A 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