In his posting, Turner wrote “Let me be the first to say this plainly: These judges deserve to be killed.”
That statement alone might not be enough to cross the line established by the Supreme Court in 1969 in Brandenburg v. Ohio as advocating imminent violence. Violent speech is protected under the Constitution absent such a threat of imminent violence.
However, Turner went further and posted the work addresses of the judges as well as their photos — while promising to later supply their home addresses. He also included a map that showed where the anti-truck pylons were located.
Even with the addition of the addresses and map, I am not sure that this is unprotected speech. The location of the court building is public information. Moreover, many groups have protested at the homes of judges and politicians. It will be interesting to see what the prosecutors cite as moving this speech over the line under Brandenburg. Obviously, this was a stupid and reprehensible statement made by an extremist. He may, however, have a viable free speech claim to raise with the court.
This is a signature form of speech for Turner. When judges ruled against white supremacist Matt Hale in 2005, Turner also publicized the names and addresses of the judges. In 2006, he used the same violent language with regard to disfavored politicians:
“We may have to ASSASSINATE some of the people you elect on Nov. 7! This could be your LAST ELECTION CHANCE, to save this Republic… Sorry to have to be so blunt, but the country is in mortal danger from our present government and our liberty is already near dead because of this government. If you are too stupid to turn things around with your vote, there are people out here like me who are willing to turn things around with guns, force and violence. We hope our method does not become necessary.”
In 2008, he called for direct violent against against Lexington, Massachusetts school superintendent Paul Ash for creating a curriculum supporting gays and lesbians:
“I advocate parents using FORCE AND VIOLENCE against Superintendent Paul B. Ash as a method of defending the health and safety of school children presently being endangered through his politically-correct indoctrination into deadly, disease-ridden sodomite lifestyles.”
This past use of such violent language could curiously support Turner to show that there is no imminent danger since no violence followed such writings over the years. It does seem that Turner has only two political responses in dealing with contemporary policy issues: professed agreement and assassination. However, the constitutional question is whether this is merely over-heated and juvenile language or an actual instigation of assassinations.
Ironically, Easterbrook and Posner are not liberal activists but conservative icons. Both are former law professors who have written highly influential works. In Posner’s case, he is viewed as the virtual father of the Law and Economics school. He writes a book roughly every thirty seconds, usually with the title “The Economic of . . . ” Indeed, I expect that next week we will see a new book entitled “The Economics of Imminent Threats.”
The decision by Easterbrook, Posner and Bauer on the gun ban may have pushed Turner over the edge, but it was a saving grace for Supreme Court nominee Sonia Sotomayor, who has been under fire for her support of the same logic in a Second Circuit case, here.
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