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
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.
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
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.
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.
Bring back dueling
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?
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.
I better be careful….wait I don’t have a radio show… I might be safe for now…. Maybe…
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.
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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.
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.
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.
“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].”
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.
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.
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.
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.
It is time for a Revolution
Citing the Founding Fathers now counts as Radical Speech.
Shows just how far this country has sunk into fascism.
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.
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.