Free Minds & Free Markets

How the Feds' Subpoena of Reason and Gag Order Went Public's Ken White on how he broke the subpoena story and what government overreach means for open expression online.

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 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, 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 Unerklärliche (oder unidentifizierbare) Spiele im Kornfeld" by deef. 

Watch the video above for the full interview with Novak, and scroll down for downloadable versions. Subscribe to Reason TV's YouTube channel for daily content like this.

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  • Caress of Woodchipper||

    Kind of tempted to get some vinyl labels made up for woodchippers.

    "Insert Statist Here" and such. Need to find something like cafepress for it.

  • Quixote||

    Come now, these menacing comments posted on Reason were not mere "idle chatter," 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. See the documentation of America's leading criminal satire case at:

    Indeed, Popehat, to the best of my knowledge, has very wisely ignored the dissenting opinion in the above-linked case, with its foolish judicial bluster concerning an "atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster." For I think it's safe to wager that hardly any respected pundit like Popehat would wish to embarrass himself by arguing that First Amendment prevents the government from criminalizing the deceitful hoaxes of the Yes Men, or the various reputation-harming forms of expression listed at:


    And, lest the point of my comment be misunderstood, I believe it is worth reminding "freedom of speech" bloggers like Popehat and Volokh (and Gillespie and Welch and all the others) 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 big black boots.

  • Harold Falcon||

    Of course it was idle chatter. Get your head out of your ass and put it in the woodchipper.

  • Quixote||

    I would have at ye yet, knight, with my lance for defending the insidious trolls who twist words and stir up controversy. It was most certainly not idle, nor was it chatter, but designed to trigger great panic and fear in a most honored and honorable portion of this great American nation, a land of ordered liberty where the rule of law always prevails. Popehat certainly knows how to choose his causes well, and he is adept at banning those whom he dislikes from commenting on his own website. Who among us wouldn't like to be admitted to the roster of Reason contributors? Certainly we too deserve a video for our many contributions?

  • SQRLSY One||

    We’re butt-fucking you up your inflamed, bleeding asshole, and then rubbing salt into it, and topping it off by commanding you not to scream in pain, or to let ANYONE know, what we’re doing to ya!

    Power pigs should die… And be fried up! Power-pig bacon to all the hungry peoples!

  • Patriot McChipper||

  • SQRLSY One||

    Hi Patriot McChipper,

    Your crickets noises has put me in a more “chipper” mood, now, ThankYouVerraMuch!!!

    Now I can be more calm, cool, and serene, while Government Almighty inserts its big, hairy dick up our collectively bleeding asses… I hope to remain serene while awaiting my big fat steaming pile of bacon at the end of it all… I am… Keeping the Faith!

  • Patriot McChipper||

    Good for you, I am glad you are keeping the faith. The point of my comment was that the silencing has seemed to work.... Several hours after the story broke was only 2 comments..... Very quiet, usually there would be a bluster of comments. I truly hope that this doesn't serve to silence the dissenters.... That would be a very sad day indeed.

  • AlgerHiss||

    To the folks at Reason.....thank you.

  • PCSk8r||

    yes!! Ditto!

  • Animal||

    Peanuts! Peanuts! A veritable gallery of 'em!

  • Tionico||

    these guesschtapo federales swimming in power fail to realise they are messing with real lives of real people who CARE (as these fed minions do not) about the country we all occupy these days. They are pressing hard, and will be "oh so surprised and shocked" when they push someone too far. Jesse Adair got the shock of his life when the Lexington Militia actually FIRED BACK on his troops..... HITTING some of his troops. Da noive a dem troublemakers!!!! Concord was worse... carefully aimed close range fire devastated the units at the North Bridge at Concord.... killing a significant number of the officers there. WHAT will be the tipping point for the present? Then the "Demand That Could Not be Met" was to disarm the colonials. Here it seems a tosup between disarming (they're definitely working on that one) and silencing us. Neither is acceptable. Both MUST be resisted else we become serfs and vassals.

  • Butler T. Reynolds||

    They have pretty big guns, so I'd recommend brushing up on the serf and vassal skills.

  • You're Kidding||

    All the guns in the world can't overrule boots on the ground.

  • ||

    "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.

