Why is the Justice Department bullying a small libertarian magazine?

Reason has a vitriolic comments section. But that doesn't mean the government can push the magazine around.

Reason magazine
(Image credit: Illustrated by Sarah Eberspacher | Covers courtesy Facebook.com/Reason Magazine)

If you're gay or lesbian, transgendered, or just want to explore your sexuality without judgment or legal constraint, it can seem like Americans are living through a new birth of freedom. The same holds for billionaires aiming to influence presidential elections. And, in a rapidly expanding list of cities and states, for those who want to smoke, buy, and sell marijuana.

If, on the other hand, you're a devout Christian business owner who wants to avoid being forced by anti-discrimination laws to provide services for a same-sex wedding, or a doctor who would prefer not to hire yet another consultant to help ensure compliance with the maze of regulations surrounding the Affordable Care Act, or a professor who fears losing her job for daring to shake the moral certainties of some of her students — in such cases, the second decade of the 21st century can feel like the dawning of the age of soft authoritarianism.

So which is it? Libertarian paradise? Or Pink Police State?

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The answer, of course, is both. Americans are becoming more and less free at the same time. It all depends upon the issue.

For a rather egregious example on the authoritarian side of the ledger, consider the recent odd and disturbing events at the libertarian magazine Reason.

Like all journals of opinion, Reason enjoys the nearly limitless press freedoms enshrined in the First Amendment, and it has flourished in the online ecosystem of the internet. (Intellectually speaking anyway; I have no idea how the magazine is faring economically.) In addition to sponsoring the monthly print magazine, the nonprofit Reason Foundation hosts a vibrant website, blog, and video operation, all of them committed to advancing a libertarian agenda of "Free Minds and Free Markets," as the magazine's logo puts it.

This principled devotion to liberty sometimes leads the magazine to stake out positions that could charitably be described as quirky. That's the category into which I'd place editor Nick Gillespie's decision to post on its website Ross Ulbricht's pre-sentencing letter. Ulbricht, you see, is the founder of Silk Road, a website that became an online black market for narcotics and other illegal activities. This made Ulbricht a folk hero to more anarchistic libertarians, but it understandably turned him into a criminal in the eyes of the federal authorities.

Ulbricht was convicted earlier this year, and before his sentencing, he wrote a plea for leniency to Judge Katherine Forrest. So unswayed was she by his entreaties that she sentenced Ulbricht to the maximum penalty of life in prison, which was even more than the prosecutor had asked for.

Gillespie published the letter on May 31. Predictably, the comment thread attached to it quickly became a fever swamp filled with vulgarity and vitriol. Another day, another out-of-control online comment thread — what else is new? Yet in this case the problem went a bit farther than normal when a handful of anonymous commenters threatened Judge Forrest with murder.

That's more than enough to warrant deleting those comments and banning the people who made them. But that wasn't good enough for the Justice Department, which decided to issue a subpoena demanding that Reason turn over, in the words of an NPR report, "‘any and all identifying information' for the users, including subscriber accounts, credit card information, associated email addresses, and the unique IP address of each post."

Commenters like the ones who drew the attention of the federal authorities are pests. They poison online discourse on websites all over the internet. They're a menace to civility and manners. But do they really constitute a threat sufficient to justify the government issuing subpoenas to magazines, demanding personal information about their readers, putting financially vulnerable publications in the position of having either to comply with the order or risk spending vast sums of money on pricey legal counsel?

And what of the loudmouthed jerks themselves — the people who spend their days anonymously spewing venom online? Sure, they're irritating. But they're also taking advantage of anonymity freely offered to them to express unpopular and extreme views. Do we really want to live in a country where such people need to fear a government unmasking followed by the FBI knocking on their door, asking intimidating questions and threatening them with prosecution?

That Reason is a libertarian magazine that often warns ominously, and occasionally with more than a little paranoia, about government excess and overreach adds an extra layer of irony to this particular story. But that shouldn't prevent us from recognizing who's bullying whom.

Even the paranoid sometimes have enemies in high, powerful places.

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Damon Linker

Damon Linker is a senior correspondent at TheWeek.com. He is also a former contributing editor at The New Republic and the author of The Theocons and The Religious Test.