOND time!”

      2. Oh, what sad times are these when passing ruffians can say Ni at will to old ladies. There is a pestilence upon this land, nothing is sacred. Even those who arrange and design shrubberies are under considerable economic stress in this period in history.

        1. I think we all know who the people saying “ni” are in this analogy. For shame.

    2. Where was the footnote, cuz that’s awesome.

      1. I’ll tell you, but it may come as a surprise…

      2. At the bottom, aka the foot, of the article.

        1. I had to click the link?!? But I’m so lazy.

  20. You know who else used government power to silence opponents….

    1. Organized crime?

    2. John Adams?

    3. Lois Lerner?

  21. It was interesting. I didn’t mind the fact that there was no romantic interest. Gives you more time for action but you more nice video check this way and comment me
    Best Home Deal ?????? http://www.BuzzReport20.com

  22. Let me know when you get quotes from sources with a reputation exceeding WJM-TV News.

    1. Ted Baxter was the one with no credibility, Lou Grant went on to run a newspaper.

  23. Really great to see CAP, ThinkProgress [sic], Mother Jones, Jezebel, Gawker, etc. come out against this government overreach. And here I thought they were intellectually dishonest and unprincipled. Silly me.

  24. I’m very sorry but:

    woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers woodchippers

    * I do not own a woodchipper

  25. When do we get a report on the spike in donations you surely received over the last two weeks?

  26. I got something for preety. https://www.youtube.com/watch?v=laCHYnMq7bc
    BHA RA RA RA RA RA RA

  27. The Simple Justice comment about Velamoor humiliating his office was insightful. But you know who else was humiliated? The entire libertarian movement, by us, the HnR commenters, because we’re terrible.

    1. OMFG, give me a BREAK.

      Vitriolic POLITICAL commentary on a serious and momentous criminal prosecution involving the question what is a just response to a judge openly identifying a criminal defendant’s political opinions as a cause of handing down an outrageous sentence is just sssooooo HUMILIATING AND OUTSIDE THE NORM of our political history.

      Meanwhile, back at the ranch, the NY Times will still run an occasional Op-Ed on the best way to execute George W. Bush…

      and the remaining Americans not yet mentioned are all posting their vaginas on Twitter OR actually threatening to murder New York cops!

      So maybe Preet Bhahaha could find a TRUE THREAT to prosecute, and maybe you could come out of the Gelded Age by reattaching your manhood. The Gals are getting tired of having to stand in and stand up.

Please to post comments

Comments are closed.