Second Circuit Upholds Conviction Of Radio Host For Attacks On Judges

nicubunu_open_mouthA troubling conviction has now become a troubling precedent for the first amendment. A right-wing Internet radio host, Harold C. Turner, was earlier convicted of threatening three federal judges. Turner, 48, posted comments attacking the three appeals court judges who had upheld a ban of handguns in Chicago. He was charged with a single count of threatening to assault or kill the judges with the intent of impeding their official duties. The referenced judges testified against Turner. They are Judges Frank Easterbrook, William Bauer, and Richard Posner. Now the United States Court of Appeals for the Second Circuit has upheld the conviction in decision that could expose more speech to criminal penalties.

Here is how the Second Circuit laid out the facts:

On June 2, 2009, Harold Turner published a blog post declaring that three Seventh Circuit judges deserved to die for their recent decision that the SecondAmendment did not apply to the states:
If they are allowed to get away with this by surviving, other Judges will act the same way. These Judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die. Turner’s lengthy commentary declared that the blood of these three judges would “replenish the tree of liberty,” that the judges “didn’t get the hint” sent by a gunman who had murdered the family of another federal judge in Chicago, that they had not “faced REAL free men willing to walk up to them and kill them for their defiance and disobedience,” that their ruling was “so sleazy and cunning as to deserve the ultimate response,” and that the judges “deserve to be killed.”
The next morning Turner posted photographs, work addresses, and room numbers for each of the three judges, along with a map indicating the location of the courthouse in which they worked, and a photograph of the building modified to point out “Anti-truck bomb barriers.”

That is clearly more detail than any of us are comfortable with. Like most people, I find the posting reprehensible and disgraceful. However, he did not directly ask people to kill the judges or say that he would kill them. He was using obnoxious violent speech. For any earlier column on why such speech should be protected, click here.

The three well-known judges (including Posner and Easterbrook shown here) clearly wanted Turner convicted and the Justice Department not only tried the case but did so three times to secure a conviction. Two prior juries could not reach a verdict despite the testimony of the three judges.

Turner testified that he was expressing a critical opinion. He was also a paid FBI informant who was recruited to flush out dangerous neo-Nazis and white supremacists. The FBI confirmed that he worked for them off and on through the years.

He was sentenced to 33 months in prison. The Second Circuit opinion leaves a dangerous vague standard for the prosecution of speech. Judge Livingston wrote for the majority but the opinion largely repeats the statements and says conclusorily that these must be actual threats:

Here, Turner did not merely advocate law violation or express an abstract desire for the deaths of Judges Easterbrook, Bauer, and Posner. He posted photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse. Moreover, Turner’s intent to interfere with these judges—to intimidate them through threat of violence— could not have been more clearly stated in his pointed reference to their colleague, whose family members had been killed: “[A] gunman entered the home of that lower court Judge and slaughtered the Judge’s mother and husband. Apparently, the 7th U.S. Circuit court didn’t get the hint . . . .”

Judge Rosemary Pooler wrote in a dissent that Turner’s commentary was protected speech and did not constitute a true threat:

Turning to the case at hand, I would hold that Turner’s communications were advocacy of the use of force and not a threat. It is clear that Turner wished for the deaths of Judges Easterbrook, Posner, and Bauer. [Majority Op. at 4-5.] But I read his statements, made in the passive voice, [see id. at 22], as an exhortation toward “free men willing to walk up to them and kill them” and not as a warning of planned violence directed toward the intended victims, [id. at 5.] This reading is furthered by the fact that Turner’s words were posted on a blog on a publicly accessible website, [id. at 4, 8], and had the trappings of political discourse, invoking Thomas Jefferson’s famous quotation that “[t]he tree of liberty must be replenished from time to time with the blood of tyrants and patriots,” [id. at 5.] Although vituperative, there is no doubt that this was public political discourse. His speech might be subject to a different interpretation if, for example, the statements were sent to the Judges in a letter or email. See Malik, 16 F.3d at 50. However, Turner’s public statements of political disagreement are different from a threat.

There was a concern that most judges would be incensed not only by the statements of Turner but the reference to the earlier killing of a judge. Some are likely to feel that the decision reflected that identification with the targets of these comments. I am not willing to make such an assumption about the judges. Rather, I am concerned how this standard can now be used for the myriad comments directed against corporate and political figures on the Internet. The prior bright line of protection of speech avoided this slippery slope.

