from the gag-order-problem dept
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....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:
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.
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.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.
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.
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.
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.