Free Speech

by Mike Masnick


Filed Under:
comments, doj, gag order, judge, reason, silk road, subpoena

Companies:
reason



Evidence Suggests DOJ Got A Gag Order Silencing Reason Over Its Bogus Subpoena

from the gag-order-problem dept

A week and a half ago, we wrote about a story from Ken "Popehat" White revealing a highly questionable subpoena from the DOJ sent to the Libertarian website Reason.com, concerning some silly comments made by users there. The comments were talking about killing the judge who was presiding over the Ross Ulbricht/Silk Road trial, but were the usual comment nonsense that no one takes seriously. Except... the DOJ sometimes gets a little overzealous whenever comments even obliquely mention killing judges. As we mentioned, a few years ago, we were contacted by the US Marshals service under similar circumstances -- but never received a subpoena. When we told them that we wouldn't be removing the comment, they said they understood and we never heard anything else.

With Reason, things appear to have gone a lot farther since there was a subpoena. But, now White is raising a further issue: did the DOJ also get a gag order on the subpoena preventing Reason from speaking about it. He quotes two anonymous sources while admitting that's not particularly trustworthy. Instead, let's focus on the other evidence which is fairly compelling. At the top of the list: when White called the US Attorney in charge of the investigation, he suggested there was a gag order:
First, AUSA Velamoor told me during our call on June 5, 2015 that he "believed" there was a gag order. I was skeptical at the time because it doesn't make sense to issue a subpoena to a libertarian news organization before you have the gag order in hand....

Second, in thinking about the call with AUSA Velamoor, I remember that he asked me when someone gave me the subpoena. In retrospect, that inquiry makes sense if he obtained a gag order after issuing the subpoena, such that the timing of the disclosure was legally significant.
At the very least, this suggests that the DOJ had thought about a gag order, whether or not it actually got it. But that leads us to the second, rather compelling bit of evidence. Reason's absolute silence on this:
Third, Reason has now gone ten days without commenting on the story. This story — the federal government using grand jury subpoenas to uncover anonymous commenters — is squarely in Reason's wheelhouse, and would normally provoke justifiable outrage from them. A slight delay in commenting was consistent with them waiting until their lawyers figured out what was going on; this prolonged silence strongly suggests compulsion.
In fact, it actually goes a step further. Reason didn't totally go without comment. It actually posted the following message to its site:
Please refrain from any discussion of the subject of the article at Popehat.com and its contents on our site.

Thanks.
Once again, that would tilt the scales in favor of a gag order.

And, as White notes, if there is a gag order, that's insane and it's quite likely that Reason is challenging it in court -- though it can't talk about it. Yet.

Unless the government has evidence we don't know about — and there's reason to doubt that — it is shocking and outrageous that the U.S. Attorney's Office sought a gag order and continues to enforce it.

Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power. It is classic prior restraint, which is one of the most disfavored forms of censorship in American law.

As White further notes, there are very, very few cases in which such a gag order is allowed, and it's very, very difficult to believe that any of those apply to a situation with some angry commenters on a website.

And... to make matters even more stupid, this gag order is particularly ridiculous in light of the fact that Popehat has already written about the story and it's been covered by tons of other media outlets as well.
The government did not merely seek an order gagging a magazine about a subpoena designed to pierce the anonymity of people commenting about a controversial case on a political website. The government has, apparently, continued to insist that the gag order be maintained even after the existence and content of the subpoena has been very widely publicized. What conceivable justification can there be now to prohibit Reason.com from discussing the subpoena, the gag order, and their significance? At this point, the gag order on Reason doesn't prevent the commenters from learning anything. The only thing it prevents is Reason discussing, and criticizing, and questioning the government's decision to subpoena commenters and gag them.
As White rightly notes, this appears to be a frightening abuse of power, now being used to restrict further discussion of an initial abuse of power. Both abuses deserve widespread scrutiny.

Reader Comments

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  • identicon
    PRMan, 19 Jun 2015 @ 10:46am

    Freedom of Speech

    How is this not a First Amendment violation?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 10:54am

      Re: Freedom of Speech

      Yes, wtf. If it was a person being gagged, then ok, they don't have 1st amendment rights, but reason is a company and maybe even a corp, so the should be free to do whatevs

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jun 2015 @ 11:58am

        Re: Re: Freedom of Speech

        Sometimes you just need to use gag orders so that people cooperate... it is the way it always has been so just get used to it... how would we have roads and police if we don't have gag orders? government is the tits.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jun 2015 @ 1:00pm

        Re: Re: Freedom of Speech

        Oh do shut he fuck up. You must be a prog who's all pissy about corporations having free speech rights. Well they do and this case proves why that is important.

        reply to this | link to this | view in chronology ]

        • identicon
          Pragmatic, 22 Jun 2015 @ 5:54am

          Re: Re: Re: Freedom of Speech

          Well their rights shouldn't trump ours. Natural persons are taking second place to corporations. In any case, Reason is a publication so this falls under freedom of the press.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 1:19pm

      Re: Freedom of Speech

      How is this not a First Amendment violation?
      You're living in a post-constitutional regime, now.

      Rights without effective remedies result merely in abstract wrongs.

      Neither you nor anyone else have genuine recourse against the DoJ AUSA who requested the gag, nor against the court which ordered it. At most, those subject to the gag may have their oppression arbitrarily lifted at some indefinite future point in time—and after some unredressable trouble and expenditure.