What the opinion lacks is any firm idea where to draw a line between opinion and threat. How much detail crosses the line? Is it enough to call for the deaths of public officials without the map but with the pictures? That line is likely to be tested in new cases and it is likely as prosecutors bring more violent speech under the auspices of the criminal code.

Source: Chicago Tribune

40 thoughts on “Second Circuit Upholds Conviction Of Radio Host For Attacks On Judges

  1. I can understand a concern for any decision that does not give a clear and narrow standard that other courts could follow, but I do think that the defendant’s statements did amount to a threat to those particular judges.

  2. While there was detail in the posting, none of it seems to be anything other than publicly available information. True, the posting was hyperbolic and contained a lot of information, but it was not a direct threat. Such a ruling certainly seems to substantially lower the bar for what constitutes incitement as well threat.

    I think Judge Pooler got it right in the dissent.

  3. Citing the Founding Fathers now counts as Radical Speech.
    Shows just how far this country has sunk into fascism.

  4. I agree with the dissent and also with G.Mason above. But I am unsure as to what kind of revolution. We have had a revolution in recent years with the defecation on our Constitution. So, I would describe it as the counter revolution. We might have to dig up Tom Paine’s long dead body and run him for President. No Democrat or RepubliCon seems of the right caliber. We might need someone like Washington who could shoot straight. So the word caliber is not a pun.

  5. I don’t see how this cannot be interpreted as threatening. Declaring that these judges must die and then meld this with their locations and suggestions that truck bomb defenses are emplaced around the building they work in.

    This is akin to dancing around the issue to “CYA” by making deniable claims such as “Oh, I didn’t expressly state that they should be killed.” but yet at the same time conveying to the judges they were in jeopardy and making suggestions to incite others to take out violence against these judges. I find it rather detached how the dissenting judge ruled using grammatical elements such as passive voice to declare this was not threatening. That in my view is invalid. It declares that all a parson has to do is use grammar tricks to create insulation from prosecution but can still convey threats to the person who interprets it so that they fear for their safety.

    Everything coupled together it is hard to deny, maybe if each of these elements was by itself maybe it would not be as offensive.

  6. Darren,

    Voices and words have meaning. What they have done is open a hole for inference – a subjective standard – to hold sway over active voice (and possibly objective implication as well). Not long ago, a man in California was investigated and charged with threatening Obama for posting something along the lines of “somebody’s going to shoot this guy”. The case was dismissed because it was a passive statement and no evidence existed of him taking any action in furtherance of a plan to shoot Obama. Under the standard in this case, which is more than a bit vague, the defendant in that case could have just as easily been convicted. Were his comments hyperbolic? Without question. Were they hyperbolic to the point of unwise? Apparently so. But without an active call to harm or a direct threat, it wasn’t incitement or a threat. This is one of those instances where the slippery slope argument concerning the precedent this sets has some merit. Political free speech is subject to a strict scrutiny analysis. This erodes that standard.

  7. Gene

    I see what you mean. But I would rather see something more like the statements made against these judges as being criminal rather that what was used in the example you provided with President Obama. yet, I can see the worse sitution being the slippery slope which chills free speech as when applied to an entire society.

  8. How much detail crosses the line?

    Yes, it would seem that the issue is the quality not the quantitiy.

    As we go down hill the new mantra is likely to be “at least we are not as bad as ________ [insert your most hated foreign nation].”

  9. Dredd, I took part in one of those conversations with my brother. We were talking about the NSA spying on all and he said there is no other place he would rather be than in the US. I asked why and he was somewhat taken aback. He said, can you image what the government would do if you lived in China? I said when you start comparing the US to China, things have taken a certainly turn for the worse in the US.

  10. Wow, this one is a tuffy for me. And I am a free speech libertarian. Ouch.

    I guess it comes down to the statute, and the elements of the crime. That is where I would start in trying to figure out whether Harold Turner actually threatened the lives of the judges.

    I would have to say, his oratory and specificity of what he was advocating came soooo close to the line, it really is a judgment call.
    I am heartened somewhat by the two juries that did not convict, and by judge Pooler’s dissent in adherence to principle over what must be an uber statist inclination to convict this guy.

    My gut says there should be a lesser crime here, maybe something like incitement to violence, and technically I can see the defence that he was careful not to make any specific directed threats.

    I also agree with Mr. Turley that the most defective part of this whole thing is the decision that does not provide enough notice as to what part exactly does a person become guilty of the crime.

