Confirmed: DOJ Obtained Gag Order To Keep Reason From Informing Affected Commenters Or Discussing Subpoena

from the we'll-teach-you-not-to-comply-with-our-voluntary-stipulations dept

A DOJ subpoena leaked to Ken "Popehat" White showed the government was more than willing to stomp all over free speech to "protect" unthreatened federal judges. The order targeted comments at Reason.com that -- while inflammatory and ugly -- were decidedly not "true threats." Even if one was inclined to believe Reason commenters were going to hunt down the judge who presided over the Dread Pirate Roberts trial and use bullets/woodchippers to make her "pay" for her heavy-handed sentence, there was no non-ridiculous way to perceive someone saying "there's a special place in hell" for Judge Katherine Forrest as somehow being a "true threat."

While White (and many others) commented on the subpoena, Reason itself remained quiet on the matter, outside of a short post asking commenters to refrain from commenting at Reason on the "subject matter" of Popehat's post. About 10 days later, White speculated that there could be a gag order in place, citing a couple of anonymous tipsters, as well as his own conclusions drawn from the available evidence.

The existence of a gag order would be an active effort on the part of the government to chill speech at Reason, preventing it from discussing the subpoena it had received as well as encouraging it to extend this chilling effect to its commenters -- which it did.

No more speculation is needed. Reason did indeed receive a gag order related to the DOJ's subpoena.

For the past two weeks, Reason, a magazine dedicated to "Free Minds and Free Markets," has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.
That gag order has now been lifted. Reason's attorney discussed the matter with the Attorney General's office, pointing out the obvious fact that the subpoena and the comments it targeted were public knowledge, thanks to Popehat's post.

As ridiculous as the subpoena and the circumstances surrounding it were, Reason still felt compelled to maintain silence while the gag order was in effect. Reason's Nick Gillespie and Matt Welch note that the subpoena originally appeared without an accompanying gag order. Instead, it only contained a request that the contents of the order not be shared with anyone.
The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the con?dentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

Moreover, if you intend to disclose the existence of this subpoena to a third party, please let me know before making any such disclosure.
After a discussion with the Assistant US Attorney General, Reason notified the commenters affected, thus allowing them to retain counsel if they wished to assert their First Amendment right to anonymity.
At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked [AUSA Niketh] Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No." Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation.
After this call, Reason notified the commenters. Six hours later, the gag order arrived, accompanied by an email and another phone call that saw Velamoor follow up his inability to recognize free speech protections with bogus accusations of criminal behavior.
Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters' constitutional rights and laying out the timeline of Reason's notification to them. Velamoor told her that he now had "preliminary information" suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was "looking into it further."

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney's office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.
The accusations weren't the only vague part of this debacle. The gag order itself is straight boilerplate, which suggests the DOJ hasn't dug very deeply into the situation it's issuing court orders for. The opening paragraph is nothing more than a list of possible reasons for obtaining a gag order, none of which fit this specific situation.
The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.
Not a single one of these potential scenarios fits "overzealous investigation of normal internet comment thread hyperbole," but then, of course, no subpoena/gag order boilerplate ever would. Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it's a grand jury subpoena, and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence.

As the Reason writers point out, the site's comment thread is often a profane and highly-offensive battleground:
Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread).
As ugly as it is, it's free speech, it's protected and it's to be celebrated, rather than chilled into a pale shadow of its former self. When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic "discussion" native to the internet, it does harm to the First Amendment it's supposed to be protecting.
To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already.
Normally, I would say something like, "One hopes this will be tossed as soon as a judge reads the complaint," but it's a grand jury handling this, so those deciding whether or not probable cause exists to hand out indictments likely won't have the legal background nor the inclination to go against the prosecutor. Instead, they'll be given a narrative by the prosecutor and a list of recommended charges. Once those charged face a judge, they may find the indictments tossed, but that's a long, dark road to travel just for talking about bullets, woodchippers and hell's special places in a comment thread.