    But don't worry, the average FISA court judge appointed by Chief Justice John "FYTW" Roberts is even more in touch with the average Middle Easterner on the ground; or their cousin's friend's dog walker in the US as the case may be.

  • Rockabilly||

    The federal government is deeply corrupt, unaccountable, and out of control

    I call for a mass impeachment of the DC elite.

    Their crimes, which are numerous, can no longer be ignored.

  • coma44||

    Agreed. But we are only two people.....think we need like 100 million to help.

  • OneWingedShark||

    Make that three.

  • Harold Falcon||

    You have my woodchipper.

  • Migrant Log Chipper||

    And my high powered chainsaw, it has a 60 inch bar, 2 at one time, I tell you.

  • block30||

    Well I swore this, "...that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."
    So yeah, I'm in.

  • macsnafu||

    A prevailing view among mainstream people is that it's perfectly reasonable to "investigate" possible threats to see if there are any true threats. And of course, if there isn't any true threat, then the government wouldn't attempt to prosecute.

    But there are serious problems with this view. For one, anyone reading the actual comments made would realize that none of them constituted a true threat. And while it's possible that someone, somewhere, who makes an exaggerated or hyperbolic threat might actually attempt to carry out a true threat, there are far too many hyperbolic threats on the internet to justify the time and expense of the DOJ investigating all of them, or even most of them.

    Which clearly means they will "investigate" selective targets as a way of intimidating people. People they don't like. People don't usually don't realize that the legal process of investigations and subpoenas can create a hardship in itself, even *if* they never prosecute. Selective use of the legal process amounts to harassment, and the courts have apparently said that it's perfectly legal for them to do this. And I don't think the imaginary wood-chippers are going to make them change their minds.

  • CatilineWoodchipperConspiracy||

    It's videos like these that should be taken out back and given awards.

  • Alan@.4||

    No way in hell such foolishness should ever be anything but public, unless of course The Feds feel that they have, in their actions, something to be ashamed of or go hide from the public. Think that that might be the case?

  • Alan@.4||

    Please note, "or go" hide, should read "to hide". Believe it or not, once upon a time, I could actually type 65 WPM, "error free", though that was a very long time ago.

  • Notorious G.K.C.||

    As I said before, if federal judges are going to go all activist on us, why can't they formulate a rule limiting subpoenas, in cases relating to speech, to extremely rare situations where there's clearly and unambiguously a non-speech-related reason to find the information in question?

    I keep getting told that "well, the law just allows prosecutors the freedom to issue these subpoenas, what are you gonna do?" Well, maybe the federal bench should use the same creativity it uses on other laws to revise *this* law. And at least they'll be enforcing the First Amendment, unlike other creative interpretations of the law.

  • ||

    This story again? Old news. To quote a wonderfully sharp wit, 'what difference does it make at this point?'

    My, my. Other than that, the woodchipper quote and the subsequent running with the meme is one for all-time. Reason should dedicated a wall or something to woodchippers - as a reminder.

    Speaking of R-mag, there they (Reason) go taking shots at the commenters characterizing them as 'juvenile'. One man's juvenility (my word) is another man's maturity I reckon. So, that being said, bend over. I’ll show you juvenile.

    Scary description about Federal Prosecutors. Young people usually lack wisdom and have little inner-values mechanism to control their ambitious impulses. The result shouldn't be surprising given that the kid who just asked if you needed fries with your meal a year before is now out of law school armed with the big black book of 'fuck you, that's why'.

    All that and the judge still deserves a spot in Dante's Inferno. Same with Ralph Malph and Potsie who sent those scary letters.

  • Suellington||

    Absolutely excellent. That last line was pure gold.

    ,Viva la commentariat!

  • Migrant Log Chipper||

    Rufus, FTW. Fucking canucks, but I digress....

  • ||

    Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do...... ✹✹✹✹✹✹

  • woodNfish||

    White (sic) notes, "whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery."

    Hey White - go fuck yourself you pointy-headed bag of shit.

  • You're Kidding||

    "eclipsed only by the blowhard stupidity of its commenting peanut gallery."

    Hey! I resemble that remark.

  • ||

    Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do...... ✹✹✹✹✹✹


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