Related Post Roulette

103 Responses

  1. Avatar Oscar Gordon says:

    To be clear, they weren’t threatening a judge directly, but rather being disturbingly hyperbolic in the comments section.Report

  2. Indeed, though it’s worth pointing out that, while boorish and trollish, this is clearly protected speech, rather than a “true threat,” even without Elonis. The circumstances surrounding these comments are such that no reasonable person would view these to be threats of actual violence. That’s doubly true for the comments that do no more than reference a “hope” or speak hypothetically about what they’d like to see happen to the judge. There’s just not any objective indicia of an intent to threaten, so there’s not even a need to inquire about the commenters’ subjective intent. The comments aren’t associated with any doxxing of the judge, for instance, nor anything else to suggest that they are more than just idle trolling.

    This subpoena smacks of an attempt to intimidate Reason (and perhaps other outlets) for being critical of the prosecution and the judge in the Silk Road case.Report

    • Avatar zic in reply to Mark Thompson says:

      I found Elonis’ actions actually threatening; but I’ve seen women have to live with those sorts of direct threats from estranged and violent husbands.

      but here?

      ugh. This is very, very ugly.

      That said, we also don’t know what we don’t know about other actual threats or attempts on the judge’s safety, too. There is some slim possibility that there’s more to this.Report

      • Avatar Mark Thompson in reply to zic says:

        Yeah, Elonis’ actions definitely met the standard of “objectively threatening.” That’s more or less what I’m getting at here – the Elonis case only addressed the question of whether there needs to be proof of subjective intent once there’s a finding of an objective threat. Once that finding’s been made, the DOJ’s probably at least justified in trying to get more information to investigate subjective intent regardless of whether they’re likely to get a conviction. But here? No possible argument whatsoever for an “objective threat,” so there’s no basis to try to find information on whether there was a subjective intent to threaten. IOW “subjective intent” is relevant only once there’s an objective threat.Report

        • Avatar Stillwater in reply to Mark Thompson says:

          Mark Thompson,

          the Elonis case only addressed the question of whether there needs to be proof of subjective intent once there’s a finding of an objective threat.

          Not being a lahyer and all, could you elaborate on this? The only thing I read about it was the Popehat post Burt linked to in a recent post, aaaaand, Ken said (appeal to authority here!) that what the SC effectively did in the Elonis case was toss out the reasonable person standard for determining what could otherwise be viewed as an objective threat in favor of … well, that’s not so clear, according to Ken anyway … concluding that a finding of subjective intent is necessary for establishing that a particular speech act constitutes actual threatening behavior.

          Course, given my first clause, I could be very confused about this.Report

    • Avatar gingergene in reply to Mark Thompson says:

      One of the comments explicitly mentioned in the subpoena was

      I hope there is a special place in hell reserved for that horrible woman.

      If that’s threat of any kind, much less a “true threat”, then just about every person every where would have to be locked up.

      I hold a faint hope that the egregiousness of this overreach coupled with Reason’s relative fame and deep pockets could result in changes, but the cynic in me fears that the most that will come of this is that prosecutors will be reminded to use their discretion to go after smaller, less informed targets.Report

      • Avatar greginak in reply to gingergene says:

        Being vile is protected speech. However lots of people who do actually become violent do mouth off big time before hand including threats like ones in the Reason thread. That creates a real problem for law enforcement. I’d bet they know 99.999% of threats are just dbags being themselves, but judges do get real threats.Report

      • Avatar trizzlor in reply to gingergene says:

        The subpoena should be rebuked based on it’s strongest piece of evidence, not it’s weakest. And that would be the statement

        AlanI5.31.15 @ 12:09PMltt
        It’s judges like these that will be taken out back and shot.

        In my opinion, the only thing that distinguishes this from an actionable threat is the fact that it’s in a comment threat with a bunch of similarly aggressive statements. If this same statement were e-mailed to a judge, or posted on a public twitter page, it seems like exactly the kind of thing the FBI/DOJ is supposed to investigate. Maybe that difference of context is good enough to throw out this subpoena, but I don’t see any precedent making this clear.

