EDITORIAL: A new federal assault on First Amendment
The First Amendment protects the right of the people and the press to criticize the government, especially when their opinions are presented in highly offensive terms. But the First Amendment does not prevent the government from trying to undermine and deny that right whenever it suits the bureaucracy’s interests. The Department of Justice’s recent treatment of Reason magazine and some commenters on its website highlights federal hostility to dissent and the lengths Washington will go to chill free speech.
The digital age has allowed Washington to monitor and collect more information about Americans than ever before in the name of preventing terrorism. But even as unpopular surveillance, job-killing regulation, political interventions and heavy-handed prosecutions boost public unhappiness with the federal government, the state increasingly views core political speech and disclosure of its activities as national security threats.
Earlier this month, U.S. District Judge Katherine Forrest sentenced 31-year-old Ross Ulbricht to two life sentences for running a global criminal operation through an encrypted “darknet.” Reason wrote about the sentence, which was condemned by several readers in online comments. “Its (sic) judges like these that should be taken out back and shot,” one wrote. “Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first,” another wrote, referencing the movie “Fargo.” Other comments were tamer: “I hope there is a special place in hell reserved for that horrible woman,” and “I’d prefer a hellish place on Earth be reserved for her as well.”
The remarks were normal for Internet comment boards, which can feature far harsher language. But without question, the comments were lawful despite their threatening tone. Coincidentally, just days after Ulbricht was sentenced, the U.S. Supreme Court strengthened protections for speech on the Internet, ruling in Elonis v. United States that a reasonable person’s interpretation of threatening language on social media isn’t enough to warrant a conviction. The commenter’s intent and mental state matter more. Clearly, the comments on Reason’s website were criticism of the judge, not a call to assassinate her.
Regardless, federal prosecutors Preet Bharara and Niketh Velamoor served Reason with a grand jury subpoena, ordering the publication to turn over identifying information on those commenters and others. And after Reason notified the commenters of the subpoena, Mr. Velamoor obtained a gag order that prevented Reason from further disclosing the subpoena. Such prior restraint is unconstitutional. So the government managed to smack down free speech and the free press in a single case. (The gag order eventually was lifted.)
Washington never tires of testing — and validating — the brilliant work of the Founding Fathers. They wrote the Bill of Rights to guarantee Americans’ core individual freedoms, an open society and a government that answered to the people (not the other way around). Although any prosecution of the Reason commenters won’t pass constitutional muster, there is nothing to stop the government from dragging them in front of a grand jury and obtaining an indictment out of spite.
The government can argue it is merely conducting an investigation, but in practice, it is punishing and actively discouraging free speech. The Justice Department is the world’s largest, richest, most powerful law firm. Unlike the people they prosecute, U.S. attorneys have unlimited resources and time. They can wipe out households without winning a conviction. Free speech certainly isn’t free if the government doesn’t like it.
If officials really want to reduce the number of nasty comments directed at government, they can start by ceasing their unconstitutional attacks on the First Amendment.
