Civil Liberties

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. |||

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?