Feds Want To Unmask Internet Commenters Writing About the Silk Road Trial Judge

An anonymous reader writes: A grand jury subpoena, obtained by Ken White of the law blog Popehat, demands that libertarian news magazine Reason hand over "any and all identifying information" about certain commenters posting on an article published May 31st, "Silk Road Trial: Read Ross Ulbricht's Haunting Sentencing Letter to Judge." The subpoena cites a law against "interstate threats" as the reason for demanding the information, which the Supreme Court very recently decided must include real intent.

As White points out, the comments — repugnant as they are — may very well not constitute a true threat, as they aren't directed at the judge and don't detail any real plans for violence. The kicker: although it's possible to fight the subpoena, precedent suggests the U.S. Attorney's office may have the power to obtain the information anyway. However the situation shakes out, this isn't nearly the first fight over commenter anonymity and the First Amendment, and certainly won't be the last.

Comments

Normal procedures for North Korea and USA

[Anonymous Coward]

Please don't resist. In oppressive regimes such request should not be challenged.
We feel sorry for folks living in USA or North Korea

Yikes

[NoNonAlphaCharsHere]

Clearly, suggestions that she "should be taken out back and shot" or "fed into a wood chipper" are LITERAL threats that the posters are going to immediately drive cross country in a diaper to perform these acts. And statements like these clearly cross the line into "repugnant".

I seem to recall that the Framers Intent for free speech and freedom of the press were written by men who had actually *anonymously* printed TREASONOUS and SEDITIOUS pamphlets against their lawful government just a few years before.

Re:Hiding behind anonymity

[Archangel Michael]

The whole thing started to crumble, once the one guy said "there ought to be a law" and it was considered. Now, we have a bunch of nanny raised kids who can't handled even the slightest taste of harshness without crumbling into a ball of whimpering jelly. All because someone said "there ought to be a law" and made it so.

Nobody stops are to even ask "why".

Re:Those are not true threats

[meta-monkey]

Not exactly. Here's a lengthy comment I wrote about the decision. While I am not a lawyer, I do pretend to be one on the internet. I post on forums where people write analyses of cases and we discuss them, and actual lawyers (including my father) have said the analysis to which I linked you (or a version thereof) is "not bad." Take that for what you will.

Elonis' conviction was overturned, yes, but he's not out of the woods. It's been remanded back to the 3rd circuit. The nut of the decision is that the trial judge's instructions to the jury were bad, saying they needed only to find that Elonis was negligent, posting things that he should have known would be interpreted as threats. The Supremes said that's not good enough. They won't tell us what the standard actually is (recklessly? Knowingly? Purposefully?) but "negligently" is not good enough. So he could well get a new trial, at which point the judge will inform the new jury they must find that he was one of those other things.

Here, however, I find it impossible that anyone could post those anonymous comments to the Reason blog and any of: 1) intend to make a reasonable person afraid for her life ("purposefully"), 2) know a reasonable will become afraid for her life ("knowingly"), or 3) know a reasonable person will likely fear for her life and do so anyway ("recklessly").

So, none of the possible mens rea requirements that result from Elonis could apply here. There is zero chance anyone could ever convict any of these people under 18 U. S. C. 875.

And the U.S. Attorney's Office knows it. Absolutely knows it. They are doing this purely to harass and threaten, and chill political dissent. It's despicable.