        The Popehat article spends a lot of time avoiding this issue. There is, however, of plenty throat-clearing about those darn kinds at Reason blowing off steam, and a parade of horribles where we all get sued for making Big Lebowski references, all but ignoring the one comment that’s an actual threat.Report

        • Avatar Glyph in reply to trizzlor says:

          I dunno, even that statement has just a bit of wiggle room in my mind.

          Is it the fact that it’s in a thread with similarly-aggressive statements; or is it the word “like”, distancing the statement from *this* (or any specific) judge, and toward the realm of hypothetical faceless “judges like these”; or is it the implied parenthetical rhetorical flourish “(come the revolution!)“, that my brain sort of fills in whenever I read this kind of claptrap?

          That said, Reason comments are sometimes a cesspool.Report

        • Avatar Mark Thompson in reply to trizzlor says:

          I agree that this is the worst comment of the bunch – by far. But it’s still woefully short of a true threat. It says nothing about who will be doing the act – at most it’s an expression of ill wishes.

          The Popehat post in fact directly addresses this comment, and even acknowledges that it’s the closest to a true threat. Ken writes: “Therefore, even the one that is closest to a threat — “It’s judges like these that will be taken out back and shot” isn’t a true threat. It lacks any of the factors that have led other courts to find that ill-wishes can be threats.”

          The difference in context is pretty clear and, in fact, has to be considered. From the Turner case: the ” test for whether conduct amounts to a true threat “is an objective one—namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury.”

          Also from the Turner case – merely “advocat[ing] for a law violation” or “express[ing] an abstract desire for the deaths” of particular judges is not a true threat. There needs to be some other expression or action that gives the threat some weight – something like doxxing the target or some specificity to the purported threat or, at minimum, some known personal connection to the target.

          What’s more, keep in mind that the subpoena is not limited to that one comment, but includes each and every one of the commenters cited. So even if it were somehow the case that this particular comment might constitute a true threat, there’s no possible justification for issuing the subpoena for all the other comments as well.Report

          • Avatar Damon in reply to Mark Thompson says:

            Yeah, I originally read “It’s judges like these that will be taken out back and shot.” as “It’s judges like these that SHOULD be taken out back and shot.” and even that I don’t think, should be actionable.

            It’s essentially what I said, in a previous post, about quislings.Report

  3. Avatar Glyph says:

    Is anyone going to post on the Silk Road case itself?

    It’s crazy to me that Ulbricht got life with no parole (though he will appeal). Supposedly, the harshness of the sentence is both an expected result of federal charges, and an intentional threat to anyone contemplating a similar criminal path (the feds know they can’t catch everyone, it’s way too hard; so the ones they DO catch, they will absolutely nail to the wall).

    Before you say, “but he tried to have people killed”, I should point out:

    1.) He hasn’t been tried for that yet.
    2.) As far as anyone can tell, he didn’t succeed in killing anyone.
    3.) He didn’t succeed, in part, because it appears that in at least one case, the person that he tried to have killed, and the person who faked killing that person, were possibly both the *same* person trying to get money from him (when the extortion threat resulted in a death threat in response, the extortioner switched tactics and posed as a hitman instead, and fake-killed “himself” to collect).

    Obviously he shouldn’t have tried to have ANYBODY killed, but…Report

    • Avatar zic in reply to Glyph says:

      You forgot that two of the investigating agents have been indicted for embezzling bitcoins.Report

      • Avatar Glyph in reply to zic says:

        The whole thing is going to make an amazing movie. The defense made some inexplicable moves (supposedly, early on they could have contested whether a bunch of incriminating server data was obtained Constitutionally, and tried to have it thrown out, but didn’t); I’d love to know what their thought process was.

        RE: the agents – the corrupting influence of massive amounts of black-market money upon the very people charged with policing said markets, is long- and well-known.Report

        • Avatar LeeEsq in reply to Glyph says:

          you need to have standing to contest whether evidence was obtained constitutionally or not. That means you have to admit it is yours. For some types of evidence like drugs, contesting it means admitting guilt. That might have been the case here,Report

          • Avatar Troublesome Frog in reply to LeeEsq says:

            It seems like once you’re convicted and the drugs are yours in the eyes of the law, you should be able to say, “OK, now you can’t really deny that I have standing to contest this. Time for a do-over.”

