On June 2, Reason.com was issued a grand jury subpoena by U.S. Attorney Preet Bharara and Assistant U.S. Attorney Niketh Velamoor to give evidence against six commenters on an article published by Nick Gillespie on May 31. The users with screen names Agammamon, Alan, Cloudbuster, croaker, ProductPlacement, and Rhywun are being accused of violating United States Code, Title 18, Part I, Chapter 41, Section 875, which forbids “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another,” and provides a fine, up to a five year prison term, or both for doing so. The six commenters said that Judge Katherine Forrest should and will be killed by vigilantes for her role in putting Ross Ulbricht in prison for life without parole. Their comment thread has since been deleted by moderators. They may also face accusations of violating Title 18, Part I, Chapter 7, Section 115, which outlaws threats against agents of the federal government and provides a fine, up to a ten year prison term, or both for doing so. Eight observations on the incident follow.

1. The First Amendment does not truly protect freedom of speech. Just as the Eighth Amendment is useless for protecting people from excessive bail, excessive fines, and cruel and unusual punishments, the First Amendment is useless in protecting freedom of speech. The interpretation of the First Amendment, like every other part of the Constitution and every law passed under it, is decided by judges who are paid by the state in courts which are monopolized by the state. Therefore…

2. The law is whatever people in black costumes say it is. Without any competition to government law courts, those who sit as judges in those courts get to decide the meaning of the law. This need not be in keeping with common usage or dictionary definitions because there is no effective challenge to their power once the appeals process is exhausted. In fact, this need not even be consistent or impartial because they have the monopoly and their word stands unless their successors revisit a matter and decide otherwise.

3. Government laws will always grant unfair advantages to agents of the state. The incentive of people who are paid by the state is to encourage the health of the state, which means erring on the side of expanding the size and scope of government and prioritizing the protection of government agents above a fair provision of justice. In this instance, two laws taken together say that anyone who communicates a threat against a federal judge may be subjected to a fine, up to a fifteen year prison term, or both. Title 18, Part I, Chapter 41, Section 875 applies to threats communicated to anyone across state lines, but Chapter 7, Section 115 only applies to threats made against agents of the federal government. The law is prioritizing the protection of government agents above a fair provision of justice by making it a more serious offense to threaten them than to threaten an average person.

4. The threat of power has power. In spite of the first three points, a case against the commenters is highly unlikely to succeed. This incident has none of the factors that have led to convictions under the relevant statutes in the past. But the fact that such an inquisition can even be made by government prosecutors creates a chilling effect on political speech, especially that which is critical of the government and its agents.

5. Power exists to be abused. Even though Reason.com has no control over what its commenters say and can only remove offending comments after they are made, and the case against the commenters is highly unlikely to succeed, this incident provides an opportunity to waste the time of Reason’s staff and make the organization pay legal costs, thereby abusing state power to harm a private organization that criticizes the state. Of course, this is precisely the purpose of state power. To quote Bastiat, “Government is the great fiction, through which everybody endeavors to live at the expense of everybody else.”

6. Evil prefers to lurk in the shadows. Niketh Velamoor clearly wanted to keep the subpoena a secret. It contained the standard language requesting non-disclosure:

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, we are requesting you not to 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.

Of course, a request made by an agent of the most powerful and dangerous criminal organization in human history will necessarily be interpreted differently than a request made by your neighbor or even your boss, to such an extent that a reasonable person might not think of this as a request. Velamoor went even farther than this, however, in a rather clear effort to intimidate Ken White into refraining from writing about the incident. The question of why government agents would want to keep such an action secret is easy to answer. They would rather restrict free speech without being seen doing so because while power exists to be abused, abusing it in broad daylight results in backlash.

7. The commenters were not calling for anything that is anti-libertarian. The commenters are being investigated for allegedly threatening to carry out a vigilante execution of Katherine Forrest. The initial knee-jerk reaction of most people will be to condemn such an act, but let us examine her conduct. In order for such an act to be within libertarian principles, it would have to be demonstrated that (A) Forrest has committed a crime for which a death sentence is acceptable and that (B) she cannot claim the right to a fair trial. As for (A), in the Ross Ulbricht case, she sentenced a man who was convicted of no malum in se offense to spend the rest of his life in a cage. This is a fate worse than a death sentence in many ways. If you or I did this to someone, we would be facing kidnapping charges, with possible charges of slavery and murder as well for destroying a person’s life and liberty without a legitimate reason. This is a crime for which a death sentence is acceptable, as it is inconsistent to assert one’s own rights to life and liberty while violating the same rights of another person. As for (B), Forrest allowed irregularities by the prosecution in the Ulbricht case and denied the jury important information that they would need in order to make a fair decision. This amounts to denying Ulbricht a fair trial, which means that she cannot consistently claim the right to a fair trial for herself. While it is illegal and tactically unwise to kill or threaten government agents at present, doing so in this case would not be immoral under a logical application of the non-aggression principle.

8. A heavy hand breeds defiance. That Bharara and Velamoor are overreaching is clear from the media coverage their actions have received. A number of the commenters at Reason have also stood in solidarity with the targeted commenters by adding “Woodchipper” to their names, in reference to the offending comments. The tighter the grip of the state becomes, the more people will slip through their fingers to a realization of the need for liberty.