Guest-hosting The Rush Limbaugh Show last week, I mentioned an outrageous and very direct assault on free speech by the Government of the United States. As I said on the air, federal prosecutors are demanding Reason, the libertarian mag, cough up any identifying information on readers who posted comments in relation to the Silk Road case.
That was the trial in which the Silk Road drugs impresario, Ross Ulbricht, wound up being sentenced to life in prison without the possibility of parole. This would not happen, obviously, in Sweden or New Zealand or anywhere else, but even by the standards of American courtrooms it was unusual: Judge Katherine Forrest gave Ulbricht a tougher sentence than the prosecution had asked for. Commenters at Reason, who aren't big on the "war" on drugs, were unimpressed by Judge Forrest:
Its judges like these that should be taken out back and shot.
It's judges like these that will be taken out back and shot. FTFY.
Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.
Why do it out back? Shoot them out front, on the steps of the courthouse.
I hope there is a special place in hell reserved for that horrible woman.
I'd prefer a hellish place on Earth be reserved for her as well.
F*ck that. I don't want to pay for that c*nt's food, housing, and medical. Send her through the wood chipper.
On the basis of these eight comments, US Attorney Preet Bharara and Assistant US Attorney Niketh Velamoor of the Southern District of New York got a subpoena ordering Reason to cough up the identifying information on their commenters. Which is a bit odd, as three of the comments had links back to their authors' personal web pages, where Mr Velamoor could have contacted them direct.
I learned of this from a post by Popehat. Full disclosure: in re Michael E Mann's ongoing defamation suit against me, Popehat thinks I'm a total Chumpy McArsepants. We disagree on legal strategy: He thinks I should file a motion arguing for a reconsideration of the second trial judge's denial of an interlocutory appeal of the first trial judge's denial of an expedited hearing on whether the response to the amended complaint can be denied before the appeal on whether the amended response to the original complaint is appealable has been heard by the appellate court. Whereas I'd rather burn down the courthouse. (Actually, that's already been tried. I was out of the country, your honor. And I believe it was Oliver Wendell Holmes who said there's no right to shout "Fire!" in a crowded theatre but you can shout "Crowd!" in a fiery courthouse.)
Anyway, I mentioned this on air, and afterwards it occurred to me that the Reason chaps were being awfully quiet about things - which isn't usually Matt Welch's or Nick Gillespie's style. It turns out that, aside from the subpoena, they'd also been slapped with a gag order by this same prosecutor, Niketh Velamoor. The gag order has now been lifted - not because this goon Velamoor has decided to straighten up and fly right, but because once Popehat uncovered the story and others picked it up there was no longer any secrecy to protect. So Velamoor moved to lift it before Reason could go to court to get it booted and enjoy a fleeting sense of victory.
So now Reason is talking about the case, and I hope they'll keep talking about it - because it's a textbook example of the caprices of federal justice.
First, there's no case. A desire that someone be consigned to spend the hereafter in the fires of hell is not a threat. The woodchipper thing is a pop-culture allusion to a scene in the motion picture Fargo. And on the taken-out-and-shot stuff "judges like these should be" is not the same as "Judge Fred Schmuck of 27 Elm Street will be". This is not to say it's not rough stuff and of a piece with a vulgar and witless age, but "Go to hell, bitch!" and "Hanging's too good for you" and the usual Internet blowhardry is protected by the First Amendment.
But whoop-de-doo. My description of Michael E Mann's "hockey stick" graph is also protected speech, and so, after it's cost me half-a-decade of my life and a significant seven-figure sum, some judge marginally less inept than Natalia Combs Greene (or, if we take the really long road, five out of nine judges, and a significant eight-figure sum) will rule that it was legal for me to say what I said. And then everyone will say, "Well, the process worked" - as some boobs did up north after Maclean's and I saw off no fewer than three "human rights" commissions.