            Or we could just require that our authorities follow the rules for gathering evidence all the time instead of only when somebody has standing to fight it.Report

          • Avatar Glyph in reply to LeeEsq says:

            @leeesq – as I understand it, it was a server(s) that may have been illegally accessed for evidence, so the evidence was data, not drugs.

            Which, since the defense tried to go with “you’ve got the wrong guy!” might still track with your explanation. Still, it seems a strange tack to take. A huge gamble, lost.Report

        • Avatar Mike Schilling in reply to Glyph says:

          But that wasn’t even money; it was bitcoins. It’s like agents investigating an alchemist embezzling newt eyes.Report

    • Avatar Saul Degraw in reply to Glyph says:

      I am not so surprised that he got life without parole. He was charged and found guilty of trying to hire a hitman and running a website that allowed people to receive any narcotic imaginable. There is a big difference between selling meth or heroin on the street and running a massive online empire. We think the drug war is winding down but that is only in select parts of the United States and over marijuana only. I have yet to see evidence that anyone beyond a handful of liberals and libertarians thinks that meth and heroin should be decriminalized or legalized.Report

      • Avatar Glyph in reply to Saul Degraw says:

        Saul, he has not yet been tried for the “hitman” (scare-quoted since he never got one, nor was anybody killed). He ran the site and took a cut, but was not himself selling or buying.

        Life without parole seems harsh to me.Report

        • Avatar Saul Degraw in reply to Glyph says:

          Most people never get people killed by hitmen but that doesn’t stop from soliciting a hit to be a severe crime in my mind but I concede the point that he hasn’t been tried for it.

          What would you consider a reasonable sentence?

          Note I am generally opposed to life-sentences in almost all cases. I am just not shocked that he received a life sentence.Report

          • Avatar Oscar Gordon in reply to Saul Degraw says:

            As others have said, he was never even charged with conspiracy to commit murder, so it should not have entered into his sentencing.Report

          • Avatar Glyph in reply to Saul Degraw says:

            I’d think a decade or so at most should be sufficient.

            Unless we are trying to make an example of this guy and/or wreck him forever.Report

            • Avatar Troublesome Frog in reply to Glyph says:

              It seems like our perception of time is similar to our perception of brightness and sound–more like logarithmic than linear. We hear that somebody is going away for five years and we say, “That’s not so bad.” Really? Five years in prison is an incredibly long, life altering time. But at a glance, it seems like a lot less than 20 years or life, so we round it down to nearly nothing.

              And now our sentencing reflects that. The number doesn’t have to be big enough for the person doing the time to notice. It has to be big enough for somebody who is barely paying attention to the issue to notice.Report

              • Avatar Glyph in reply to Troublesome Frog says:

                When I say “a decade, at most”, I am trying to reach for a sort of guesstimate compromise, a balance for the fact that he did apparently try to have people killed (even with all the mitigating factors I’ve listed for that), as well as show some respect for the rule of law (I personally believe drugs should be legalized, but I understand that is not the law, nor do my fellow citizens all agree with me about the ideal state of the law). There’s plenty of street-level people involved in the drug trade who have been sent away for years and years, who didn’t have Ulbricht’s advantages in life or in the courtroom.

                Even a few years of jail would be bad, for sure, for him; it might even be an injustice; but it mightn’t quite rise to the level of “obviously-excessive/draconian” for me, like “life with no parole” does.

                I mean, once we get past a decade or two of jail sentence, we are pretty much saying “As a society we believe there is no possibility whatsoever of rehabilitation or risk reduction here, and so we are taking your life. All of it.”

                For violent, likely-recidivist criminals, that can make sense; but I’m not sure this guy fits that bill.Report

              • Avatar Troublesome Frog in reply to Glyph says:

                Another aspect of really long sentences it that in general, the person you put in is by most measures not the same person 30 years later. That’s probably especially true in the case of the types of reckless, impulsive young people who end up in prison. Their 50 year old selves are really only barely connected to their 20 year old selves. Even ignoring the practical public safety point that most 50 year olds are a lot less dangerous than their younger selves, the person doing the time from 50-70 years old is often not the type of person who “deserves” to be in prison anyway. It’s almost like punishing somebody for another person’s crimes at that point.

