The beating heart of worries about free speech and the danger of overreaching government enjoyed a shock from the old defibrillator on June 8. That’s when attorney Ken White of prominent legal blog Popehat.com revealed that libertarian online publication Reason.com, where I was managing editor until June 30 (I left for unrelated family reasons) had received a grand jury subpoena dated Jun 2, demanding that the publication turn over identifying information about six of its readers. Even as that conversation got a jolt, though, few people knew just how desperate the federal government was to slap legal duct tape over the mouths of those who would criticize its officials and policies.
As Nick Gillespie and Matt Welch revealed, the readers targeted by the subpoena commented under pseudonyms on an article about the sentencing of Ross Ulbricht, the convicted entrepreneur behind the Silk Road online marketplace for illicit recreational drugs. Reacting to the brutal life sentence for Ulbricht, readers skeptical of drug prohibition left understandably enraged comments about Judge Katherine Forrest. They wished her to hell, suggested she ought to be shot, or recommended she be fed through a wood chipper. Not nice stuff. But then, taking away a man’s life because he engaged in victimless acts that you don’t like isn’t so sweet-tempered either.
Apparently angered by the darts tossed at Judge Forrest, Preet Bharara, United States Attorney for the Southern District, and his sidekick Assistant U.S. Attorney Niketh Velamoor, targeted the commenters for the attention of the modern bureaucratic inquisition. Speak out against the state, will you? Let’s have a scary and expensive look into your lives. The subpoena demanded “subscriber/account information,” “address(es), email address(es), telephone number(s),” “IP address(es,” “credit card/bank information”…
Dissecting the subpoena and the targeted comments, Popehat’s White noted that “true threats” to do violence to people are not protected by law, but that the angry ventings at Reason “are very clearly not true threats—that this is not even a close call.” That is to say, there was no legitimate reason to target the commenters, and no hope of prosecuting them. The intrusive investigation itself, with its related fears, inconveniences, and costs, was also the penalty.
Slowly at first, but gathering speed, law bloggers, political pundits, and news outlets picked up the story. Most agreed with White that Bharara and company were not just exceeding their authority, but threatening legitimate criticism of government officials. “Even if the subpoenas don’t result in the filing of any charges, they can still impose substantial costs on their targets, and create a chilling effect on political speech,” cautioned Ilya Somin at the Washington Post’s Volokh Conspiracy blog. The New York Post editorialized that Bharara’s subpoena “seems a dangerous case of overreaction”—and perhaps one intended to stroke a judge before whom he regularly appeared.
Bharara has a notably tense relationship with the judiciary that he may wish to paper over. A federal judge recently told him to watch his mouth and stop publicly declaring the targets of his investigations to be guilty before they’ve gone to trial.
Absent from the discussion, though, was Reason itself. Its staff was unavailable to correct misstatements about the face off with the Justice Department, absent in the defense of valued readers, and didn’t even protest a general screwing by the government. This was all inconceivable for a publication that had never before been shy about flaying politicians, judges, and prosecutors. But there was a very nasty cause for the silence. Unbeknownst to the public, Reason and its staff had been threatened with fines and imprisonment if they said a word about the subpoena, or even revealed that they’d been ordered to stay silent. The publication had been censored through the issuance of a gag order, requested by loose-lips Bharara’s office and signed by U.S. Magistrate Judge Frank Maas, hours after Ken White got hold of the subpoena.
Americans think of their country as one that embraces free speech. “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” John Milton wrote in Areopagitica (1644). That celebration of open discussion came to permeate western civilization and invigorates the First Amendment to the United States Constitution. Calling officials sons, daughters, or trans-puppies of bitches is a national pastime.
But that tradition of free speech has been violated overtly or quietly throughout the nation’s history. The Sedition Acts, Civil War-era censorship, and the Red Scares all represented government attacks on dissenting voices. American history is perhaps notable less for total absence of limits on speech than for belated revulsion at such attempts at muzzling. Attorney General A. Mitchell Palmer and Senator Joseph McCarthy are now recognized by anybody worth a damn as national embarrassments.
