This whole thing reads like Orwell, starting with the life sentence for Silk Road’s Ross Ulbricht, handed down in May. The excessive nature of that sentence — for the crime of creating a website — got the process described here and here started (reading both is highly recommended, along with the post by LU’s Hans Bader on 10 June), and led to the subpoena of Reason. Ulbricht could have actually dealt drugs himself in the conventional way, and literally killed someone, and gotten a much lighter sentence.
The judge clearly went after him out of visceral horror at his political idea, amplified by how the Web made it possible for him to act on it. See her comments on that head.
“The stated purpose [of the Silk Road] was to be beyond the law. In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts,” she told Ulbricht as she read the sentence, referring to his pseudonym as the Silk Road’s leader. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”
Regardless of how you feel about Ulbricht’s libertarian extremism — and I’m not a fan — it’s not a valid basis for a sentencing decision. The rule of law is only better than anarchy if it actually is the rule of law, meaning there are some accountable constraints on those who wield the power of the state. Maybe, at the end of the appeal process for Ulbricht, there ultimately will be. But the need to appeal in order to get simple, reasonable justice seems to be growing by leaps and bounds these days. (And unlike Ulbricht’s case, this problem leaves a lot of people in limbo for years: their lives in a shambles and their resources gone, even if they haven’t been sentenced or convicted for anything. The legal process itself is a weapon wielded against too many Americans now.)
A judge overreacting wildly to misguided libertarianism is a profoundly disturbing thing, causing the thoughtful person to wonder what other ideas this judge finds punishable with excessive sentences. In any case, it doesn’t take very many politicized rulings from the judiciary for the people to lose respect, to a meaningful degree, for the whole system.
Meanwhile, the development referred to in the subject line is a chilling one. Reason, the libertarian magazine and website, posted a series of articles on the Ulbricht case (you can start here and work back). When the judge handed the sentence down, commenters at Reason online went into overdrive, posting a lot of grisly nonsense about what should be done to the judge, Katherine Forrest.
Aaron Bandler has a sampling at Townhall, and some of the comments are indeed the kind of thing we would delete here at LU. Not everyone would make the same editorial judgment about them; Reason has the filter set wider than many mainstream sites. On the other hand, I’ve seen much worse in some political forums, on both sides of the spectrum. I do recommend reading through the comment excerpts, however, because it was on the basis of these comments that the U.S. Department of Justice got a subpoena issued to Reason for the IDs of the commenters involved.
But — here’s the big “but” — DOJ didn’t make a case that the comments in question constituted actionable threats. (Which they don’t.) DOJ didn’t make any sort of case at all, apparently. It just tried to strong-arm Reason for the commenters’ IDs. Ken White at Popehat (third link in paragraph one) summarizes it thus:
First, the subpoena. Some have argued that the Department of Justice must have had information spurring them to use the grand jury to pierce the anonymity of people engaged in protected political speech. Not so. As Reason’s report shows, Assistant U.S. Attorney Niketh Velamoor never articulated any specific basis to fear the bluster of these commenters — any more than he did when I spoke to him.
Saturday I interviewed Mike Alissi, publisher of Reason, who confirmed that Velamoor never suggested that he had any basis to view these as true threats. In fact, he seemed uninterested in the distinction between protected speech and true threats, and refused to narrow the subpoena to carve out the patently non-threatening “special place in hell” commenter. There is no secret ticking time bomb, no wizard with a woodchipper, no classified justification.
This was the Department of Justice targeting speech because it could.
Reason didn’t take this lying down. So DOJ had a gag order slapped on Reason, to prevent its writers from clarifying for the public what was being done. Keep in mind, DOJ wasn’t after Reason or its writers; DOJ was going after the commenters — people who expressed opinions at a website; people whom DOJ never made a case against — and trying to keep the probe for their identities quiet, as if it was going after the world’s most dangerous criminals.
Ken White skewers the gag order for being utterly non-specific about why Reason’s journalistic speech had to be shut down. And it really is hilarious: the order literally quotes, verbatim, the five generic justifications from the federal statute for such a gag order, without saying which, if any, represents the actual, concrete reason for the order being handed down. Such an order should have been lifted for sheer bogusness, but what actually happened was that the Assistant U.S. Attorney handling the case, Niketh Velamoor, got the gag order lifted — after an 11-day delay — because the subpoena had been released to the public anyway, so the gag order was meaningless.