                Sure, there a lot of people who are just broken and probably need to be locked up for our safety, but I’m betting there are a lot of people rotting away who just took a longer time to stop their youthful testosterone-fueled impulses and who will grow out of being a problem long before they’ve served their time.Report

      • Avatar zic in reply to Saul Degraw says:

        Just to go on record: I am opposed to life in prison as cruel and unusual punishment. I am opposed to the death penalty.Report

      • Avatar dragonfrog in reply to Saul Degraw says:

        I’ve seen some arguments that the FBI and the like should actually hope for markets like the Silk Road to take over more of the overall illegal drug market – if you’re selling your drugs by mail order, you have no turf to make war over, nor are you likely to be in any kind of physical proximity to your rivals to be able to conduct turf wars.

        I at least see some sense to those, but I imagine the FBI is a deeply conservative organization that, by and large, will prefer the devil they know over almost any imaginable devil they don’t know.

        Incidentally – I’m one of those apparently crazy liberals who thinks all drugs, yes even unto nasty ones like heroin and methamphetamine, should be legal. Actually I’d identify more as a socialist than a liberal FWIW.

        I also think people should be sentenced only on the basis of the crime they’ve been convicted of, not of ones that are only untested accusations, which I (perhaps idealistically) believe should be a position sufficiently uncontroversial to be independent of political alignment.Report

        • Avatar Kim in reply to dragonfrog says:

          Meth is an ecological hazard. Are you in favor of mercury as a drug? It’s the same reasoning why I think meth should be outlawed.Report

          • Avatar Troublesome Frog in reply to Kim says:

            Mercury is legal, though. I’d be really concerned if we had a ‘war on mercury’ with SWAT teams, civil asset forfeiture, special rules of evidence, jailhouse informants, draconian sentences, etc. It seems like we’re doing a lot better by just having rules about not pouring mercury into storm drains and sprinkling it on breakfast cereal.Report

            • Avatar Kim in reply to Troublesome Frog says:

              Yeah, that’s fair. I’m not sure there’s much cheap ways to clean up meth (same as mercury, come to think), though, and maybe we could put the paranoid fellas somewhere where their traps would be less likely to hurt the neighborhood cats.Report

            • Well, I can point you at a batch of large utilities and generating companies and about 20 states that think there’s a new War on Coal, with heavy new regulation of mercury being a part of that. Granted, most of the individual things you list aren’t being used, but some of that’s just that it’s hard to hide a coal-burning power plant.Report

              • Avatar Troublesome Frog in reply to Michael Cain says:

                From what I’ve seen of the War on Drugs, I’m fairly certain that if there’s a real War on Coal, the people involved in the coal industry will know it. It won’t just be a general feeling that they’re not beloved captains of industry anymore.Report

              • Avatar Oscar Gordon in reply to Troublesome Frog says:

                Oh man, do you remember the War on Ice?! Back when that rascal Durant started selling those electrical contraptions…Report

        • Avatar Glyph in reply to dragonfrog says:

          I’m unsure if the lack of turf is that big a deal though; I mean, it may help, but “turf” was always a stand-in for “money”, and people are still going to try to get one over on each other in pursuit of large sums in the absence of legal recourse (as happened here, when Ulbricht was extorted, so he tried to eliminate the extortionist. There was another big online market that absconded with everyone’s money, and if there is any way to find those guys, they will likely end up UNDER some turf).

          It may reduce some street-level violence though.Report

        • Avatar Saul Degraw in reply to dragonfrog says:

          @dragonfrog @glyph

          I certainly lean towards decriminalization* though Kim is right about how Meth is an ecological hazard.

          *Though I would do it in a highly regulated way where people have to go via pharmacies and government regulations like the Portugese program or how it is done in the UK. I am not for a free-market Silk Road free-for-all for heroin. People should be allowed to grow and sell their own marijuana and hash.Report

          • Avatar dragonfrog in reply to Saul Degraw says:

            I absolutely agree that a free-for-all like the Silk Road is not desirable – it’s only the lesser of two evils when the other evil is the horrifyingly destructive evil of the war on drugs (or if you prefer, on some people who make and use some drugs).

