Reason Magazine’s Gag Order

The Libertarian publisher was subjected to a gag order about the government’s demand for information regarding online commenters.

Back in January I posted about the trial of Rober Ulbricht, who was accused of being “the Dread Pirate Roberts,” the manager or enabler of the Silk Road website, the home of illegal transactions. There were several oddities about the case, not least that no one knows how the government gathered some of its evidence and the defense was not allowed to find out. It raised suspicions of warrantless NSA snooping or something similar.

At the time I suggested that the trial might be worth following, but later I got busy and didn’t write about how the Judge imposed a severe sentence on Ulbricht. But Reason did on their website and therein lies a tale which they tell:

On May 31, Nick Gillespie published a post at Reason.com’s Hit & Run blog discussing Silk Road founder Ross Ulbricht’s “haunting sentencing letter” to District Court Judge Katherine Forrest, and the judge’s harsh response. Gillespie noted that Forrest “more than threw the book” at Ulbricht by giving him a life sentence, which was a punishment “beyond even what prosecutors…asked for.”

In the comments section of the post, six readers published reactions that drew the investigative ire of the U.S. Attorney’s Office for the Southern District of New York. In a federal grand jury subpoena dated June 2, the U.S. District Court commanded Reason.com to turn over “any and all identifying information” we had about the individuals posting those comments.

Some of the comments that the grand jury was investigating could be understood as threat, though there was no reason to take them seriously. But others were not even open to that interpretation, such as : “I hope there is a special place in hell reserved for that horrible woman.” How you can have a government restrained by the First Amendment when they are allowed to harass you for what you say was a problem that did not seem to bother the U.S. Attorney’s Office.

But the attorney also asserted the right to restrain a news magazine from reporting that it was being subpoenaed. At first, they simply received the subpoena with a request that they voluntarily not tell the targets that they were being investigated. Reason followed precedent set by Twitter in an earlier case to let the targets know that there was a subpoena and that they would follow the subpoena’s demand unless the targets wanted to go to court to quash the investigation.

At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called [Assistant U.S. Attorney Niketh] Velamoor to discuss the subpoena. The call did not go well. Sproul asked Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, “No.” Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was “coming close” to interfering with the grand jury investigation. The call ended abruptly.

They immediately informed the targets of the U.S. Attorney. Which was good since the attorney got a gag order and sent it to them later that day. He also then hinted that they had somehow violated the order, presumably because they informed the targets before he secured the order.

Eventually, Reason was able to go to court and get the gag order removed which is why they are writing about it now.

Reason’s post about this experience includes a lot of valuable analysis (in my opinion). I will just quote one brief part of it:

Reason’s experience needs to be understood in a larger context. Especially since the 9/11 attacks, there has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands–often under threat of punishment–for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.

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?