Modern gag orders, such as the one imposed on Reason, fall well within the infamous tradition of contemptible policies that violate the free speech tradition and can be expected to eventually earn public repudiation. Bharara, Velamoor, Maas, Forrest, and company are due to join the ranks of figures whose roles in public life might well be more than a bit tarnished by their actions (and should really be limited to curbside recycling. In Pyongyang).
Legal eagles would have it that some gag orders are necessary to ensure fair trials or allow for effective investigation of ongoing crime. For arguments sake, let’s grant them the point. But the muzzling of Reason was imposed after Reason had (legally) forwarded the subpoena to commenters, after Ken White had obtained the document, and continued in place after the matter had become a topic for international discussion. When interested parties from New York to London to Moscow were sounding off on Preet Bharara’s inquisition, only Reason writers were forbidden to chime in—or to reveal why they were silent.
Gag orders are understandably controversial even among government employees garbed in black dresses. Just last year, U.S. Magistrate Judge John Facciola of Washington, D.C. slapped down the feds in a very similar case involving gag orders intended to conceal the existence of subpoenas targeting Twitter and Yahoo users. He objected that an order “would implicate Twitter’s rights under the First Amendment because it would be both a content-based restriction of speech and a prior restraint on speech.” Facciola allowed that the existence of the subpoenas and objections to them should be made public in redacted form so that debate could continue without jeopardizing the investigation.
And again, the gag order on Reason remained in place after the full content of the subpoena in question was already a matter of public discussion. A fair conclusion is that it was intended not to protect legal process, but to restrain Reason’s political speech, both to mold debate and to punish the publication for its dissent. Reason, it seems, was muzzled purely as an exercise in government thuggery.
That the subpoena and subsequent gag order were purely abuses of power is hardly a stretch of the imagination. Bharara, Velamoor, Maas, and Katherine Forrest are all political creatures. Obama-appointee Forrest, to her credit, once ruled against arbitrary detention powers under the National Defense Authorization Act (though her injunction was subsequently overturned). But at Ulbricht’s brutal sentencing she railed against the idealistic black marketeer less for trade in disfavored intoxicants than for trying to create a marketplace that “was better than the laws of this country.” That he actually succeeded seemed to deeply offend her. Bharara is a “bit of a prig” (in the words of New York magazine’s Chris Smith) who likes to publicly scold others for perceived moral failings. He’s been scolded in turn, by Reason writers, for his conduct in the Silk Road case, the treatment of an Indian diplomat in a dispute over pay for a housekeeper, and his general disregard for personal freedom. Bharara is also a Chuck Schumer crony and Obama appointee who campaigned for the Attorney General nomination before Loretta Lynch got the nod. That this crew would abuse the power of their offices to target a publication that regularly criticizes the government with which they so closely identify and that sponsors their careers is no surprise. It’s the outcome that Reason’s writers have advised readers to expect from powerful officials anytime they are allowed access to coercive power beyond the bare minimum.
Which is to say, there’s a certain “I told you so” satisfaction as a Reason staffer to railing against powerful government for years, only to be the victim of authoritarian predations worse than anything we had any cause to expect. We’d warned that officials are thin-skinned, convinced of their own superiority over mere mortals, and prone to use every tool at their disposal as bludgeons against personal and state enemies. Damned if we weren’t right. Never again will our opponents be able to credibly accuse of us of overstating the case when we warn that the American state apparatus is out of hand. Because our readers were targeted by a bunch of political goons and we were threatened with legal consequences if we publicly objected!
But we could do without the vindication.
Frankly, after laboring under an official ban on speaking out against a despicable government assault, it’s easy to embrace the Reason commenters’ antipathy toward the powers that be, if not their prescribed solutions. In fact, it’s tempting to wish for this case to culminate in Preet Bharara, Frank Maas, Niketh Velamoor, and Katherine Forrest savagely clawing at one another in a desperate struggle for the final seat on the last flight out. Because, while America should always have room for people who respect liberty and value vigorous debate, they don’t share that respect. This country is entirely too good for the likes of them.
But it’s enough if the damage they’ve done leads to the offices they hold being stripped of the power to do such harm again.
Oh, and if you haven’t heard about this little incident from your favorite news outlets, perhaps you should contact them and ask why.