A few weeks ago Ken White at Popehat revealed the contents of a subpoena the U.S. Department of Justice secured from a grand jury and served on Reason.com. This subpoena demanded that Reason turn over “any and all identifying information” relating to certain comments made below an online post discussing the life sentence of Ross Ulbricht, founder of the notorious online marketplace Silk Road. The comments in question were allegedly threats against Judge Katherine Forrest, who gave Ulbricht his sentence. In workmanlike fashion, White dispelled the notion that any of the comments in question—though many were disgusting—could be reasonably understood as actual threats on Judge Forrest. The subpoena was, in short, baseless and violated the free speech rights of the commenters and Reason. However, new information revealed late last week shows that the subpoena was only the beginning of one U.S. Attorney’s secret speech inquisition, and but another chilling example of secret persecution in America.
As White worked to confirm the authenticity of the original subpoena, he came to believe that Assistant U.S. Attorney Niketh Velamoor followed the subpoena by securing a gag order against Reason, preventing them from even discussing the subpoena’s existence (and, of course, the gag order, too). White was correct, and when the order was finally lifted last Friday Reason’s Nick Gillespie and Matt Welch were able to reveal the details of the entire debacle. Ken White summarizes the problem, which lies not only the gag order but the original subpoena:
[Assistant U.S. Attorney] Velamoor’s conduct was threatening throughout — not threatening like a stalker or a foe, but threatening like a tired parent who wants obedience and gets angry with anything but quick compliance. The initial form letter accompanying the subpoena noted that while disclosing it was not forbidden, “disclosure of the existence of this investigation might interfere with and impede the investigation.” What does it imply when a federal prosecutor tells you that?
Most people interpret it to mean that, if the prosecutor decides you’ve disclosed it in some undefined way that thwarts his or her investigation, you may be the prosecutor’s next target.
To its credit, Reason did not simply submit to Velamoor’s bullying. Furthermore, as Gillespie and Welch note, thanks in part to a fearless press much of this situation was resolved in under a month. Reason complied with the original subpoena because none of the commenters in question objected, so we now wait and see whether the Department of Justice will in fact pursue a line about “a special in hell” for a federal judge as a threat. Alas, given these actions, if there is something to see, will we see it?
Secret speech inquisitions are becoming all too common. In the John Doe investigation in Wisconsin, secrecy and gag orders in the case serve not as a legitimate tool for law enforcement to investigate organized crime like the mafia and drug cartels, but merely to keep baseless legal theories under wraps for as long as possible. After enough time and litigation costs add up, even full vindication for the accused will mean very little. Bravely, some under gag orders in the John Doe case have spoken out. In the Reason case, similar bravery was greatly buttressed by clever, quick and equally confident legal counsel. The lesson is apparent: as rogue prosecutors baselessly utilize gag orders and abusively expand investigative tools on a case-by-case basis, so too must citizens and organizations confidently—and loudly—fight back.
This should not only be done defensively, though this must happen given the unpredictable ways in which prosecutors will abuse the law, but offensively.