For reasons White explains, the comments almost certainly do not qualify as “true threats” against the judge. They are, rather, the kind of nasty and stupid vitriol that is all too common in anonymous comments on the internet. For example, one of the commenters wrote that “judges like these… should be taken out back and shot,” another opined that “I hope there is a special place in hell reserved for that horrible woman,” and a third replied that “I’d prefer a hellish place on Earth be reserved for her as well.”
Nasty stuff, indeed. To put it mildly, comments such as these are hardly valuable contributions to public discourse. But if federal prosecutors investigated every similar anonymous comment on the internet, we could probably devote the entire federal budget to hunting down these types of blogosphere trolls, and still not find them all.
White also notes that, under current judicial precedent, federal prosecutors likely have the authority to seek a subpoena in cases like this. But even if this practice is legally permissible, it is still ill-advised. In addition to wasting substantial resources that could better be devoted to investigating real crimes, it is unlikely that this power will be used in an even-handed way:
[T]he government won’t start issuing grand jury subpoenas every time someone writes “my husband left underwear on the bathroom floor again; I could just kill him.” But they won’t because they don’t have the time, inclination, or the resources.Instead, they will use their discretion to decide when to bring their vast power into play to pierce the anonymity of internet assholes (or for that matter, people who may have valid points on political matters but express them in the wrong fashion). That discretion is much more likely to be exercised where, as here, the person being trash-talked is a powerful federal judge in the district of that U.S. Attorney’s Office, a judge that the office must appear before every damned day. The power is more likely to be exercised on behalf of establishment political figures, not outsiders. The power is more likely to be exercised when it is consistent with the politics of the administration.
Even if the subpoenas don’t result in the filing of any charges, they can still impose substantial costs on their targets, and create a chilling effect on political speech. And, as White correctly emphasizes, they can potentially be used to target political speech that is not as ridiculous as these particular comments were, and may even makes some valid points.
As a longtime blogger, I have great sympathy for people who get attacked in nasty ways by obnoxious anonymous commenters. Most of us who write for blogs that are at all prominent have had similar unpleasant experiences. But a grand jury subpoena is not the right way to deal with anonymous internet trolls.
NOTE: I have written articles for Reason.com myself, but not on issues related to the Silk Road case.