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  • icon
    That One Guy (profile), 19 Jun 2015 @ 6:47pm

    Retroactive rule changing at it's finest

    So the DOJ sends a 'request' to try and block the affected people from becoming aware that they're under investigation and have certain rights as a results, the site refuses to follow it and informs those involved both about the investigation and their rights, the DOJ responds by changing 'request' to 'order', and then acts as though the order was in force the entire time.

    Lovely. /s

    Still, as disgusting as the DOJ's actions in this mess have been so far, I can't help but chuckle at the sheer chutzpah shown by this bit:

    He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them.

    "Yeah, if you would, could you put off informing the commenters about this matter?"
    "Why?"
    "So we have time to get a court order prohibiting you from informing the commenters about the matter."

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

  • identicon
    PRMan, 19 Jun 2015 @ 7:32pm

    Maybe

    I could see the "special place in hell" comment not meeting the requirements of going to trial by a Grand Jury. That one makes no suggestion of violence on the part of the commenter.

    If they really include something that weak, I could see it being turned away.

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

    • identicon
      Anonymous Coward, 19 Jun 2015 @ 8:44pm

      Re: Maybe

      If they really include something that weak, I could see it being turned away.
      Dude.

      Dude. Grand juries indict. That's their job. The prosecutor walks his case in, and five minutes later he walks out with a true bill.

      After that, then there's some motion practice, and then, after a while, the defendant ends up with a plea-bargain. Then there's sentencing. Following all that, there's an appeal, unless the defendant waived appeal in his plea.

      That's how the system is set up to work. Almost the only time it doesn't work that way is when some cop has been accused. Then the grand jury returns "no true bill", and everyone says, "See, the system works!"

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

      • identicon
        Rekrul, 19 Jun 2015 @ 11:10pm

        Re: Re: Maybe

        Dude. Grand juries indict. That's their job. The prosecutor walks his case in, and five minutes later he walks out with a true bill.

        Unless the accused is a cop, then the prosecutor spends weeks arguing against charging him...

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

        • icon
          Bergman (profile), 20 Jun 2015 @ 7:25pm

          Re: Re: Re: Maybe

          A grand jury determines whether probable cause exists. Nothing more and nothing less -- that it is more likely than not that a crime was committed.

          That is the same standard of evidence required for a police officer to make an arrest.

          Given how low the bar is set, the only time a prosecutor ever gets a no bill result is when they want that result.

          Since the prosecutor controls 100% of the evidence the grand jury sees, even a false arrest won't prevent an indictment if the prosecutor wants one. Even if the evidence against the accused is at the beyond a reasonable doubt or even absolute proof levels, a prosecutor who wants a no bill doesn't have to show any of that evidence to the grand jury, and will 'fail' to get the grand jury to indict.

          In fact, a no bill result really ought to result in discipline or even criminal charges against the arresting officer, since if there was enough evidence to arrest then there is also enough to indict.

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

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 10:04pm

    Place blame where blame is due...

    ... and it ain't the fault of the grand jury this time.

    > ... and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence.

    The grand jury itself probably hasn't even been convened yet. Why blame them for the actions of the prosecutor's office?

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

    • identicon
      Anonymous Coward, 21 Jun 2015 @ 9:37am

      Re: Place blame where blame is due...

      The grand jury itself probably hasn't even been convened yet.
      Without looking it up under the federal precedents, I had had the general impression that issuing a grand jury subpoena without an actual sitting grand jury was some kind of huge prosecutorial no-no.

      Am I mistaken about that? Isn't it a really major bench-glare, or even wrist-slap, if the prosecutor proceeds like that?

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

  • identicon
    Rekrul, 19 Jun 2015 @ 11:11pm

    Well, at least they'll learn something from all of this. Next time they'll declare the comments terroristic threats so that none of the normal protections apply and they can do whatever they want. :(

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

  • icon
    G Thompson (profile), 20 Jun 2015 @ 12:00am

    And America wonders when they try to spout that they are a democracy with due process laws that people in EVERY part of the world point at your Star Chamber/Kangaroo Court (Call it a Grand jury if you will) and laugh hilariously!

