DOJ stirs free-speech fight after demanding libertarian site turn over info on commenters

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Federal prosecutors are demanding libertarian news outlet Reason help track down six readers who made threatening comments about a judge in response to an online article, touching off a fierce debate over whether such comments are protected free speech.

The readers posted on about wanting to kill the federal judge who sentenced Ross Ulbricht, founder of online black market Silk Road, to life in prison.

The Department of Justice claimed several comments crossed the free-speech line. In a June 2 grand jury subpoena obtained by Popehat’s Ken White, the government urged Reason to pony up digital data on its commenters.

“The subpoena commands Reason to provide the grand jury any and all identifying information Reason has about participants in what the subpoena calls a ‘chat,’” White wrote.

Reason, which publishes a magazine and website, reportedly says it won’t comply -- and they’ve got several free-speech defenders in their corner.

“Subpoenaing Reason’s website records, wasting its staff’s time and forcing it to pay legal fees in hopes of imposing even larger legal costs and possibly even a plea bargain (or two on the average Joes who dared to voice their dissident views in angry tones) sends an intimidating message: It’s dangerous not just to create something like Silk Road. It’s dangerous to defend it, and even more dangerous to attack those who would punish its creator,” former Reason editor Virginia Postrel wrote on Bloomberg View. “You may think you have free speech, but we’ll find a way to make you pay.”

But others aren't as quick to vilify the DOJ.

First Amendment Coalition Executive Director Peter Scheer told that just because the federal government issues a subpoena doesn’t mean they are going after free speech or are planning to prosecute.

The information could be used to see if the comments triggered a crime but even then, the areas of the law are gray, he said.

The crass comments in question stem from a May 31 post on The site published a pre-sentence letter to Judge Katherine Forrest from Ulbricht, who was convicted of running the online drug trafficking site named Silk Road. In the letter, Ulbricht took responsibility for creating the site. Forrest ended up sentencing Ulbricht to life in prison -- a penalty harsher than the prosecution requested.

In response, one commenter on Reason’s site wrote, “Its (sic) judges like these that should be taken out back and shot.”

Another chimed in, “Why waste the ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.”

The subpoena comes two weeks after the U.S. Supreme Court addressed a similar issue regarding a rant a man made on Facebook.

In that case, the high court overturned the conviction of a man who made a series of violent threats against his wife on Facebook. Anthony Elonis claimed his rants were not “true threats” and instead were free speech protected by the First Amendment.

In that case, the justices overturned the conviction of the man and laid down three standards the government must follow before it can prosecute speech.

First, there must be an apparent ability to carry out the threat. Second, the words must show a clear intention to carry out the threat. Third, there must be a likelihood of success.

“None of those circumstances exist here,” Fox News analyst Judge Andrew Napolitano said regarding the case. “They didn’t even name the judge. They don’t even know where the judge is located.”

Napolitano, who called the comments “reprehensible,” said he defends the right of Reason readers to articulate speech freely without the threat of government intervention.

A representative with Reason said they could not comment for this article. The Justice Department declined to comment.