            I’m also for the legality of alcohol, but not for a totally unregulated market where anyone can sell moonshine with unpredictable levels of methanol and other contaminants, and dump their waste materials with the priority of concealment rather than safety (that was what we got under prohibition).

            As for the ecological hazard of methamphetamine – is Desoxyn an ecological hazard? No, because pharmaceutical manufacturers handle their waste chemicals properly. The ecological hazard of street meth comes directly from the illegality under which it is manufactured.

            It’s manufactured in illegal labs that have no option but to dump their waste chemicals unsafely. Legality would have to make the manufacturing process subject to the same restrictions on handling those chemicals as apply no matter what the product is. We’re not going to stop the manufacture of meth, but we have a choice as to whether it’s manufactured in OSHA and EPA inspected facilities.

            By the same token:

            Marijuana grow ops result in massive property damage, mold, and electrical fires, while hydroponic tomato greehouses don’t – the technology is practically the same, but the legality of tomatoes mean tomato grow ops use properly constructed greenhouses, safe electrical installs, and proper fertilizer handling.

            Illegal cocaine manufacturing involves use of gasoline as a solvent, which is then dumped directly in streams in the jungle. Cocaine manufactured legally for use as a dental anaesthetic doesn’t involve dumping gasoline in the jungle. The two are the same drug – the ecological hazard doesn’t come from the drug, but from its illegality.Report

            • Avatar Kim in reply to dragonfrog says:

              Agent Orange was manufactured legally. It is not a hazard. What was a hazard was it’s contamination with dioxin, which is a real BITCH to prevent.

              I don’t know the chemistry behind meth manufacture and use (other than sudafed works on some of the same principles, and is a precursor).Report

            • Avatar Saul Degraw in reply to dragonfrog says:


              I totally get all of this. I have seen a fair amount of libertarians argue for the all or nothing approach towards legalization though. Enough of them seem to go that way that I can see reform and legalization being delayed because they would rather stick to their ideological anti-state views than actually end the drug war.Report

              • Avatar Oscar Gordon in reply to Saul Degraw says:

                I say legalize it, let the drug companies manufacture it, and use the proceeds/profits/taxes to make life saving medications less expensive.Report

              • Avatar dragonfrog in reply to Saul Degraw says:

                In what way do you mean “all or nothing”? Like, they’d rather not see one particular drug legalized if some other drugs haven’t been yet?

                I guess I see some logic to that – in the way that communists reserve a special ire for liberals, because their attempts to make capitalism not horrible would forestall the revolution. I don’t think it’s a good idea, but I see the logic, if indeed that’s what it is – hold the boomers’ weed hostage to the greater project of fully standing down the war on drugs…

                I’m not convinced that mere decriminalization is at all useful on its own – if it’s a step on the road to full legalization, great, but if we stop there it seems too likely to come out to: “Great news, we’re formalizing the already existing ability of white college kids to get off scot-free on possession of up to a quarter ounce of weed! The disadvantaged minority folks who have always been the ones to handle growing, wholesale, retail, will continue to be targeted with SWAT violence, and to be unable to turn to police for redress of robberies, fraud, and violent attempts to take over their business.”

                I recognize that we’re not going to get there in a single step. One drug at a time, maybe passing from de-facto decriminalization to formal decriminalization to eventual legality and regulation.

                At the same time, I think the all-out, “try to get the entire controlled substances act thrown out by the supreme court” approach, is probably worth trying in parallel.Report

              • Avatar aaron david in reply to dragonfrog says:

                @dragonfrog I like the cut of your jib on this!Report

              • Avatar LeeEsq in reply to dragonfrog says:

                What I think Saul means is that he wants drugs legalized but in away that takes public health and safety into account with a strongly regulated market like alcohol. What he doesn’t want his a free for all.Report

    • Avatar Autolukos in reply to Glyph says:

      It would seem that, if someone is going to be imprisoned for ordering hits, they should be charged with such a crime and convicted. But then, I’m just a crazy libertarian.Report

  4. Avatar Kim says:

    Ahh… to be a fly on the wall.
    It’s always fun watching commenters posting and saying hello to the FBI agents.Report

  5. Avatar zic says:

    No one’s addressed this, so I’ll bring it up again: do you think this subpoena has anything to do with investigators hands’ being tied when it comes to NSA data?Report

