Judges, pirates and censorship: Ross Ulbricht and Reason Magazine’s Silk Road

Judges, pirates and censorship: Ross Ulbricht and Reason Magazine’s Silk Road

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1 1972

“Every normal man,” said H.L. Mencken, “must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats.”

“Preparing for Mutiny” by N.C. Wyeth

WASHINGTON, June 21, 2015 — “There is a higher court than courts of justice,” said Mahatma Gandhi, “and that is the court of conscience. It supersedes all other courts.”

Statements like that can get a man arrested in America. Especially if the statements pertain to Judge Katherine Forrest of the U.S. District Court.

When Judge Forrest sentenced Ross Ulbricht, creator of the Dark-Web site called Silk Road, to life in prison, she said, “In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts [from the film “The Princess Bride]. 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.”

Actually, pirate crews were the first to practice democracy in the Americas. Buccaneers like Capt. Edward “Blackbeard” Teach were elevated to the captaincy by consent of their cutthroat crews. In that sense, it’s difficult to distinguish today’s kleptocratic American democracy from the plundering piracy of the past.

Judge Forrest’s understanding of piracy has no connection with history, shaped as it is by what she sees in the movies. And those whose opinions differ from hers may be forced to walk the plank.

When Reason magazine, a Libertarian journal, published a story on Ulbricht’s life sentence, some readers were less than kind to Judge Forrest in their comments on the story:

  • “It’s judges like these that should be taken out back and shot.”
  • “Why waste the ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.”
  • “Why do it out back? Shoot them out front, on the steps of the courthouse.”
  • “I hope there is a special place in hell reserved for that horrible woman.”
  • “There is.”

The silly hyperbolic comments above, it turns out, were subjects of a federal grand jury subpoena aimed at Reason. According to the subpoena:

“For the users identified … please provide any and all identifying information that you have for the users, including but not limited to: 1) Subscriber/Account information, if any; 2) Associated address (es), email address (es), telephone number (s); 3) IP address (es) associated with the postings; 4) Billing information to include credit card/bank information, if any; 5) Associated devises connected to the user.”

The subpoena further stated that the matter concerned “an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

It was at this point in the document that the U.S. attorney’s office for the Southern District of New York issued a gag order:

“The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request [wink, wink], we are requesting you not make any disclosure in order to preserve the confidentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.” (Emphasis added).

When Reason asked the U.S. attorney’s office to drop its subpoena in light of a recent U.S. Supreme Court ruling (Elonis vs. United States), it agreed and Reason was able to respond to the subpoena in a recently published article.

“In America, grand juries have almost limitless ability to investigate whatever they want, regardless of whether that investigation has any chance of producing a constitutionally permissible conviction,” said Reason. “Grand juries are widely regarded as playthings of ambitious prosecutors, who famously are able to indict ‘ham sandwiches’ – at least, as long as those sandwiches aren’t police officers accused of brutality.”

The article added, “It’s worth stressing that, under established legal precedent, Reason.com (like any other website) is generally not legally responsible for reader comments posted at our site. Still, the chilling effect on Reason and our commenters is tangible. It takes time, money and resources to challenge, or even simply to comply with, such intrusive demands.”

Big Brother doesn’t have to launch frontal assaults on First Amendment free speech. A clever government lawyer has only to convince 12 weak-minded and unknown jurors to launch secret investigations and issue stealthy subpoenas demanding that the victims “voluntarily” muzzle themselves.

It’s only natural that the government’s creeping authoritarianism might inspire some Americans to engage in verbal swashbuckling.

“Every normal man,” said H.L. Mencken, “must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats.”

Figuratively, of course.

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