Peter Slevin in WaPo:
Internet radio host Hal Turner disliked how three federal judges rejected the National Rifle Association’s attempt to overturn a pair of handgun bans.
“Let me be the first to say this plainly: These Judges deserve to be killed,” Turner wrote on his blog on June 2, according to the FBI. “Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.”
The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of “anti-truck bomb barriers.” When an FBI agent appeared at the door of his New Jersey home, Turner said he meant no harm.
He is now behind bars awaiting trial, accused of threatening the judges and deemed by a U.S. magistrate as too dangerous to be free.
Martin Garbus at HuffPo:
The case has two separate elements. First, the arrest of Turner on the basis that he might kill the judges. Secondly, the arrest of Turner because he might incite others to kill. I believe his arrest and conviction on either ground is not justified.
Under existing First Amendment law, he is probably protected. Should he be? Do we have to wait until a murder attempt actually gets underway? Does existing First Amendment law have to be changed, and does there have to be a law that more particularly deals with “true threats”?
There are an increasing number of threats that emanate from right-wing radio, television hosts and bloggers, now presenting important First Amendment issues anew. Whichever case goes to the United States Supreme Court will undoubtedly create new law.
Nothing has happened to the three judges, although we cannot assume something will not happen. For me, this is a very troublesome and difficult case.
If we imagine that instead of Mr. Turner, a Vietnam or Iraq war protester says on television, or radio or his blog, that the president deserves to die. He says, “The blood of the president must flow, and his failure to protect democracy requires that he die.” It would be protected. If he says it before an armed mob standing outside the White House ready to rush the guards, it would not be protected.
Julie Hildon at Findlaw:
This case is strongly reminiscent of the “Nuremberg Files” case, about which Sherry Colb wrote a prior column for this site. There, the American Coalition of Life Activists created a website that gave the names and addresses of abortion providers and supporters, along with their photos. When a person on the list was killed, his or her entry was crossed out; if he or she was wounded, the entry was grayed out. But the attacks were accomplished by third parties, not the Coalition, and without the Coalition’s aid.
Some of the doctors on the list sued the website’s authors, and obtained a $107 million jury verdict. However, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed the award on First Amendment grounds. The panel refused to allow political speech to be punished simply because it “makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party.”
The Turner case is somewhat parallel to the Nuremberg Files case because Turner’s comments, too, surely make it at least somewhat more likely that the three judges he named, and whose information he provided, will someday come to harm.
Moreover, Turner’s blog – like the Nuremberg Files site – included information that would make it easier for readers to personally confront the people listed on the site, either to attempt to change their minds through peaceful protest, or to attempt to harm or kill them.
But in some sense, Turner went further than the Nuremberg Files site, too. His comment that the judges “deserve[d] to die” says implicitly what the Nuremberg Files site only implied – but implied very strongly, as Colb pointed out in her column.
In addition, there is an element here that was totally missing in the Nuremberg Files case: a particular statement that could itself be characterized as a threat. Turner’s comment “Observe the Constitution or die” closely resembles a classic threat such as a robber’s “Your money or your life.” And since, in Turner’s view, the judges had already failed to observe the Constitution (in particular, the Second Amendment) when they issued the decision he disliked, the meaning of his words become even more ominous than the hypothetical robber’s.
Surely, too, if Turner had made that same comment directly, in person, to one of the three judges, his words would have been seen as a prosecutable threat. Yet, in contrast, imagine if the Nuremberg Files authors had held up a poster of their online list, with its names of deceased abortion providers crossed out, in front of abortion doctors who were walking into their clinics; they still likely would have been held by the Ninth Circuit panel to be protected by the First Amendment. For this reason, too, Turner’s speech seems more threatlike than that of the Nuremberg files.
Doug Mataconis at Below The Beltway:
Brandenburg v. Ohio was a 1969 case in which the Supreme Court overturned the conviction of a member of the Ku Klux Clan who gave an incendiary speech that wasn’t all that different from Turner’s blog post:
“This is an organizers’ meeting. We have had quite a few members here today which are – we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.
“We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.” [
The Supreme Court struck down the conviction under an Ohio state statute that prohibited “”advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism,” and stated that such incendiary speech can only be the subject of prosecution under very limited circumstances:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Under this standard, Turner’s original blog post where he said “These Judges deserve to be killed,” was clearly protected speech. As vile as it was, he was an expressing an opinion, not directing someone to go and commit a criminal act.
The problem comes with his actions the next day, when he published maps to the Chicago Courthouse which noted the location of bomb barriers. When combined with the previous day’s blog post, that would seem to cross the line from mere political advocacy to incitement of a criminal act. He’s not just saying “these judges deserve to be killed,” he’s saying “these judges deserve to be killed and here’s how you can do it.”
When Turner did that, he crossed a line.
In a 1918 case called Schenck v US, the Supreme Court articulated the “Clear and Present Danger” doctrine, in which Justice Oliver Wendell Holmes, Jr. famously noted that “shouting fire in a crowded theater” is not protected speech. This turned out to be impossible to nail down and was ultimately replaced with something called the “Direct Incitement Test” in Brandenburg v. Ohio in 1969. It ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”
Ultimately, then, what we have is an ad hoc system, much as we do in obscenity cases. Of the latter, Justice Potter Stewart famously admitted that, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
We’re essentially in the same boat with incitement to violence. There are no bright lines, so we’re left up to the discretion of individual prosecutors and judges. That is, to say the least, less than ideal. But it’s likely as impossible to articulate an a priori definition here as it is for obscenity.
UPDATE: Jacob Sullum in Reason
UPDATE #2: Huffington Post