    • Avatar Autolukos in reply to zic says:

      It isn’t really clear to me what you mean by this; is the theory that they would have just gone to the NSA and said, “tell us who these people are”, but now have to go through legal channels?Report

      • Avatar zic in reply to Autolukos says:

        That’s exactly what I mean; before, they could (in theory) look at the data themselves, now, they need a subpoena.Report

        • Avatar Oscar Gordon in reply to zic says:


          In the past, the NSA was known to hand information over to the DEA regarding drugs, and the DEA would act on it, then construct an alternative path for finding that evidence before anyone had a chance to suspect the information was obtained without a warrant.Report

    • Avatar Kolohe in reply to zic says:

      No, because that’s not how bulk data collection worked nor how it was used.

      The most likely scenario is that the DoJ has some ongoing public web monitoring using a keyword search of ‘[$Judges with high profile cases]’ + ‘[$threatening words]’.

      The second most likely scenario is that someone who doesn’t like the Kochs (either on the left or on the right) tipped off the DoJ to that particular webinar.Report

    • Avatar Will H. in reply to zic says:

      Exactly, no.
      The reason is that metadata is not protected information.
      Just like a letter, all expectation of privacy in an e-mail terminates upon its opening.
      The difference is that there is no expectation of privacy whatever in an e-mail six months old, while an unopened letter still retains an expectation of privacy.

      Further, take a look at the statutes implicated here:
      From the Congressional Research Service.Report

      • Avatar zic in reply to Will H. says:


        I think there’s a gray area here. An email, a phone call, a letter each has a presumption of private communication. I am not sure that any penumbra of privacy would extend to a comment posted on a public forum.Report

        • Avatar Will H. in reply to zic says:

          It depends on the forum.
          If it’s a members-only forum, the rules for subscription-only magazines apply.
          If not, then the person to whom the comment is addressed determines whether it is public speech or private speech.
          Granted, neither of the above categories have any expectation of privacy in the content.
          The use of a pseudonym carries with it a presumption of anticipated anonymity, which is a bit different.
          From what I’ve seen, that reasonable anticipation of anonymity can be pierced by engaging in tortious conduct.Report

      • Avatar dragonfrog in reply to Will H. says:

        The law says an email left on a server for six months is considered “abandoned” – since the law was drafted when everyone used POP3 for their email, and webmail didn’t exist. The fact that the law says there isn’t an expectation of privacy is, IMO more an indication that the law is obsolete, than that there isn’t in fact a legitimate expectation of privacy.Report

        • Avatar Will H. in reply to dragonfrog says:

          That’s what I got out of it.

          There’s another case that’s somewhat famous for a judge in Puerto Rico trying to figure out if the message utility in FB is an e-mail or a blog, so he would know what rules to judge it under.
          He adopted a hybrid rule, suggesting that the judge doesn’t FB too much.
          One less person inviting me to join their Farmville game that I have to worry about.Report

    • Avatar Damon in reply to zic says:


      Just because there is a “law” preventing it don’t mean that it’s not actually being done. It’s “classified” so no one knows except those read into the program, and since, those are the guys doing it, it’s a nice tight ball.

      We’ll find out in 30 years what they were really doing all along.Report

  6. Avatar aaron david says:

    “Judge Forrest handed down a sentence even more draconian than prosecutors had sought and made a point of condemning Ulbricht’s political views. “In the world you created over time, democracy didn’t exist,” she said. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.””
    Virginia Postrel former editor of Reason.
    So, not FYIGM, its FYTWReport

  7. Avatar zic says:

    I remain troubled by all of this.

    First, the right to free speech also includes a responsibility — and that would be accepting consequences of that speech. Other people, for instance, also have a right to free speech, including criticizing what you said if they in some way disagree with it. This notion that others’ criticisms suppresses free speech is tiresome at best, and a suppression of free speech at worst; see most any criticism of SJW for examples of that in action.

    Second, is the notion that threats are protected. If one thing is obvious from Elonis, it’s that intent must be considered. Even here, there are layers. Is the intent to actually threaten? Is it to deprive others of their full slate of rights? As a woman, I consistently wonder about that last considering the stream of threats that many women face online. I may have a right to wish rape on somebody on line; but if the social norms are such that this dampers participation, what then?

