“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced.”
— Justice Louis Brandeis
Free speech should be practiced only by those who are ready to deal with the consequences, which just might include a knock on the door by a friendly federal investigator wanting to know if you posted an anonymous comment on a Web site. Were you advocating violence or confessing to breaking the federal tax laws?
This is not a hypothetical.
On May 26 the Review-Journal published an article about an ongoing federal tax evasion trial. The primary defendant, Las Vegan Robert Kahre, stands accused of tax fraud for using the rather inventive argument that he could pay people in U.S. minted gold and silver coins based on their precious metal value but for tax purposes use their face value, which is many times less.
The story was posted on our Web site. When last I checked nearly 100 comments were appended to it, running the gamut from the lucid to the ludicrous.
This past week the newspaper was served with a grand jury subpoena from the U.S. attorney’s office demanding that we turn over all records pertaining to those postings, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers … the IP address,” et (kitchen sink) cetera.
Tantamount to killing a gnat with an A-bomb.
There was no indication what they were looking for or what crime, if any, was being investigated, just a blanket subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case.
Sure, some of the comments were a bit rough, but criminal?
One person who signed himself “Louis D. Brandeis” called federal prosecutor Greg Damm, whose name is on the subpoena, “evil incarnate and everything that is against the American justice system.”
“Christian Patriot” wrote a couple days later, “I suggest we go back to a gold and silver standard, which would immediately wipe out the national debt, not charge us interest for their toilet paper, or better yet, I’ll trade you eggs for milk. Tax that if you will.”
“Randall” wrote, “If it is legal tender, value of said legal tender it set by the gov and stamped on the face.
“Maybe the Government should be on trial.”
Read them yourself at http://www.lvrj.com/news/46074037.html.
These comment posters are not reporters; they have no shield law protection, especially since Congress has yet to pass the pending federal shield law. A grand jury can subpoena just about anyone for any reason.
But what time, effort and tax-funded expenses are being expended by the U.S. attorney’s office to track down a bunch of posturing blowhards squandering their Fifth Amendment right against self-incrimination?
My first instinct is to fight the subpoena tooth and nail. After all, John Peter Zenger was just the printer who published anonymous essays critical of the colonial governor. His jury nullified the existing law and freed him.
On the other hand, if someone were to confess to a real and specific crime on our Web site, I’d give him up at the drop of a hat.
Bottom line: We could fight the federal subpoena, at considerable expense, and lose. Our attorneys are now trying to see if we can limit the scope of the information sought.
What the prosecutors don’t appear to understand is that we don’t have most of what they are seeking. We don’t require registration. A person could use a fictitious name and e-mail address, and most do. We have no addresses or phone numbers.
To add prior restraint to the chilling effect of the sweeping subpoena, we were warned: “You have no obligation of secrecy concerning this subpoena; however, any such disclosure could obstruct and impede an ongoing criminal investigation. …”
I wonder if Thomas Jefferson could have been subpoenaed when he wrote from Paris in 1787: “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure.”
The Sedition Act wasn’t passed until 12 years later. I thought it had since been repealed.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press. He may be contacted at 383-0261 or via e-mail at email@example.com. Read his blog at lvrj.com/blogs/mitchell.