    It's also why Grand Jury indictments from The USA hold no weight in English Rule law countries

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

  • identicon
    VPJ, 20 Jun 2015 @ 4:04am

    One hopes a special place in Hell is reserved for AUSA Niketh Velamoor.

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

  • identicon
    Anonymous Coward, 20 Jun 2015 @ 4:42am

    that special place in hell comment might, in fact, be a threat if the poster turns out to be the supreme being. otherwise this whole enterprise is a joke in search of its punchline.

    this development is particularly chilling in concert with this techdirt article:
    https://www.techdirt.com/articles/20150528/07001931137/uk-government-goes-full-orwell-snoope rs-charter-encryption-backdoors-free-speech-suppression.shtml

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

  • icon
    Ehud Gavron (profile), 20 Jun 2015 @ 8:54am

    AUSA impropriety - who's going to charge him with a crime?

    Niemoller...
    "Then they came for me—and there was no one left to speak for me."

    This is the US DoJ and AUSA Velamoor overreaching US Constitutional law about
    - freedom of speech
    - prior restraint
    and CDA wrt
    - Reason.com not being responsible for the content
    and finally
    - threats to reason.com for violating an order not in place at the time

    WHO WILL SPEAK FOR THESE PEOPLE NOW? Because if you don't get the gist of the topic, ALREADY people are being silenced before they CAN speak for others or themselves.

    This gross overreach isn't a one-time thing (the Techdirt article is instructive on the grand jury abuse) and the AUSA running it [because judge dissed] needs to be sent back to repeat law school.

    E

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

  • identicon
    Anonymous Coward, 20 Jun 2015 @ 10:49am

    needs to be sent back to repeat law school

    nothing wrong with his schooling. he is operating under a set of laws that isn't written down.

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

  • identicon
    GEMont, 20 Jun 2015 @ 11:42am

    Fascism Fights Back

    "Once those charged face a judge, they may find the indictments tossed, but that's a long, dark road to travel just for talking about bullets, woodchippers and hell's special places in a comment thread. "

    Matters not. The USG has successfully fired another shot across the bow of free speech, showing the public that Constitutional Rights are a thing of the past and that the USG is willing to go to any lengths to end the two most deadly dangers to its fascist agenda - free speech and anonymity on the internet.

    In other words, the USG has once again, successfully chilled free speech, without facing any consequences for its criminal actions, which will only embolden its members to escalate their efforts to stifle free speech and end internet anonymity.

    And once again, the American Public is without a voice, without a direction, unable to corral its fascist government, or stop its quickly escalating erosion of constitutional and human rights.

    Exactly as planned.

    Good thing there are no successful conspiracies eh.

    ---

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

    • identicon
      Anonymous Coward, 21 Jun 2015 @ 10:24am

      Re: Fascism Fights Back

      all governments are a one way street to fascism

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

      • identicon
        GEMont, 22 Jun 2015 @ 4:10pm

        Re: Re: Fascism Fights Back

        Actually, that is 100% correct.

        Fascism is merely the end state of all government run civilizations and has in the past been the primary cause of all failed civilizations, although the winner's version of events we call history - written by the very fascists who have corrupted each civilization into fascism and the inevitable entropic dissolution that follows - would beg to differ.

        To put it as simply as possible: Government is a gathering of the wealthy families of a nation, who sole purpose is to increase their members' and friends' income and power, at the expense of the population they oversee.

        The members of a government create crisis and "situations" that will maintain their apparent necessity to the subject population and if worse comes to worse and their scam is about to be fully exposed, they start a war, allowing them to alter the laws and eliminate all those who threatened the scam's continuity.

        The War on Terror is exactly that, and the global surveillance program is really nothing more than the newest means of killing off, or otherwise insuring the competition and all threats to the current fascist-scam are either eliminated, or coerced into control through blackmail.

        Fascism is simply what you have when the Merchants take over the Government - when the merchant becomes king.

        The wealthy, knowing only one game, alter the laws through government, to eradicate any legal blockages to their rampant and unfettered profiteering. Government, being composed of the wealthy-on-vacation-from-business, are more than willing to accommodate anything that makes their own businesses more lucrative.

