Ken White from Popehat just revealed that the United States Department of Justice is using a federal grand jury to subpoena and identify the persons responsible for anonymous comments at Reason.com. The comments involve the case of Ross Ulbricht, who was sentenced to life imprisonment for his participation in the Internet market Silk Road. Here are a few choice comments, referencing Judge Katherine Forrest:
AgammamonI5.31.15 @ lO:47AMltt
Its judges like these that should be taken out back and shot.
Cloudbusterl6.l.15 @ 2:40PMIIt
Why do it out back? Shoot them out front, on the steps of the courthouse.
croakerI6.1.15 @ 11:06AMltt
Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.
White asked three questions, paraphrased: do these comments constitute a true threat, does the state have the legal power to use a use a grand jury subpoena, and should it have that power?
White also wrote about the true threat test in the case of Ebony Dickens. When I first wrote about Dickens, the arrest struck me as an obvious attempt to intimidate and silence militant anti-police commentary on the Internet. I’ve ended up referencing this post a few times now. I did not set out with that intent; I never expected it to be so relevant. The subpoena of Reason’s chatters again brings Dickens to the fore.
True threat or not? In the case of the Reason comments, White says “No. NO. AND HELL NO!” I agree. Dickens’s (and Michael Leshawn McCullum who was also arrested for merely reposting what Dickens wrote) comment seems to fall short of the true threat standard as well. But the law is only of secondary importance to me. “True threat” or not is the story for the people who care about the law. (For example, law bloggers.) Law, to flip one of Max Stirner’s aphorisms, is merely the term the state uses to christen its own crimes. I care not for the law debate.
The story to me is the way the state uses the law to protect its enforcement class, consisting of (among many other groups) judges and police officers. Had the Reason comments, or Dickens’s post, referenced a suspected pedophile or terrorist they would never have been investigated. Ken White said as much at Popehat:
Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet?
Because these twerps mouthed off about a judge.
The state can sit by and let innocent people be railroaded. It can even permit the advocacy of violence and calls to arms. In fact, the state can endure the literal lynching of black men by mobs, or homophobic assaults on gay men and women. But the state cannot endure calls to violence against its own agents. This is because the state is fragile.
The state is very fragile. Mention armed revolution and some people will tell you, correctly perhaps, that the modern state has the military might needed to crush an insurrection. But it is not military force that props up existence of the state. At least not solely. It is the illusion of legitimacy. Violence against the state, even sporadic and uncoordinated violence, shatters that illusion. The modern state might be able to subdue an insurrection, but it could not do so and escape with its legitimacy intact.
Violence undermines the facade of consent. It rebuts the argument that anyone who does not participate in the so-called “democratic process,” which can come in the form of anything from voting, to engaging in mainstream political debate, to running for office, is apathetic and consents to the status quo. Attacks against the legitimacy of the state – and physical violence against the state is the strongest form of attack against legitimacy – represent a form of social discourse outside of the approved range of debate. They tell us something about the relationship between ourselves as human beings and the state. What they tell us is something that those in power cannot accept: most of us do not recognize their authority.
The way the state responds further legitimizes what could be called the “argument through violence.” Within the scope of approved discourse we are told that violence does not work. Not that violence is bad, necessarily, though that is said as well. The argument is that violence is nonfunctional. Violence does not produce results.
The repudiation of this is, of course, the fact that violence empirically works. It empirically produces results, time and time again. We see this almost every time violence is employed in any meaningful way. Be it the American Revolution or the Haitian Revolution, or the Civil Rights Movement, or the end of Apartheid, to recent uprisings in Baltimore in the USA, violence has been the main catalyst of change.
The state is left with no verbal recourse. “Violence does not work.” “Yes it does, look.” Well, Q.E.D. The only way the state can respond is with violence, an implicit admission of the efficacy of violence. The state uses violence to stifle the “argument through violence” before it happens.
This explains why the state pursues – with disproportionate vigor – those who call for direct action against the state.
The old saying goes, “If voting changed anything they would make it illegal.” Advocacy for insurrection does change things and that is exactly why it is illegal. Now, I do not know if it is illegal as per the letter of the law in the case of Reason or Dickens. White says no, at least in the former case. He’s a smart fellow and he is probably right. But the state is treating the act as if it were illegal. It becomes criminal de facto. In practice that is what matters, because despite the myth “innocent until proven guilty” the moment you are arrested you will suffer. You will suffer even if you are innocent. You will suffer even if you are found not guilty.
Let’s put this another way: arrests are a tool of censorship. Even if these posts were not illegal, even if the subpoena results in no arrests, everyone who reads Reason is going to think twice about what they write now. We’ve entered the zone of the chilling effect.
Explaining why the comments do not meet the true threat criteria, White wrote:
The “threats” do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about “wood chippers” and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent.
This is true, mostly. The only part I dispute is what is alluded to: people do take these sentiments seriously. Although I don’t believe anyone is preparing to put this judge into a woodchipper, I am certain that many people who read Reason would support it. In fact, I’d wager there are millions of Americans who would support the extra-judicial executions of politicians, police officers and judges.
The comments are “bluster” indeed, as White put it. They are not true threats. But the sentiments are real. The American people want a revolution. They know who the guilty parties are. And there are enough people – almost certainly more than the apocryphal three percent who participated in the American Revolution – ready and willing to man the woodchippers.