    I guess if I were a judge here, I would find him guilty, but be much clearer as to where he crossed the line between existential advocacy for a bad thing to happen to someone, and the more require specificity needed to conclude he actually called for someone to kill these judges.

    Like I said, it is a toughy.

  11. voltaic 1, June 24, 2013 at 7:29 am

    Dredd, I took part in one of those conversations with my brother. We were talking about the NSA spying on all and he said there is no other place he would rather be than in the US. I asked why and he was somewhat taken aback. He said, can you image what the government would do if you lived in China? I said when you start comparing the US to China, things have taken a certainly turn for the worse in the US.
    ===================================
    The law comes under social sciences, not the “hard sciences.”

    The myth of progress works strongest in the social sciences.

    They have been known to turn about and then go in a completely opposite direction historically.

  12. I better be careful….wait I don’t have a radio show… I might be safe for now…. Maybe…

  13. It can be difficult to draw the line in a case like this but we have to draw lines all the time. As presented, I agree with the decision to convict.

  14. There’s a point left out also: Wasn’t the radio host and radio station acting as an agent of the government – a quasi front company – governed by the U.S. Constitution and federal “color of law” crimes? Not a private entity.

    Essentially on a fishing expedition that could violate the federal Privacy Act which carries stiff federal penalties for invading citizen’s private information.

    In other words wasn’t the entire program built on an illegal foundation which would suppress any subsequent evidence?

  15. Interesting. I wouldn’t suggest that they die, but they should be aware of the day when judgment is passed on them with the ONE they hold their hand on and to, unless that’s a ruse inside the judiciary and if so, then tell the American people that.I have some interesting headlines coming for a special report to expose the 7th Circuit and others. They cherry-pick on following the law. I think that if you wish death upon them publicly for someone to do it, you might have problems yourself with the MAKER. The point of living has to be not to be goofy in life to be abolished afterwards by HIM.I caught one major case and it was a complete accident or relied on a complete unconscious emotional decision, completely not my character. I was in a ghetto with some ghetto minded people, trying to do them a favor and ended up needing a lawyer. It’s funny, when I’m Downtown Chicago having a drink, I meet people from Switzerland, St. Louis, etc. and its nothing but love. You go in the hood and its nothing but jealousy, but what’s more shocking, that I came to find is that judges don’t follow the law and by conspiracy to do so. I’m not familiar with the criminal justice system like that and then I find that their behavior can be worse than Al Capone’s in effect, as far as honesty.Wow!Regards,A.P.

  16. I moved to Sirius satellite radio several years ago. It has gotten angrier out there on the public waves. I listen to Symphony Hall, NPR, ML Baseball, and a little news. maybe that’s why I’m so less angry than most of the public and folks here. Although the Brewers can piss me off @ times.

  17. When Criminals run, I mean ruin, the courts, well of course they want no dissenters to expose their treasonous crimes. What he should have said, being a pacifist that I am, is something to the effect that these judges should be tried for treason against the people and their attempts to mare the constitution, again and again and all of them and their UNPATRIOTIC ACTS and TORTUROUS TORTURE RULINGS and their FAILURE TO PROSECUTE WALLSTREET CRIMINALS and their FAILURE TO PROSECUTE WAR CRIMES and their TORTURE OF WHISTLEBLOWERS and their overall desecration of our nations laws. Now at the end of a good Treason trial, where they are held accountable for their crimes and Treason is the best, coupled with Economic Terrorism and War Crimes, if found guilty, well the punishment according to law is death by hanging. So start nailing the gallows and tying the rope and let the guilty parties necks snap crackle and pop. Then, when they are good and dead, grab their accountants and recover all the bribe monies they got for aiding and abetting their wall street gangster pals by failing to prosecute for their crimes. Cite them for rigging the market crashes with no fear of prosecution from the courts of complacency, like letting their lawyer buds who committed FORGERY (aka as ROBOSIGNING) and housing market manipulations off the hook for payola and let them hang as examples to the next criminals who attempt to take over our courts and nations. As always, nooses free @ http://www.iviewit.tv

  18. In this case isn’t it essentially an FBI front company that is driving the alleged incitement – where none previously existed? Not questioning their motives only their legality and judgement.

    If the FBI is going to create this situation, shouldn’t they also try to educate and moderate these people instead of making them more radical? It’s like a business manufacturing their own “supply & demand” where none existed.

  19. Nick:

    Siriusly, it is the best thing I did way back when.

    I ponied up the lifetime subscription, and never looked back.
    It makes driving that much more appealing, like a friend I come back to and only see when I am on the road.

