Two killers are on the loose, having escaped from a New York prison, but federal prosecutors in New York are hunting for some individuals who posted comments to a blog post over at the Reason web site. Stay with me as I try to explain…
By way of background, Reason’s Nick Gillespie wrote a blog post about the federal prosecution of the man behind the Silk Road project, a sophisticated narcotics distribution operation. (If you’re tempted to comment on that post, please finish reading this post first. Seriously.) That man, Ross Ulbricht, was recently sentenced to life in prison, without the possibility of parole. Like Cato, Reason has been a long time critic of the drug war. Thus, most of Reason’s web site readers believe that nearly all criminal prosecutions for narcotics violations are misguided and unjust. So it was no surprise to learn that the comments to Gillespie’s post had harsh things to say about the government, including the sentencing judge, in that case. Some evidently went so far as to say the judge should be killed. Enter the federal government with subpoenas to Reason so agents can track down those anonymous commentators for further investigation.
Ken White at Popehat broke the story and has a very good post that dismantles the government’s actions in detail here (be advised that there is some profanity).
I have not spoken to our friends at Reason on this matter, but it seems safe to say that they are likely outraged by this subpoena. (Remember that failure to comply with a subpoena will be considered a federal crime! Being threatened in these circumstances is outrageous!) They are being asked (excuse me, ordered) to assist the government to track down and harass (perhaps even arrest and prosecute) some of their readers. And for what? Expressing opinions that are supposed to be protected by the Constitution. Our friends can try to fight the subpoena by going to court and having it quashed, but that could entail thousands of dollars in attorneys fees – and the chances of success are not that great.
Perhaps as the word gets around, the feds will withdraw the subpoena under pressure. That might happen, but the downside of that is that this subpoena power will, in law, remain virtually unchecked. When will it resurface, and against who? Maybe a person or organization that is in an even weaker position to resist and fight back in court. Establishing a legal precedent would be desirable here, but, again, it could be very expensive to wage a court battle.
For Cato scholarship regarding the power of grand juries, go here.
For another example of what New York federal prosecutors think about their power vis-a-vis free speech, go here.