Feds menace free speech as Reason magazine ordered to identify commenters and remain mum.
Glenn Harlan Reynolds
June 21, 2015
What do you call it when a prosecutor forces a magazine to hand over confidential information — and then orders the magazine not to publish anything about it? Some might call it heavy-handed judicial overreach, but lately it's just another day at the office for those who purport to administer justice.
The magazine is Reason, a well-known libertarian publication that has been around for decades. The confidential information was IP and server information that would allow federal authorities to identify certain blog commenters to a story about the verdict and sentence in the Silk Road case. Though I and other legal experts who've looked at the situation don't think those comments could plausibly be considered "true threats" (and thus outside the protection of the First Amendment), Preet Bharara, the U.S. Attorney for the Southern District of New York, and Assistant U.S. Attorney Niketh Velamoor served Reason with a subpoena ordering it to turn over the IP addresses and other identifying information for those commenters.
Of course, the First Amendment term for "brush-back pitch" is "chilling effect." The goal, presumably, is to discourage speech protected under the First Amendment, but disliked by authorities. That's an odd thing from a prosecutor who is sworn to uphold the Constitution — but, these days, perhaps not as odd as all that. Add this case to the mounting pile of evidence that out-of-control prosecutors need to be reined in. Starting, perhaps, with the Southern District of New York.