        Once the press and media is fully under the control of the members of the fascist movement, it becomes safe to blatantly remove laws preventing exploitation, while broadcasting the "truth" of a convenient scapegoat for the problems this process creates - crime, poverty, drugs, foreigners, weirdoes, truthers, vaxxers, foreign religions, foreign governments... an endless list to choose from, and all of them acceptable to most people as "good reason" to hate someone other than the criminals in office.

        This process of accelerated exploitation due to lax laws or lack of preventative laws, creates large scale poverty as the wealthy seek both to lower the costs of employees and raise the prices of products and services.

        Poverty creates Crime, as the poor must have money to survive and have no other recourse than to seek out a criminal occupation in a world where employment is limited to only the people who want to aid the fascist process - minions - and this in turn creates the rationale for the wealthy to create a larger and larger police force to protect their wealth from those they are draining, who have turned to crime as a way of life.

        This is how a police state comes into being, and because the enemy is actually the very people in our own society we have been educated to look up to - the wealthy - the growth of fascism is seldom ever noticed by the population until it is far too late - as is the case today in the USA, Canada, New Zealand, Britain and Australia.

        Dissolution of a nation is almost guaranteed once Fascism gets a foothold, and there is no real deterrent to the process, because the fascists can simply pack up their Leer Jets with their "local" valuables, (their money and most of their valuables are already in vaults in foreign lands), and move to another country - once the victim of their machinations "falls into the sea" - where they will be free to start the process once again in a new land.

        Of course, everyone already knew all this right. :)

        ---

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

        • identicon
          Pragmatic, 23 Jun 2015 @ 5:53am

          Re: Re: Re: Fascism Fights Back

          I should be arguing, but... :(

          The best we can do is keep pushing back as hard as we can. We know pressure works, and no government can exist without the consent of the people.

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

          • identicon
            GEMont, 26 Jun 2015 @ 1:17pm

            Re: Re: Re: Re: Fascism Fights Back

            "I should be arguing, but... :("

            Thanks. Best giggle I've had this month.

            Not arguing might indeed get you a cold shoulder or worse from my anti-fan club here.

            However, you are absolutely right. Even a dictatorship depends entirely on its captive population remaining afraid and obedient, going to work every day to produce the goods and perform the services that creates the wealth of the rich and well placed.

            The labors of the poor and middle class are the source of the nourishment that the wealthy eat daily and without which they cannot exist.

            The power of the public is astounding. By simply boycotting a company unanimously for a month, the public could bring down the largest of the Evil Corporations.

            Its takes solidarity however, and it is exactly that solidarity that fascism destroys with its See and Tell programs.

            Sadly most rebellion is started by a small, scattered number of citizens and only after the gloves come off does the majority get involved.

            Considering how entrenched the fascists in America have become and how much of America's infrastructure is now completely corrupted, I think it will take a fairly large and united public front to even slow the process down.

            The Blood of Patriots.

            My problem with revolution is however, that they always - like a spot on a wheel - return to precisely the same place they started from, accomplishing nothing more than creating a new batch of soon-to-be-dictators at the helm of a ship heading on the exact same bearing as its predecessor.

            ---

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

  • identicon
    Quixote, 20 Jun 2015 @ 9:12pm

    True, this is federal court, but who says the indictments will be tossed?

    Come now, these menacing statements posted on Reason were not "normal internet comment thread hyperbole," any more than the criminally deceitful emails sent by a "satirist" in New York were mere poor efforts at parody or blustery expressions of anger. See the documentation of America's leading criminal satire case at:

    http://raphaelgolbtrial.wordpress.com/

    And, lest my remark be misunderstood, I believe it is worth pointing out that when we don't stand up for everyone's rights, we should not be surprised when our own rights end up getting trampled on with big black boots.

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

  • identicon
    Anonymous Coward, 21 Jun 2015 @ 6:17am

    YAIDF (Yet Another Internet Defense Fund)

    Ok. Who's getting locked up THIS time, and where do we send the money?

