Techdirt Has Been Released From A Gag Order Regarding A Federal Investigation Into A Silly Comment

Legal Issues

from the don't-threaten-judges,-yo,-but-don't-over-react-to-comments dept

I’m going to start off this post with a note that, in general, you should not threaten federal judges. I do understand that people often take out their anger on decisions that go in ways they disagree with by insisting that a judge is corrupt or awful or that something ought to be done, and while I understand the impulse and the instinct to vent in that manner, it’s not very productive. Also, as you’ll see below, it creates something of a mess. Meanwhile, it’s only been a year since an angry party from a case showed up at a federal judge’s home and shot and killed her son (and shot and wounded her husband). There is now legislation being proposed to keep judges’ information more private to try to prevent such a thing from happening again.

So, again, don’t threaten a federal judge.

And given all that, it’s really not a huge surprise that the US Marshal service wants to take seriously any potential threats directed at federal judges. The problem, however, is that they aren’t always the best at recognizing what is an actual legitimate threat from some rando just venting about a judge’s decision.

Almost exactly a decade ago, the US Marshals Service reached out to us, asking us to remove a comment. The comment was a stupid comment. It was in response to what we felt was a dumb copyright ruling by a judge — and the (anonymous) commenter quipped “is it time to stop murdering the corrupt yet?” It was dumb, but it was clearly someone sounding off, not making any kind of actual threat. We refused to remove the comment, and we received no further communication from the US Marshals.

Six years ago, the US Marshals service went a step further with Reason. In a story about Silk Road creator, Ross Ulbricht, a bunch of commenters had started making angry comments about judges — including an infamous one about “wood chippers.” The DOJ not only issued a grand jury subpoena to Reason, but separately hit Reason with a gag order preventing it from saying anything about it (though it leaked out).

Over the last few months, we have been barred from telling you that we potentially faced a similar situation. I am now, however, free to tell you that the US Marshals, once again, decided that they wanted to investigate a comment made on our site loosely referring to a federal judge. This happened on a post we did back in April, regarding Judge Alan Albright and his increasingly infamous situation regarding all the patent cases that he has been actively soliciting and refusing to transfer to proper districts in a timely manner.

The first comment on that post wondered whether or not anyone was investigating the apparent “corrupted impartiality” of the judge. That spurred a reply comment stating:

Hell, eventually somebody might decide that it?s cheaper to pay a hitman to just cut a brake line or something than go through discovery in that judge?s court.

So. It seems fairly obvious to me (and hopefully to you), that this comment is not, in any way, advocating for such a thing to happen. Nor is it suggesting a plan to do such a thing. It is noting — as it says — that someone might make that decision. Frankly, this comment didn’t make that much sense to me. But, it’s pretty clearly not a threat.

However, the US Marshals decided to open an investigation into that comment. We received a phone call the morning after the comment was posted, asking to speak with “someone in your subpoena compliance section” of “your legal department” to handle an incoming subpoena. To be clear, we have no legal department, let alone a subpoena compliance section of it. However, what we thankfully have is a very helpful Ken “Popehat” White on speed dial, willing to handle these matters for us.

With help from Ken, we soon received a “preservation letter” demanding that we preserve for a period of 90 days “any and all records and other evidence, including, but not limited to, transaction logs, connection logs and electronic media (uploaded images), in [our] possession relating to…” that comment and the registered user who posted it. We were told to expect a subpoena, and that the US Marshals Service was “in the process of obtaining the appropriate court orders.” In addition, the letter effectively gagged us, saying that we were not to disclose the existence of the letter “in any manner that could alert the user” of the account.

We do not keep our log files for that long, so we actually had to make some temporary changes, and put in place a few technical things to make sure we complied as we awaited for the subpoena. We had every intention of fighting the subpoena, and pointing out just how ridiculous it was. Yes, it’s important for the US Marshals to investigate true threats on judges. But no one could seriously read that comment as a true threat. We ended up waiting out the entire 90 days, and no subpoena arrived. Again with the help of Ken, we reached out to the US Marshals, to note that the 90 days had passed and to let them know that we believed we were no longer bound by the letter. Thankfully, the US Marshals confirmed that they would not be seeking or compelling any information from us, and the preservation letter could be considered “lifted.”

It is a good thing that the US Marshals investigate threats against federal judges. I have no problem with them doing an investigation. And it’s good that they seem to have realized the nature of this comment and decided not to move forward with the subpoena (though, they could have told us earlier…). But, it sure seems like the investigation (and the conclusion that there was no real threat) could have been done relatively quickly without having us need to get our “subpoena compliance section” (thanks Ken!) involved.

Filed Under: comments, gag order, judges, subpoena, us marshals