  20. “However, he did not directly ask people to kill the judges or say that he would kill them.”

    I consider myself a free speech advocate, but I am okay with this conviction. True threats have long been held not to be protected First Amendment speech. I agree with that. Once you accept that proposition, then it’s a question of distinguishing “true threats” from simply violent and vituperative speech.

    The quote above by Professor Turley is one way to do this; basically taking a formalistic grammatical look at the speech. But, speech and communication is much richer and complex than just a simply grammatical rules. Words and speech can have implicit meanings that go beyond their explicit meanings. Yes, this does make for a much fuzzier line of what is or is not protected. But, it’s much truer to the way real communication works.

    Some have argued that this makes for a slippery slope toward criminalizing violent speech. That’s possible, but the true threat standard has not been changed and there’s still a jury and appeals court that would have to convict to act as a brake on any slide toward criminalizing all violent speech.

    On the other hand, taking a formalistic approach ignores the fact that true threats can be made implicitly. Such a rule would create a slippery slope in the other direction of allowing all sorts of true threats as long as the threatener was smart enough not to explicitly say that he was going to do the threatened action.

  21. GaryT, I assume the lifetime transfers to new cars purchased. I discovered serendipitously when I added Sirius to a second car that they’re one of these companies that are quick to negotiate. If you are comfortable, what did you pay for a lifetime subscription?

  22. **Ross 1, June 24, 2013 at 10:32 am

    In this case isn’t it essentially an FBI front company that is driving the alleged incitement – where none previously existed? Not questioning their motives only their legality and judgement.

    If the FBI is going to create this situation, shouldn’t they also try to educate and moderate these people instead of making them more radical? It’s like a business manufacturing their own “supply & demand” where none existed. **

    Ross,

    1st, I didn’t care much for Turner’s comments before the comments about the judges.

    I thought him to be a trouble maker seeking to cause fools to go out, commit violence & get themselves in trouble.

    Then I hear on the news he is said to be an agent of the FBI.

    Aside from Prof. Turley’s opinions on the matter, shouldn’t there now be enough info to trigger a public grand jury investigation into the NSA/govt spy records of the FBI & the judges phone computer records, etc., to see what kind, if any, criminal acts by some of those inside govt were planning against our govt by using Turner?

  23. Re: Oky1

    Good points! The real danger here in my view is that well-intentioned FBI officials by and large seemed to have lost sight that their supreme loyalty oath (that they agreed to) is to uphold the U.S. Constitution/Bill of Rights.

    These officials may mean well but they are judging the character and integrity of regular citizens (like us) but appear to have no regard for the U.S. Constitution and the Bill of Rights. Via Freedom of Information Act request I have an actual copy of their oath of office – it’s only one loyalty oath (governing their job duties) and it’s to the U.S. Constitution.

    If they are going to perpetrate things like CoinTelPro and warrantless searches – they have no integrity to judge any of us!

  24. You probably already know, but there has been a war going on inside our govt.

    There are the good people trying to do the right thing , then the rotten aholes working plans of evil.

    I used to ask people in positions power why they weren’t trying to fix things & they’d tell me, ya I know things are horrible, but I’m just a few years from retirement & I’ve got my family to think about, that’s why.

    20 years ago or even 10 yrs ago that might of been a viable plan, but in today’s time I think the rest of us have no choice but to engage to attempt to correct much of the current criminal corruption inside govt.

  25. Does anyone reading this buy food or food products that contain water from California?

    Have you ever thought about what’s causing the 3000%-10,000% increases in certain kinds of cancers?

    http://www.google.com/search?q=+california+approves+1000%25+increase+in+glyphosate+in+the+water#tbs=qdr:m&sclient=psy-ab&q=naturalnews%2C+california+approves+1000%25+increase+in+glyphosate+in+the+water&oq=naturalnews%2C+california+approves+1000%25+increase+in+glyphosate+in+the+water&gs_l=serp.3…97893.119975.2.120788.39.32.7.0.0.1.470.5182.1j27j1j1j2.32.0…0.0…1c.1.17.psy-ab.166_W9-Lga4&pbx=1&bav=on.2,or.r_qf.&bvm=bv.48293060,d.aWc&fp=3eb584e8c7d55ddf&biw=1280&bih=881

  26. Turner was deliberately seeing how far he could go. He found out. Inciting others to kill people should not be protected speech.

    Turner is shouting, “Kill these judges!” in an insane asylum, which is what this country has become.