Hard to believe even people who've never been in court can believe that that's the process "working". John Hayward quotes a familiar line:
As author Mark Steyn, embroiled in his own ridiculous Kafka nightmare in defense of his free speech rights, has observed: "The process is the punishment." The Reason authors point out that fighting the government in a situation like this can be enormously expensive and time-consuming. There is virtually no way to "quash" such a flimsy investigation at the outset; once the government pulls you into its legal roller coaster, you have to take the ride.
That's true. As I wrote about my old boss Conrad Black some years ago:
The federal justice system is a bit like one of those unmanned drones President Obama is so fond of using on the unfortunate villagers of Waziristan. Once it's locked on to you and your coordinates are in the system, it's hard to get it called off.
And they hold all the cards. For example, how did Attorney Bharara and Assistant Attorney Velamoor obtain this gag order? The Government can get one if it can prove any of the following is likely to occur:
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
Okay, so which one of the five possible justifications did the judge plump for in the Reason case? Well, whaddaya know, it's a full house!
1. The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.
Let's turn once more to Popehat:
This was not a review by a neutral judicial officer; it was a rubber stamp, obediently regurgitating back the statutory factors without reflection or any finding of fact. The Magistrate took the government's word for it, because of course, the government never misleads federal judges.
Note the "one or more of the following," showing that the finding is formulaic, not based on anything specific. Unduly delaying a trial? How could disclosing the subpoena possibly delay a trial when there are no charges, and never will be any charges because the comments being investigated are so clearly protected by the First Amendment? No. The statutory factors aren't all there because AUSA Velamoor presented actual particularized evidence of them and Judge Maas agreed based on evidence that they were present; they're there because they are in the statute and the government and the court, hand in hand, are just checking off boxes on a form. There is no hint that Judge Maas, let alone Velamoor, gave any consideration to the fact that the targets of the gag order were journalists, or that the underlying subpoena poses grave First Amendment concerns. Here, the theory that executive power will be checked by the court was a farce.
You can buy a rubber stamp for five bucks. Your tax dollars rent a Magistrate's rubber stamp at a hundred fifty thousand a year.
Preach it, Your Holy Millineriness!
Who is this judge Frank Maas? Well, by amazing coincidence, he's a colleague of Katherine Forrest, the judge who attracted the ire of Reason's commenters. Their chambers are in the same building.
There is no reason for Reason to be under investigation. There are plenty of reasons why Judge Maas, Attorney Bharara and Assistant Attorney Velamoor should be. As Popehat concludes:
Niketh Velamoor is a goon hiding behind a badge.
Indeed. Reason's attorney Gayle Sproul called Assistant Goon Velamoor to talk over the case. Assistant Goon Velamoor then went and got his gag order yet did not send it to Counselor Sproul but to Reason's publisher, Mr Alissi, direct. Popehat again:
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.
That's right. I know next to nothing about the law, as Popehat will be the first to tell you, but I'm in enough suits at any one time that, of the two or three things I do know, one is that it's a serious breach for one lawyer to bypass the other lawyer and contact the opposing party directly. If me or my lawyer were to call Michael Mann up at home to run a draft pleading by him, the court would come down on us very hard. No doubt Frank Rubber-Stamp Maas will take a more indulgent view. But when the Government does it, it's even worse: it's an exercise in pure muscle.
None of this is unusual. It's what happens when you catch the eye of a malodorous prosecutocracy. On its face, the United States Government is disregarding both the restraints on its own power and the proper administration of justice. The Washington Post, The Los Angeles Times et al eventually got on the right side in my own case. Now that Reason's guys are free to speak, it would be heartening to see this story get a bit more coverage, and the activities of Assistant Goon Velamoor exposed to bright, cleansing sunlight.
As Popehat says, they do this because they can. So more people need to stand up and tell them they can't.
~On Wednesday, I'll be joining Hannity on Fox News, coast to coast at 10pm Eastern/7pm Pacific.