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

  • identicon
    The Bill Of Rights, 21 Jun 2015 @ 7:25am

    Dept. of Injustice

    It's not just Reason.com - remember when US Attorney Carmen Ortiz and AUSA Steve Heymann drove Aaron Schwartz to suicide with bogus charges? And then the people signed two White House petitions to fire them both, and the White House ignored both petitions for TWO YEARS and then finally responded that they would disregard both petitions?

    http://www.computerworld.com/article/2866549/white-house-declines-to-act-on-petitions-to-f ire-aaron-swartz-prosecutors.html

    And the ongoing fiasco with Kim DotCom, who has been hit with bogus charges and falsely designated as a fugitive (even though he has never even set foot in this country) and has had his assets seized and his computer hard drives unlawfully sent to the FBI, and has been dragged through years of extradition proceedings, just for running a cloud storage site which quickly responded to DMCA requests?

    http://gizmodo.com/the-fbi-has-to-give-kim-dotcom-his-hard-drives-back-510651033

    http://moth erboard.vice.com/blog/the-fbi-has-to-return-kim-dotcoms-hard-drives

    http://torrentfreak.com/fbi-must- return-kim-dotcoms-illegally-seized-property-130531/

    Can there be any doubt whatsoever that the Department of Injustice needs to be cleaned out completely (100% of staff fired) and completely restaffed with civil libertarians?

    The problem is that Obama's White House just doesn't care. The guy we elected BECAUSE HE WAS A DEMOCRAT AND A PROFESSOR OF CONSTITUTIONAL LAW WHO WE THOUGHT WOULD UPHOLD THE BILL OF RIGHTS - the guy who promised the "most transparent administration ever" and then evilly persecuted Chelsea Manning, Julian Assange and Edward Snowden - is only too happy to piss on the Constitution himself every chance he gets, now that he's in office...

    Absolute power corrupts absolutely.

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

    • identicon
      GEMont, 21 Jun 2015 @ 9:13am

      Re: Dept. of Injustice

      "...is only too happy to piss on the Constitution himself every chance he gets..."

      Methinks ye have missed a wee spot there.

      Ye see, there be no need for O-Bomber to pee on the CONstitution, because right after 9/11, the USG gave itself the power to revisit the CONstitution and rethink the meaning of the words therein - with Terrorism as the theme.

      And what might be the new (secret) title of the Newly Revisited CONstitution??

      Knowing these guys' sense of humor from the Snowden Expose, the inside-joke title is very likely the opposite of the old title, so replace CON with PRO, and you have The PROstitution of The United States.

      I can't think of a more fitting label for the document that legally allows international billioniares to rape America and the world - to rob, incarcerate, or kill its citizens at will, legally - that turns the world's population into their bitch.

      And you can absolutely bet that the Prostitution of the United States, gives the USG the power to do any damn thing it deems "necessary", without any need for a popular vote or the People's permission/approval, because ...terrorists...

      Barracks O-Bomber is a Constitutional Scholar - just the man needed to fine tune the new interpretation of the Old Constitution and make the Prostitution of the Earth a reality for Billionaire Fascists the world over.

      They aren't peeing on this document.

      They worship it.

      Its their new Magna Cart Blanche

      ---

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

  • icon
    Ima Dork (profile), 21 Jun 2015 @ 4:28pm

    The DOJ's up to it again

    Gag me with a spoon.

    Maybe it's time DOJ was understood to mean Dumb Old Joke, since that's what they seem to be becoming, between the antics of the FBI, the total disregard that DOJ has for public and congressional sentiment about stopping mass domestic spying, and so on. A dumb old joke, but one that's increasingly reckless, out of control and dangerous to the constitutional and legal rights of American citizens and others.

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

  • identicon
    Anonymous Coward, 22 Jun 2015 @ 2:25pm

    I lurk every day and sometimes comment at Reason's blog.

    The comment area is fun, irreverent, and freewheeling. Sometimes over the top. But it is also more intellectually stimulating that any other comment forum I have ever read anywhere.

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


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