White also points out that AUSA Velamoor contacted Reason’s publisher directly to inform him of the gag order, instead of going through counsel: a breach of ethics that private counsel could never get away with (all emphases in original).
Gillespie and Welch also describe how AUSA Velamoor conveyed the gag order. Reason’s attorney, Gayle Sproul, called Velamoor, told him that she represented Reason, and tried fruitlessly to reason with him. Velamoor blustered, then sought and obtained a gag order. But he didn’t send it to Reason’s attorney, with whom he had spoken only hours before. Instead, he sent it directly to Alissi, Reason’s publisher…
Niketh Velamoor had three purposes in sending that message directly to Alissi: to vent the petulance of momentarily thwarted power, to intimidate Reason by threatening it directly, and to undermine the relationship between Reason and its attorney. …
If I did that, I’d be disciplined. If Gayle Sproul did it, she’d be disciplined. That’s because nearly every jurisdiction prohibits, and recognizes as unethical, directly contacting a client who is represented by counsel on the subject of your communication.
But that’s not even the extent of the unprofessional hooliganism Velamoor indulged in:
Reason’s staff was concerned from the start. Velamoor delivered the subpoena by calling the Washington D.C. office of Reason, barking at a God-damned intern (bless the poor intern’s heart), and demanding know where he could send a federal grand jury subpoena.
No offense, Mr. Velamoor: I was an entitled, arrogant little douchesquirt when I was a federal prosecutor, too. You can hardly fail to be when you’re handed such power over people’s lives at twenty-six. “Power doesn’t always understand that it is power,” [Reason editor Nick] Gillespie says aptly.
When White was an entitled, arrogant little douchesquirt, however, I suspect he held himself to a narrower — higher — standard of prosecutorial restraint. He probably didn’t go after protected speech — however repellent and indefensible — just because he or someone else in the federal government didn’t like it. I doubt he unleashed on innocent citizens an expensive and intimidating process that left them shaken and uncertain whether there was another shoe that might fall.
White summarizes the impact of DOJ’s heavy-handedness here:
Alissi and Gillespie both viewed the subpoena, and the gag order, and the purported investigation of a leak as ridiculous and bizarre — a preposterous waste of resources. Gillespie called the accusations “comical” and admitted his first response was incredulity, building to rage. But what was both deeply concerning and infuriating was that it really didn’t matter whether Velamoor was proceeding from malice, from bias, from indifference, from kissing up to a judge, or from sheer incompetence. He had the power to destroy lives no matter how or why he exercised it.
Reason publisher Mike Alissi gets the feature line about this event:
“Being innocent doesn’t mean you’re safe,” point[s] out Alissi.
Aaron Bandler asks:
That last quote by Alissi… how are we a free society when a quote like that just rings true?
How indeed? We need not embrace anarchy, or even libertarianism, to judge for ourselves that being subject to the whims of Katherine Forrest and Niketh Velamoor is incompatible with the ordered liberty our American heritage says government is intended to protect.
In the light of DOJ’s behavior in this instance, Judge Forrest’s horror at Ross Ulbricht looks especially petty and vindictive, rather than principled. In the context of this drama, the actions of Forrest and Velamoor represent “law and order,” as against the “deeply troubling, terribly misguided, dangerous” anarchism of Ross Ulbricht. Not an impressive comparison, to say the least.
Forrest is philosophically incoherent, moreover, as well as arbitrary. In her sentencing comments, implying that “democracy” is the basis for the law and order that protect society, she invokes a garbled emotional shorthand — and in doing so, she brings in a premise that America’s Founders rejected vigorously. She isn’t talking about the same idea of limited government — of rights, of law and order, of America — that our citizens once understood and took for granted.
The more concrete abuse of power here is the one Reason was hit with by the DOJ. But Forrest’s sentence for Ross Ulbricht actually bothers me as much, if not more, for what it says about where a generation of judges may be coming from. (She’s 51, according to her Wikipedia entry, and was appointed to the federal bench by Obama in 2011.) Forrest’s illiberal small-mindedness about intellectual freedom appears to be comprehensive. Her concept of what the judiciary is for is quite alarming: she imposed a grossly excessive sentence because of the implications of a defendant’s idea, very much in the manner of a religious authority from half a millennium ago burning a heretic at the stake.
If you don’t believe that God really is bigger than humanity’s problems, the coming days probably look pretty scary.