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  Suppressing Free Speech Here at Home
by Jacob G. Hornberger
While the Ayattolahs in Iran are intimidating people into ceasing their criticism of the government, U.S. Justice Department prosecutors are doing the same here in the United States, specifically in the trial of U.S. vs. Robert Kahre, which is currently taking place in Las Vegas. Upset with critical comments posted by American citizens regarding the prosecution of a man who used gold and silver coins issued by the U.S. mint as legal tender, the prosecutors have been abusing their power to issue grand-jury subpoenas. This prosecutorial-abuse saga, which I blogged about here, began with an ordinary news article in which the Las Vegas Review Journal explained what the Kahre prosecution was all about. Dozens of people posted comments under the article, most of which were critical of the government and the prosecution. Obviously stung by the criticisms, the prosecutors responded by serving a grand-jury subpoena on the paper demanding that it produce all identifying information on all of the people who had posted the comments. After the paper resisted the subpoena, the prosecutors issued a new subpoena that limited their request for identifying information to only two commentators. One commentator wrote: “The sad thing is there are 12 dummies on the jury who will convict him. They should be hung along with the feds.” Apparently the other commentator bid 12 Quatloos (Star Trek money) that one of the prosecutors would not celebrate his next birthday. It would seem rather obvious that the issuance of the narrower subpoena is prima facie proof that the primary aim of the prosecutors was intimidation when they issued their original subpoena. After all, if they really were concerned about only two comments, why subpoena identifying information about all the other commentators? Moreover, in my opinion the aim of the narrower subpoena is about intimidation as well. Here’s why: The central issue is: Is there any reasonable possibility that the Justice Department is going to prosecute the commentators for the precise words they used in their comments? The answer to that question has to be “No.” After all, this is not Iran but rather the United States, a country in which people are still free to express critical opinions about what their government is doing, no matter how repugnant. Consider the first comment — that the jury “should be hung along with the feds.” The word “should” is a subjunctive and, as such, does not connote anything but an opinion. It is, in fact, a common figure of speech that has long been used in this country. If it were a criminal offense to use it, the penitentiaries would be even more filled than they already are. Consider the second comment, where the commentator bids Quatloos that the prosecutor does not celebrate his next birthday. Is there any reasonable possibility that a jury would convict a person of a crime or that a federal court would uphold a criminal conviction based solely on the utterance of that precise phraseology? Again, the answer is “No.” After all, it is impossible to determine any objective meaning to the phrase. Is the commentator suggesting that the prosecutor might not reach his next birthday because of a heart attack brought on by the stress of the Kahre trial? Or is he implying that someone might do harm to the prosecutor? We don’t know. Far more information would be needed to sustain a criminal conviction on the mere utterance of those precise words. So, what’s the point of subpoenaing the newspapers records in an attempt to secure the identity of the commentators, if it’s not to intimidate and scare the commentators and everyone else? After all, everyone knows that the commentators can refuse to answer any questions before the grand jury based on the Fifth Amendment, something they would almost certainly do. In that case, the prosecutors would be left with nothing more than the phrases posted on the newspaper’s website. But in the process, the prosecutors will have forced the newspaper to identify commentators on its website and forced the commentators to appear before a federal grand jury. They will also have threatened the commentators with the prospect of a federal criminal prosecution for what they wrote. In other words, the prosecutors will have sent a powerful message to the American people, the same message those Ayatollahs are sending to the Iranian people: “If you know what’s good for you, shut up and stop criticizing what we’re doing.”
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Tags: Jacob G. Hornberger Free Speech Ayattolahs Robert Kahre Justice Department
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