
DoJ's Gag Order on Reason Has Been Lifted - danielsiders
https://popehat.com/2015/06/22/dojs-gag-order-on-reason-has-been-lifted-but-the-real-story-is-more-outrageous-than-we-thought/
======
jedberg
This happens all the time. At reddit we would get requests from law
enforcement asking for email addresses and other private information. Luckily
in our case we could simply reply that we didn't know, since we didn't require
any personal information to sign up and didn't keep IP address logs that long.

But having been on the other side of the coin, investigating computer crime, I
can tell you why it happens. It's really easy to make a request for
information, and in most cases, the person you're asking will just willingly
give it up even though they don't legally have to, either because they want to
be helpful or because they don't know about their legal rights. Even if the
evidence can't be used to build a case against the person in court, it can
still be used to lead down a path towards finding the person and gathering
evidence that is admissible.

~~~
themeek
Can you speak more about your experiences at Reddit, as much as you can? Was
bulk information ever requested and what types of issues did it seem like
requests came in for? Is other private information just IP addresses or is it
passwords and other records (posting history/times/subscriptions) too?

~~~
mason240
If they did have bulk data requests from the US Federal government, would be
even be allowed to say they have?

~~~
jedberg
Keep in mind I stopped working there five years ago. Bulk requests and gag
orders weren't really SOP at that point.

------
barney54
This is a really big deal and the story deserves more coverage since
apparently it happens all the time. Who would have thought that we have to
continue to foment for free speech even in 2015, but apparently we have to!

~~~
Aqueous
Free speech doesn't include yelling fire in a crowded theater, nor does it
include making suggestions of physical violence against a judge.

This entire argument seems to revolve around the author's subjective notion of
a 'credible threat,' but describing a specific act of physical violence
(putting a human through a wood-chipper) against a specific person who also
happens to be a public official (a sitting U.S. judge) could cause that
person, if they are reasonable, to feel that their life was in danger. That's
the standard.

Edit: or cause other reasonable people to believe that the individual's life
was in danger

~~~
CWuestefeld
_Free speech doesn 't include yelling fire in a crowded theater_

This is incorrect. This is a silly characterizations on the limits of free
speech (of which some certainly do exist). Ken, the writer at Popehat, has
written many times on this very topic. To address the most obvious problem
with your statement, free speech DOES include yelling fire in a theater,
unless that cry is _false_.

Further, Ken has also written at great length about what constitutes a "true
threat", and demonstrated why NONE of the comments falls into that definition.

Moreover, you pick the most egregious of the statements. Saying that there
should be "a special place in hell" for the judge can't possibly be
interpreted in that manner. Anyone trying to do so is obviously acting in bad
faith.

~~~
Aqueous
I prefer to apply the principle of charity when replying to others' arguments.
You chose the most uncharitable reading of my invocation of the 'silly'
'yelling fire' prohibition. Obviously I'm talking about the situation where it
is false - and that is exactly my point. Not all lies or false statements are
protected. There is such a thing as prohibited speech. Yelling 'fire' when
there is no fire is an example of it.

Furthermore the test is whether a reasonable person believes they could
telegraph intent.

The test is - if you, a reasonable person, could reasonably believe that this
judge's safety is in question? I will grant that it seems like the standard is
fairly subjective, and libertarians are predictably siding with the expansive
free-speech side of this argument, choosing not to read intent into something
that other reasonable people might read intent into.

I tend to err on the side of personal safety given that I read these comments
as _probably not true_ threats but also not _definitely false._

For what it's worth, though, I believe the sentence issued by the judge in
question against Ross Ulbricht was unjust and unduly harsh and probably
qualifies as cruel and unusual. Still, I don't recommend making suggestions of
violence against an individual online, whether joking or not, and I don't
think this is as clear cut as many are making it out to be.

~~~
CWuestefeld
Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and
the simple quip just is not an accurate statement about how Free Speech works
in America.

From another Popehat post (Ken's really serious about this stuff, and goes to
great lengths to explain it), talking about Holmes's evolved jurisprudence
years _after_ making the fire/theater statement. Quoting:

 _Holmes ' Repentance — Too Little, Too Late

Conventional wisdom says that Holmes rethought his broad support of censorship
when he grasped how open-ended it truly was. The next trilogy of cases before
the Supreme Court, starting in late 1919, is consistent with that view. Holmes
dissented repeatedly as the Supreme Court reaped what he had sown. ...

Holmes, a regretful Dr. Frankenstein struggling against his creation [that is,
the fire/theater comment], dissented. He first offered what in my opinion is a
disingenuous and utterly unconvincing attempt to distinguish the case from
Schenck, abruptly discovering fastidiousness about proof that expression
actually has a tendency to cause lawbreaking ...

The damage Holmes inflicted — the malleable and unprincipled standard of
censorship he drafted — was not thoroughly rebuffed until a half-century
later. Brandenburg v. Ohio states the modern standard_

[http://popehat.com/2012/09/19/three-generations-of-a-
hackney...](http://popehat.com/2012/09/19/three-generations-of-a-hackneyed-
apologia-for-censorship-are-enough/)