    No sympathy from me. If I think someone needs killing, I’ll do it myself, not try to egg others on. I don’t condone murder as a political statement.

    Is this how gun-rights advocates should persuade others? By threatening to kill their opponents? I don’t think this will sway many minds. Seems counter-productive.

    Since, of course, guns don’t kill people, was Turner advocating that someone else (not Turner) kill these judges by pointing fingers at them and shouting “BANG!”? Or perhaps bore them to death?

    Turner won’t be allowed guns in prison, I suspect. I like that.

  27. Bob Kauten,

    I don’t know the whole story behind this Turner guy & I haven’t the time to dig into it that much, but from what is known is public about this case leads many us to question if this is just another case in a long line of cases where the govt/or parts of the govt, caused & promoted action, criminal & otherwise, to push a public narrative some in govt wished to push, furthering their political grip over the citizen’s rights & adding to their personal power & fortunes.

    ie: False Flag attacks = Fast & Furious, 93 World Trade Center attack, Gulf of Tonken, Boston Marathon(?) etc., etc……..

    http://www.infowars.com/fbi-operative-hal-turner-says-government-urged-him-to-make-violent-statements/

  28. Far too many judges find far too many people guilty of things that amount to absolutely nothing but freedom. Kiss it goodbye.

  29. If we can take Posner as the example, then the funny part here (if there is a funny part) is the judges’ disdain for making the bill of rights applicable to the states — and thus NOT limiting the power of states — via incorporation by the 14th amendment.

  30. The times that I have witnessed in the presence of “Judges”, I have found the judges to be incompetent and bias in the majority of their cases. The close ties with the District Attorneys and the good ole boy bias is unbelievable. The juror’s are pawns for the DA and kept ignorant of their rights as jurors. The jury has the highest power in that courtroom, even over the judge.

  31. Judge Pooler’s dissent is based on false reasoning and selective interpretation. “Turner’s communications were advocacy of the use of force and not a threat. ” That is a rather benign expression of what Turner did. His communications were far more than advocacy of the use of force. He advocated murder and provided a plan for its accomplishment. This type of hate speech should not be protected.

  32. People usually don’t even think about violence if there is an easy way to deal with what might be a problem. If they’re mad at their neighbor’s dog, usually they complain before they shoot it. The court system should make it a lot easier to complain about judges.

    I filed a complaint against a former federal clerk of court Theresa Owens that she had ordered that I should be imprisoned without being charged with a crime. Judge Easterbrook denied this and claimed that I was charged with a crime. They say such decisions cannot be appealed.

    If there had been a good complaint public website, I could have just uploaded the transcript and other documents. An assistant U.S. attorney named Robert Anderson showed up and said that the feds weren’t involved, that I wasn’t charged with a federal offense but she ordered that I should be detained anyway and I was a high security prisoner for 3 weeks. The hearing wasn’t on the court calendar, which she later changed, but I have a pdf of the original court calendar. She wasn’t referred to my case either but somehow self appointed. For the entire year Theresa Owens didn’t officiate at anything other than to order that I should be held without charges because Judge Nottingham told her on the phone that he wanted me brought to him. My hearing wasn’t urgent and didn’t have to be held on Friday, it could have waited for a regular magistrate on Monday. Thus, since I was arrested on Thursday night after the USMS sent a fax saying I was to be detained on a federal felony, a felony for which there was no grand jury and which I wasn’t charged with, I still think there should have been a big investigation. I still haven’t got the Prisoner Tracking System report for that detention and the feds claim that they don’t have any records of even investigating me for a crime.

  33. It is ironic that Judge Posner is the author of the opinion that struck down Illinois’ concealed carry ban, and is therefore currently the hero of gun rights advocates.

  34. The DJ’s comments are awfully scary to me.
    What if this did or will end in a judges death?
    To me this is like the Charles Manson legal conundrum.
    How do you convict someone for telling someone to commit a crime that is later committed?
    Obviosly this it is more than a popular idea to arrest the criminally passive order-giver as both Manson & Capone were convicted.
    For that matter RICO doesn’t seem to address the problem head-on.
    RICO sounds a little gimmicky.
    Is this different because it was not advice given to a specific individual who later carried out the crime?
    Is there no crime in trying to incite the public.
    I am not in the legal profession but isn’t this similar to Manson?
    If someone told a stranger to kill someone without tangible compensation & the stranger committed the advised crime do we arrest the person who advised the stranger?
    Personally I never really understood these legal principles.
    Maybe someone can clarify.

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