    Third, there are laws about threatening federal officials. You may not like those laws; they may not be what any of us wishes, but they do exist. From the wikipedia link:

    There are three elements of the offense of making an illegal threat: (i) there must be a transmission in interstate commerce; (ii) there must be a communication containing the threat; (iii) and the threat must be a threat to injure the person of another.

    The comments that were included in the subpoena meet all three criteria.Report

    • Avatar Autolukos in reply to zic says:

      Given that none of the comments were threats, its hard to see how they met the criteria specified.Report

      • Avatar zic in reply to Autolukos says:

        I suppose it depends on how you define threat.

        But, “she should be put feet-first through a wood chipper,” seems pretty threatening to me.

        And again; we do not know that there wasn’t additional action, and that this is part of establishing a greater pattern of threat. Without that knowledge, I don’t think it’s safe to presume this is an attempt to squash free speech.Report

        • Avatar Autolukos in reply to zic says:

          If someone with a woodchipper and the judge on hand had said “send her through the woodchipper”, that would fit my definition of a threat. Neither of those are available in a comment thread.Report

          • Avatar zic in reply to Autolukos says:

            The law cited in the subpoena is Title 18, section 875.

            (a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
            (b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
            (c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
            (d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.


            • Avatar Will H. in reply to zic says:

              Hate to tell you, but the statute itself doesn’t mean a lot.
              It’s the jury instructions which are meaningful. My understanding is that this is the part that an appellate court would review, and not the statute itself (unless it was its constitutionality at issue, and then the inquiry begins with whether the statute is unconstitutional on its face or unconstitutional as applied).
              This is much the same as my CJ instructor’s “Elements of the Offense” assignment.

              1. Defendant knowingly sent a message in interstate commerce

              2. containing a true threat to:
              a. injure the person of another; or
              b. damage the reputation of another, or accuse another of a crime;

              3. In that:
              a. threat

              4. Defendant did so with intent to extort money or something else of value to this Defendant.

              The instructions for 875(b) & (d).

              There are a couple of big differences between extortion crimes and robbery crimes.
              Robbery is the forceful taking of the property of another, while extortion is the relinquishing of another’s property under duress.

              What’s funny about this is that the federal extortion statute is actually 18 usc 1951, the Hobbs Act.
              In its earliest form, extortion was an offense only a judge could commit.
              Recognition of extortion as a tort evolved from the concept of judicial immunity, which was initiated to encourage the newly-instituted appellate procedure, which replaced the system of suing the issuing judge in another court.
              More Lord Coke, James I stuff, but I think extortion was first recognized past Coke’s time.Report

    • Avatar DensityDuck in reply to zic says:

      “the right to free speech also includes a responsibility”

      This attitude leads to an awful lot of responsibility and surprisingly little right.


      “Other people, for instance, also have a right to free speech, including criticizing what you said if they in some way disagree with it. This notion that others’ criticisms suppresses free speech is tiresome at best…”

      And then you say

      “Is the intent…to deprive others of their full slate of rights? As a woman, I consistently wonder about that last considering the stream of threats that many women face online.”

      So, um, criticism is an important and vital part of free speech, and we should all just shut up and deal, and it’s totally invalid to suggest that one person’s speech suppresses another person’s speech unless the speech involves a threat towards a woman, in which case speech should totally be restricted in the interest of ensuring unrestricted speech.Report

  8. Avatar aaron david says:

    Spotted in today’s Reason Hit and Run comments:
    “FULL DISCLOSURE: As an obnoxious asshat who represents the blowhard stupidity of Reason magazine’s commenting peanut gallery, I hereby declare that my comments are typical internet bluster and hyperbole, hardly valuable to public discourse, and must not be construed as “true threats” in “interstate or foreign commerce” in violation of federal statute 18 U.S. Code § 875. Any precious snowflake or federal judge offended by my worthless comments should see a plastic surgeon to graft thicker skin, or wait and pray for stem cell therapy innovations to grow said thicker skin. Because the word “trigger” is a part of the phrase “Trigger Warning” and may trigger a repressed fear of firearms in some people, no trigger warnings shall precede my comments.” Injun, nonviolent woodchipperReport