Just a day after the U.S. Supreme Court handed down its Elonis decision in a case centered on online threats, a federal prosecutor issued a grand jury subpoena to Reason.com, the libertarian website associated with Reason magazine and the Reason Foundation. The subpoena seeks the identities of Reason.com commenters who, using online pseudonyms, were hugely critical of a federal judge’s decision to sentence the founder of the Silk Road website to life imprisonment.

Reason.com Editor-in-Chief Nick Gillespie correctly drew attention to the injustice of Ross Ulbricht’s sentencing, which was clearly grounded in the judge’s insistence that Ulbricht be made an example. The injustice was so self-evident to Reason.com’s readers (or, at least, those who regularly post comments) that they could hardly restrain their invective. They posted a string of comments that described (unimaginatively, it must be said) various unhappy, violent situations in which they hoped the judge might someday find herself.

But were those comments, disgraceful as they were, actual “true threats” against a federal judge? (Full disclosure: I’ve been a contributor to Reason for more than 20 years, and I couldn’t dispute that the website’s comments section is often ridiculously toxic.)  Study of the federal law of threats, up to and including the most recent decision in Elonis, suggests the comments on Gillespie’s posting almost certainly don’t quality. (The comments are reproduced here—entirely lawfully and unthreateningly—by legal blogger Ken White.)

It seems likely that U.S. Attorney Preet Bharara knows full well, especially in light of the Elonis case, that the commenters didn’t commit “true threats.” The purpose of the subpoena appears to be less prosecution than intimidation.  That would qualify as prosecutorial overreach.

The history of American free-speech law is full of cases in which defendants say disturbing but not truly threatening things. Over time, constitutional lawyers have learned to be more skeptical and judicious about such prosecutions. There’s no good reason Bhahara ought not have applied similar skepticism in considering how to treat Reason.com’s caustic commenters.

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