At the Foundation for Economic Education, Ryan Radia discusses the free-speech-quashing subpoena issued by a federal prosecutor in New York state:
In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.
A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.
One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”
Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”
This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.
Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.
Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.