~~~
Aqueous
Great - you are really fixating on my outdated understanding of that
particular statement, in lieu of actually addressing the substance of the
argument which is that some speech is not legal. Specifically this kind of
speech:
[https://en.wikipedia.org/wiki/Imminent_lawless_action](https://en.wikipedia.org/wiki/Imminent_lawless_action)
The decision in this case was eventually narrowed to just any speech that
incites immediate lawbreaking - which the 'fire statement' did not do. In
which case what we're taking about here still applies because we are examining
a case where it was suspected by some well-placed individuals that individuals
were inciting each other to imminent lawless action. Whether they actually did
or not is clearly disputed, but let's at least focus on the substance of this
issue instead of going after a red herring.

------
ddp
TL;DR - Judge rubber stamps DoJ's gag order without any basis. He does this
because he is friends with another judge who was the target of someone's First
Amendment rant in a forum on Reason.

------
AndrewBissell
The Hit n Run commenters had a fun reaction to the whole thing involving
changing their handles to variations on the word "woodchipper."

------
vermontdevil
Problem is our society rewards aggressive prosecutors greatly in a variety of
ways. But we don't hold them accountable when they are caught doing the wrong
things.

The worst I can remember is disbarring that prosecutor in North Carolina in
the Duke Lacrosse case.

So we have a system of overly aggressive prosecutors thinking this is the best
career path regardless of legal ethics, respect to the Constitution, etc.

It'll never end until we start pushing them back and demand better
professionalism and respect.

------
ohitsdom
Excellent perspective on how even an innocent US attorney could be unknowingly
using their power to bully. A request or recommendation is read as a threat by
most.

------
beedogs
Wow. Just when I thought Obama's DoJ couldn't come off looking any more
amateurish. They're really an embarrassment.

~~~
ajkjk
I don't know the word is for what you've done in the way you phrased this post
but I don't like it, especially on HN.

You very-intentionally call it "Obama's DoJ". While in some sense it 'is his',
I'm pretty sure you just call it that to associate it with a bundle of things
that we are supposed to blame Obama for. It's what Fox News/GOP propaganda
does when they want to build a narrative that everything involved with Obama
is horrible. Examples: [https://www.gop.com/obamas-epa-is-at-it-
again/](https://www.gop.com/obamas-epa-is-at-it-again/), almost everything on
[https://www.google.com/webhp?ion=1&espv=2&ie=UTF-8#safe=off&...](https://www.google.com/webhp?ion=1&espv=2&ie=UTF-8#safe=off&q=%22obama%27s+DoJ%22)
which is largely published by NationalReview, ACLJ, etc, which are all
conservative publications. This phrasing obviously is _correct_ but it's
always loaded and should be avoided.

You just post a comment of outrage ("wow, this is so amateurish"), pretending
like there's no debate to be had around this and not opposing positions
involved, and not arguing in defense of this. You pretend like there's no
debate on the subject and lead us to agree with you.

You pretend like this is one instance in a long trend (without examples),
leading us into a narrative that we actually have no reason to believe. You
write as though you're in a crowd of people who are mad about the same thing,
and therefore by appealing to the collective outrage that we're supposed to
share, you reinforce the position and your solidarity with the crowd.

Does this kind of pandering-to-a-position have a name?

~~~
venomsnake
Well ... It is his department. And his track record of not abusing power (or
any executive power) is very poor. Prosecution of whistle blowers, lack of
transparency and so on ... even if he inherited it - he did nothing to change
the culture.

~~~
ajkjk
There you go, saying all these things like they're obvious. I don't know that
I believe you on any of that. I don't know that you could know the internals
of it either.

But it doesn't matter, because I wasn't arguing with the claim at all (and
definitely don't feel qualified to). I just wanted to be very clear that I
wasn't falling for, and was not tolerating, posts that pretend like we all
agree that Obama's terrible and, god, what an embarrassment. That's not
rational or effective discussion at all.

------
dimino
I get that I shouldn't really expect anything else from popehat, but how
alienating is this article to people who aren't already onboard with this
point of view?

~~~
fennecfoxen
Hey, man, I tried something less Popehatty: it just didn't take off.
[https://news.ycombinator.com/item?id=9749699](https://news.ycombinator.com/item?id=9749699)

~~~
mariodiana
"Reason's Nick Gillespie and Matt Welch note that the subpoena originally
appeared without an accompanying gag order. Instead, it only contained a
request that the contents of the order not be shared with anyone."

The lesson there is that if you get a subpoena without a gag order, you need
to immediately broadcast it far and wide -- before the gag order comes.

