What do you call it when a prosecutor forces a magazine to hand over confidential information —and then orders the magazine not to publish anything about it? Some might call it heavy-handed judicial overreach, but lately it's just another day at the office for those who purport to administer justice.
The magazine is Reason, a well-known libertarian publication that has been around for decades. The confidential information was IP and server information that would allow federal authorities to identify certain blog commenters to a story about the verdict and sentence in the Silk Road case. Though I and other legal experts who've looked at the situation don't think those comments could plausibly be considered "true threats" (and thus outside the protection of the First Amendment), Preet Bharara, the U.S. Attorney for the Southern District of New York, and Assistant U.S. Attorney Niketh Velamoor served Reason with a subpoena ordering it to turn over the IP addresses and other identifying information for those commenters.
Was that legal? Probably. Although — particularly in light of the Supreme Court's decision in Elonis v. United States, which came out days before Bharara's office acted— Internet hyperbole can't be punished unless it's both intended and reasonably understood as an actual threat, federal law enforcement has extensive investigative powers. So although the First Amendment gives you the right to say nasty things —and, even, to say them anonymously — it doesn't stop federal investigators from issuing a subpoena in an effort to discover your identity.
And if you're a magazine, such as Reason, that prides yourself on open comments, it doesn't stop the government from forcing you to turn over that identifying information. And, apparently, it doesn't stop the fed from ordering you not to tell people that you've been forced to turn over that information.
The frothings of Internet commenters, of course, are apt to be regarded as low-value speech. Even so, in a world where, increasingly, people are hounded out of their jobs or subjected to legal harassment for things that they say, the ability to speak anonymously is of growing importance.
As Reason editors Nick Gillespie and Matt Welch write: "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."
When the government orders people not to talk about what it's doing, it's hard to keep track of what it's doing. That's what the First Amendment is intended to prevent. It's ironic that the Obama administration — whose supporters in 2008 made much ofthreats to civil liberties from George W. Bush's national security apparatus — has so thoroughly embraced surveillance and gag orders.
But if it won't support a prosecution, why gather this information? Bharara's office isn't talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you'd be wise not to do so if you don't want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.
Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.
In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors. To read more columns like this, go to theOpinion front page.
But if it won't support a prosecution, why gather this information? Bharara's office isn't talking, but I suspect that the purpose of this exercise is to chill speech: To send a signal that whether or not the First Amendment protects your right to talk smack about a federal judge, you'd be wise not to do so if you don't want to attract the attention of the feds, who might choose to share your information with employers or the news media. Consider it a sort of prosecutorial brush-back pitch, if you like.
Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.
In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors. To read more columns like this, go to theOpinion front page.
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