How The Story of Reason's Subpoena and Gag Order Went Public

Q&A with Popehat.com's Ken White

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This story was originally published on July 7, 2015. The original writeup is below:

You may have already heard about how the government tried to stifle Reason's free speech.

Federal prosecutors based in New York sent a grand jury subpoena and letter to Reason, commanding editors to hand over the records of six commenters who wrote hyperbolic statements about federal judge Katherine Forrest below a blog post at Reason.com. Forrest sentenced Ross Ulbricht to life in prison without parole for creating the Silk Road website.

Then came a gag order from U.S. District Court, meaning Reason could not write or speak publicly about the subpoena or gag order—even to acknowledge either existed. But between the subpoena being issued and the gag order being issued, one legal blogger managed to figure out what was going on.

"I got an email and I looked at it and I thought wow, this is a federal grand jury subpoena to Reason magazine," says Ken White, a writer at the legal blog Popehat who is himself a former federal prosecutor. White sat down with Reason TV to talk about how he broke the story and what he thinks it means for press freedom and open expression online.

"What's upsetting is that there is no indication whatsoever either that the prosecutor or the judge gave any consideration to the fact that this was being aimed at a reporting organization about a First Amendment issue," says White. What's more, White stresses that the comments named in the subpoena are commonplace for the internet and especially at Reason.com, a site, he notes, "whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery."

The scrutinized comments ranged from taunts such as "I hope there is a special place in hell reserved for that horrible woman" to "Its (sic) judges like these that should be taken out back and shot," but none, say White, come close to qualifying as "true" threats or anything other idle chatter. It remains unclear why the U.S. Attorney's Office was interested in such internet fodder, how often these sorts of subpoenas get sent out to news organizations, and how often they comply. Nevertheless, White points out that federal prosecutors hold an enormous amount of power over human lives and rarely reflect on how they use—and abuse—their position.

"A fish doesn't know that it's in water," says White. "A federal prosecutor doesn't know that they are swimming in power. They could do it, so they did."

Produced by Paul Detrick. Shot by Zach Weissmueller and Justin Monticello.

Approximately 10:03.

Music is "VibeDrive" by Podington Bear, "Atlantis" by Audionautix, "How to Soothe a Digital Watch" by Ergo Phizmiz, and Unerkla?rliche (oder unidentifizierbare) Spiele im Kornfeld" by deef. 

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  1. So about a month ago my mom hired some guy to chop down a dying tree from her front yard. A crew chopped down the tree, but left a bunch of mulch in the front yard. So now I have to shovel that crap on my days off. Fucking wood choppers.

  2. I hope he reads the comments on this because the commentariat is much brighter than the writers at reason.

    I include myself in this, of course.

  3. “What’s upsetting is that there is no indication whatsoever either that the prosecutor or the judge gave any consideration to the fact that this was being aimed at a reporting organization about a First Amendment issue,”
    .
    That’s giving them the benefit of the doubt. It’s purely speculative, of course, to suggest that perhaps they went after Reason not despite the fact that they’re a reporting organization but because they’re a reporting organization. The chilling effect on free speech isn’t necessarily an unintended consequence, but you do have the plausible deniability. (Unless some enterprising lawyer wants to pursue a lawsuit and see if maybe discovery turns up an interesting e-mail or two wherein the plausible deniability goes into the woodchipper.)

    1. What’s upsetting is that there is no indication whatsoever that either the prosecutor or judge can’t see the irony involved or that there isn’t any irony at all and the First Amendment is dead.

    2. Perhaps somebody more knowledgeable than I can comment on whether or not federal attorneys can and do go lone wolf on these sorts of things, but I assume that before the machinery of justice gets cranked up there’s some discussion amongst the office personnel of what’s being fed into the toothy end of beast and I would hope that somebody involved in the discussion might have at least played devil’s advocate and suggested there might be free speech issues here. So how would the First Amendment issue have been resolved? What’s the Latin phrase for “Fuck the First Amendment” and would it show up somewhere in the discovery documents? (I am assuming a high-dollar attorney doesn’t actually say “Fuck the Constitution”, they get the big bucks for knowing the Latin and being able to explain in a 31-page brief why the Constitution was practically begging to get laid.)

      1. Primo Emendatione in irrumabo

      2. The Constitution is simply a roadblock to “get around” when using the force of government to achieve your own personal political ends.

