Elonis, Reason, and Federal Subpoena Power

Ever said something nasty to someone else on the Internet?  Thought so.

You may want to reconsider the next time you do that, because now Federal Prosecutors are having their say in who can question them and who cannot.

This article by Ken White at Popehat explains the nuts and bolts of it better than I can, and you really ought to read it.  For those of you who do not care for such things, this is a brief summation:

Reason.com posted an article about the sentencing of Silk Road kingpin Ross Ulbricht.  It got a bit of negative backlash against the judge in the comments section, with people using the power of Internet anonymity to say this judge should be shot, shot in front of the courthouse, and fed through a wood chipper, among other things.  Now an AUSA for the Southern District of New York is sending Reason.com a subpoena for the identities of these commenters, and information beyond that scope to other organizations for the purpose of beginning a grand jury investigation against these commenters.  The purpose of doing so is to determine whether these commenters violated a federal law against interstate threats, and whether these comments were in violation of 18 USC § 115(a), which prohibits threatening federal judges.

What constitutes a “true threat?” Well, there’s a lovely little bit right here that explains that for you:

True Threats” are those threats that are outside the protection of the First Amendment; they are not mere political hyperbole or bluster. For instance, in 1967, when Mr. Watts said that if he were drafted the first man he’d want in his rifle sights was President Lyndon B. Johnson, that wasn’t a true threat: it was conditional political hyperbole. In other words, it was mere angry bluster of the sort no reasonable person would take to be a serious threat.3

Comments on the Internet are rarely ever true threats.  This is the domain of the keyboard warrior, the person who regularly blusters about raping, murdering, and torturing those who disagree with them or who in their eyes are considered Wrong On The Internet.  I’d submit as well that most every comment on a blog with this sort of violent nature should not be considered a “true threat” as in many cases there will never be an action taken on said threats.  At least 97% of it is simply juvenile mouth breathing, and should be taken as such.

Oddly enough, this investigation comes right on the heels of the Supreme Court’s decision in Elonis v. United States, where the Supremes had a chance to help the legal world understand what “true threats” in the eyes of the law really were.  They didn’t, and disappointingly collectively punted the issue back to the courts by essentially saying the standard for true threats required more than subjective intent, but didn’t really say what that something more was.  Again, I refer  you out to an excellent post by Tamara Tabo at Mimesis Law and another excellent “Lawsplainer” by Ken White at Popehat if you want to learn more about Elonis and how rap lyrics might not be considered “true threats.”  The decision by the Supremes in Elonis has been analyzed time and time again by far better experts than I could ever hope to be, and I encourage you to check both pieces out.

The thing that strikes me as disturbing about all of this is the way the federal prosecutor is handling this matter in the wake of Elonis.  We know the High Court has said a “true threat” is something that requires more than subjective intent, but we don’t know what yet constitutes that “something more.”  Now in the wake of a federal judge getting some feels hurt, AUSAs are using their subpoena power to test the waters of how far this new punt by the Supremes will go.  This is not a reason to test the standard just set by Elonis, and a federal judge is insulated from many of the facets of life so he or she can do their job despite the criticisms that are meted out.  Yet now–with Elonis on the books–the AUSA’s office of the Southern District of New York is attempting to test the waters to see where they can hand down convictions.

This is dangerous.  I’d encourage anyone reading this to keep an eye on this developing story, because if this investigation goes to a trial we’ve set ourselves a bad standard for free speech.

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