      Congress smiles benignly.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jun 2015 @ 4:41pm

        Re: Re: Freedom of Speech

        ultimately there might be a few more nuts running around killing off corrupt government officials. Well the news will call them nuts anyway.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 4:23pm

      Re: Freedom of Speech

      "How is this not a First Amendment violation?"

      How does it matter if it is?

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 20 Jun 2015 @ 7:36pm

      Re: Freedom of Speech

      Title 18, Section 241 of the US code makes it a felony for any two or more people, within the borders of the United States, to violate any civil, statutory or constitutional right under color of law.

      As the US Supreme Court has ruled the same way over and over on prior restraints on the first amendment, I have to wonder -- are all the members of that grand jury or court that issued the gag order now felons?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 11:03am

    Of course they would pull this.

    Do we really expect anything less than illegal behavior out of the Department of Justice?

    I feel bad for college grads that have no other choice but to get a job at the DOJ. How embarrassing. Do you think they lie to their families about where they work?

    Grandma: "I saw you come out of the DOJ building today, do you work there? " College Grad who works there "No grandma, I was just delivering a pizza".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 12:59pm

      Re: Of course they would pull this.

      If you are okay with working in the Gulags then don't get pissed when someone gets upset about it.

      I am sick and tired of the, but it was my job defense. You are either working for evil being evil, or you are avoiding it or fighting it.

      You cannot work for evil and not be evil.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 19 Jun 2015 @ 6:52pm

        Re: Re: Of course they would pull this.

        What if you're just Evil's handyman who unclogs the bathrooms and keeps the lights running?

        I mean c'mon! Where else am I going to get a decent paying job that actually feeds my family... with three weeks paid vacation and stock options? I'm just a handyman!

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 3:18pm

      Re: Of course they would pull this.

      actually, it reminds me of that one line from Rush Hour


      "This is the LAPD. We're the most hated cops in all the free world. My own mama's ashamed of me. She tells everybody I'm a drug dealer."

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 19 Jun 2015 @ 11:09am

    U.S. Attorney's Office, shocking?

    After watching The Internet's Own Boy, there is absolutely nothing that the U.S. Attorney's Office could do that I would find shocking. Probably not even if they tortured and murdered people.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 19 Jun 2015 @ 11:47am

      Re: U.S. Attorney's Office, shocking?

      [...] there is absolutely nothing that the U.S. Attorney's Office could do that I would find shocking. Probably not even if they tortured and murdered people.

      That's not the job of the DoJ. The job of the DoJ is to watch the clouds, clean their fingernails and whistle gayly when heroes and patriots from other government branches torture and murder people.

      You really need to educate yourself about proper division of powers.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 19 Jun 2015 @ 11:12am

    Meh. On the one side, DOJ corruption. On the other side, a bunch of Libertarians.

    Like I said earlier today in the article about the ISIS fearmongering, when bad guys are fighting bad guys, the best thing to do is just stay out of their way and let them.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 19 Jun 2015 @ 2:20pm

      Re:

      On the other side, a bunch of Libertarians.

      Gee, where've I heard such broad brush condemnation before?
      ... when bad guys are fighting bad guys, the best thing to do is just stay out of their way and let them.

      Did you miss this bit?
      Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power.

      That's a "bad guy"?

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 20 Jun 2015 @ 3:09am

        Re: Re:

        That's a "bad guy"?

        Just because they occasionally get some thing right doesn't mean they're not mixing it in with pushing a horrendous, barbaric (in the most literal meaning of the word: anti-civilization) crap that causes very real harm wherever it goes.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 20 Jun 2015 @ 12:04pm

          The Capone ruling haunts us to this day.

          The notion that it's okay to transcend the normal order of justice or due process because the defendant in question has it coming ultimately leads to due process getting corrupted in the future in cases where guilt is not so clear.

          Disparage reason for pushing crackpot positions, sure, but silence them because it offends someone in the DoJ? That is still wrong even when it happens to bad people.

          reply to this | link to this | view in chronology ]

          • identicon
            Pragmatic, 22 Jun 2015 @ 5:55am

            Re: The Capone ruling haunts us to this day.

            Agreed. I'm no fan of the big Ls but if their freedoms are affected by a system that usually sides with people who purport to think the way they do, none of us are safe.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 11:13am

    Haha, funny how these things are the main reason why most of the US hates "Commie Russia".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 12:01pm

      Re:

      that's how propaganda works... and the us is # 1

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 5:04pm

      Re:

      It's true.

      Clear separation of powers, equal treatment under law and robust commitment to, and enforcement of, universal human rights are the best bulwarks against repressive authoritarianism.

      Yet somehow Americans think that "liberal" and "progressive" means communist. Only in goddamn, motherfucking America could this happen.

      On a related note; be sure to check out the new TV series Mr Robot, premiering this week. The pilot is amazing. "Democracy has been hacked".

      https://www.youtube.com/watch?v=JpxvvnWvffM

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 19 Jun 2015 @ 6:59pm

      The US still hates Communist Russia

      ...And hates Obama for being a Muslim Kenyan terrorist.

      I mean it does not speak for the GOP when the most common complaint about the opposition-party president is based on the baby-eating, blood-libel rumors.

      In the meantime, how am I supposed to show Obama's a lizard-man from beneath the Earth's crust now? No one will look at my stacks of evidence because I'm just like one of those birthers!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 2:26pm

    Lets kill the DA who requested the gag order and the judge who granted it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 4:40pm

    The American people collectively roll over and take it up the ass until it happens to them personally and then they get outraged enough to do something rather than just talk about doing something.

    reply to this | link to this | view in chronology ]


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