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DOJ vs. Reason.com Commenters: When Everything Is Deemed a "Threat"

The Supreme Court has said that true threats can be banned without violating the First Amendment, but that doesn’t mean that hyperbolic rants are unprotected just because they express a yearning for someone’s demise. That doesn’t make them a true threat. For example, the Supreme Court ruled on the issue in Watts v. United States (1969). Robert Watts, a young black man, stated during a protest in Washington, D.C.:

I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.

The Supreme Court reversed his conviction for making threats, ruling that Watts’ statement was political hyperbole rather than a true threat. “We agree with [Watts] that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’”

But prosecutors sometimes confuse hyperbolic dissent with true threats. School officials are even worse. They equate even mild academic references to violent protests in the distant past with unprotected threats.

For example, Oakton Community College (OCC) concluded that a one-sentence “May Day” email referencing the Haymarket Riot sent by a faculty member to several colleagues constituted a “true threat” to the college president. On May 1, Chester Kulis sent an email to OCC colleagues that read, “Have a happy MAY DAY when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” Lawyers for the Chicago-area college argue that the email, which commemorated the riot, thus threatened violence.

Similarly, federal prosecutors in the Southern District of New York are using a subpoena to identify anonymous commenters on a Silk Road post at Reason.com, notes First Amendment lawyer Ken White:

The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution.  . . .Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet? Because these twerps mouthed off about a judge. . .. The subpoena commands Reason to provide the grand jury "any and all identifying information" Reason has about participants in what the subpoena calls a "chat."

The "chat" in question is a comment thread on Nick Gillespie's May 31, 2015 article about Ross "Dread Pirate Roberts" Ulbricht's plea for leniency to the judge who would sentence him in the Silk Road prosecution. That plea, we know now, failed, as Ulbricht received a life sentence, with no possibility of parole.

Several commenters on the post found the sentence unjust, and vented their feelings in a rough manner. The grand jury subpoena specifies their comments and demands that Reason.com produce any identifying information on them.

Among those comments are the following examples of speech plainly protected under the First Amendment, such as:

Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.

AlanI5.31.15 @ 12:11PMIIt
There is.

Product PlacementI5.31.15 @ 1:22PMIIt
I'd prefer a hellish place on Earth be reserved for her as well.

Others commenters explicitly said ‘judges like these’ should die. But yearning for a government official’s death is plainly First Amendment protected speech. For example, in Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001), a federal appeals court ruled that a professor’s writings and illustrations in a campus newspaper expressing a yearning for the college president’s death were protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.” That including referring to a “a two-ton slate of polished granite which I hope to someday drop in Raghu Mathur's head,” a reference to “the urge to go postal,” and an illustration showing “three shrunken people assembling a rifle, with one pointing it outward.”

If such speech is protected even for a public employee, whose rights are more limited than a citizen in society at large, then by definition they are protected for a blog commenter at Reason.

Other comments specified by the New York prosecutors were more intemperate (see White’s Popehat blog for a full listing), but as White notes, even they were not true threats based on the information available:

“True threat analysis always examines context. Here, the context strongly weighs in favor of hyperbole. The comments are on the Internet,  a wretched hive of scum, villainy, and gaseous smack talk. The are on a political blog, about a judicial-political story; such stories are widely known to draw such bluster. They are specifically at Reason.com, a site with excellent content but cursed with a group of commenters who think such trash talk is amusing. The ‘threats" do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about ‘wood chippers’ and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent. Therefore, even the one that is closest to a threat — "It's judges like these that will be taken out back and shot" isn't a true threat.

Additional commentary about prosecutors’ subpoena to Reason is found at the The Wall Street Journal, the Cato Institute, and Tech Dirt.