        99.93% are scum. The problem with society is that the citizenry no longer rides corrupt politicians out on a rail.

        (And that’s hyperbole, protected under 1A for anyone that’s confused)

    1. It would prove that god has a sense of humor. After what would be 50 years of global war fear mongering, we get a new mini ice age.

      Anthropogenic Global Cooling fear mongering can start soon. Somehow, this will be humanity’s doing, and the only solution will be more taxes, regulations, and laws.

      1. The real beauty of all of this will be that the global warmers will be able to use the upcoming mini-ice age as their new baseline for all comparisons post 2040 or so.

        “Look! Your cars are causing snow to not fall until December in Minnesota. Remember when it would start snowing in early October?”

        That and I’m sure that as water is trapped in glaciers during the mini-ice age, developers will rush in and build large luxury buildings on the new shore front as water levels drop.

        Then when things warm up, they can demand tons of taxpayer money to prevent their new buildings from being flooded. It will be a good time to be in the Army Corps of Engineers.

        1. Let Us Try

    2. Niven did it.

      1. Fallen Angels is one of Niven’s weakest novels, but its looking pretty dead on accurate.

    3. Somewhere in DC, a lobbyist is drafting a 900-page document calling for Selective Service to send a generation of corvees into coal mines to alleviate this environmental crisis. Said document will find its way into a cabinet official’s desk drawer and await the day when it’s suggested to Congress by President Emanuel in his first SOTU address.

      1. President Emanuel

        *shudders*

  4. Yup, Preet Bharara’s signature still looks like a child’s @ 5:10

    1. None of these people had cursive writing in school. And it’s only getting worse.

  5. Naked attempt by the U.S. Attorney’s Office SDNY to intimidate everyday Americans for exercising their First Amendment right to criticize public officials. They willfully violated all of our First Amendment rights–it wasn’t just about Reason and the gag order.

    I still wish we knew more about how and why the subpoena and the gag order came to be in the first place. At the very least, there’s a civil rights violation at the bottom of it.

    I’d really like to see all emails and other communications between the U.S. Attorney’s Office, the judge that signed off on the subpoena, and the judge in the Ulbricht case. Isn’t that information subject to a FOIA request? Shouldn’t all such information about public official be available to the public?

    1. Not when it comes to national security and the safety of federal judges, federal prosecutors, or federal agents

      1. I’d understand if releasing that information might impact an ongoing investigation, but we’re not talking about anything that’s going to jeopardize the safety of a federal judge or prosecutor, here.

        …unless being publicly humiliated and/or punished if there was any misconduct is what you mean by jeopardizing their “safety”. But that would give a whole new meaning to the term “job security”.

        1. Very few things deemed “secret” by government involve legitimate security concerns. The overwhelming majority of things kept secret by government entities is to cover up illegal, unethical, embarrassing or immoral behavior by government agents.

      2. Not when it comes to national security and the safety of federal judges, federal prosecutors, or federal agents

        And by safety, you mean their ability to safely do whatever they want without fear of prosecution?

    2. It looks like the Feds regularly troll around the internet. This means we were ratted out by (dramatic pause) ONE OF US!

      (Looks suspiciously around the room)

      1. Looks like they were targeting sites that were critical of the Ulbrict decision and the judge who made it.

        And that’s a clear violation of our First Amendment rights.

      2. It was Weigel. I can’t prove it. I just know it in my heart.

  6. Katherine Forrest?

    Would.

  7. “whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery.”

    You guys have established yourselves in cyber space. Your blowhard stupidity eclipses the professional stylings of the paid scribes at Reason!

    Take a bow.

    Since I almost never actually comments I must excuse myself from this honor.

    I believe what I have just written is so inoffensive to my masters that I should not be prosecuted for it. I also think that I have a 14th amendment right to force the public to accommodate my hard blown stupidity should I ever become a regular commenter.

    1. Even the most inarticulate grunt is deserving of free speech protections.
      Eg: Fuck the Draft.

  8. *comment* dammit, not comments.

    This is why I seldom comments.

    1. Look, if you can’t take the whirling blades, stay out of the chipper.

  9. “the blowhard stupidity of its commenting peanut gallery”

    You can threaten me with all the wood chippers you want, but I will still chuckle uncontrollably every time I read that.

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