Hal Turner and the Limits of Free Speech

How far does the 1st Amendment go?  Hal Turner is about to find out.

Hal Turner, an Internet radio host and blogger, posted photos of the three judges who displeased him and a map of the courthouse where they work. (By Jessica Hill -- Associated Press)

Hal Turner, an Internet radio host and blogger, posted photos of the three judges who displeased him and a map of the courthouse where they work. (By Jessica Hill -- Associated Press)

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.

[…]

Turner’s attorney said the prosecutors overreacted.  “He gave an opinion. He did not say go out and kill,” defense attorney Michael Orozco said last week after unsuccessfully seeking bail. “This is political hyperbole, nothing more. He’s a shock jock.”

That is not how U.S. Attorney Patrick J. Fitzgerald and his prosecutors see the case. They charged Turner, a blogger admired by white supremacists, with threatening the lives of three judges on the U.S. Court of Appeals for the 7th Circuit: Frank Easterbrook, Richard Posner and William Bauer.

[…]

Turner, 47, was first charged in June by Connecticut’s Capitol Police with inciting injury after he urged residents to “take up arms” against two state legislators and an ethics official when the lawmakers introduced a bill to give lay members of Roman Catholic churches more control over their parishes’ finances.  Later that month, federal authorities filed charges in the Chicago case.

[…]

First Amendment scholar Martin H. Redish said much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse. “I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range,” said Redish, a professor at Northwestern University Law School. “I just don’t see him being protected.”

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.'”

Proclamations that people “deserve to be killed,” while loathsome, are unquestionably protected speech.  When someone has a large following and urges the audience to take criminal action, it gets dicier.  Going further and providing maps and advice for circumventing protective barriers may well cross the line.

A superb essay at FindLaw concludes:

Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard. For certain forms of expression for which protection is claimed, the Court engages in ”definitional balancing” to determine that those forms are outside the range of protection. 164 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. 165 Utilization of vagueness, overbreadth and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, 166 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that ”mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success. 167 In Brandenburg, however, the Court reformulated these and other rulings to mean ”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.” 168 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.

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.

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James Joyner
About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Command and Staff College, Marine Corps University, and a nonresident senior fellow at the Brent Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. sam says:

    This will probably (I hope) get pretty well aired over at Volokh.com, but I was struck by this:

    [1] “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.”

    [2] 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.”

    [1] is, as pointed out, pretty much protected speech. But [2] appears to me to be akin to the “overt act” necessary to establish a conspiracy. Note, I say “akin to” (somewhat analogous to) in that it provides information material to carrying out the killing of the judges endorsed (and it is endorsed) in [1]. But it will be interesting to see how the legal minds thrash this out.




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  2. yetanotherjohn says:

    My gut says that he took a step to far. But given that the provision of the map and photos seems to be the agreed trip wire, that also bothers me. I suspect that google/yahoo/etc would have gladly furnished maps/photos of the Chicago courthouse. This is public information. Does their furnishing these make them a part of a conspiracy? Should providing publicly available information be the trip wire between free speech and prohibited speech?




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  3. Herb says:

    Could the judges file civil suit against Turner? They could claim mental distress and the cost of protection. That might be a deterrent against similar threats.




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  4. Mr. Prosser says:

    What he said is loathsome. Let’s carry it further, what if a blogger or commenter dealing with the financial meltdown says the president of an investment bank deserves to have his mansion in the Hamptons burnt down, and it happens. Is the commenter part of a conspiracy or is he/she liable?




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  5. PD Shaw says:

    I think Sam has the right of it, here. Seems like a close one to me, but an additional factor here is the nature of the target. When White Supremacist Matt Hale solicited the murder of the Chicago judge that had ruled against him in a trademark dispute, he was charged with the solicitation, but also with “obstruction of justice” in attempting to influence her and the judicial process “corruptly and by force.”




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  6. PD Shaw says:

    OTOH, a Chicago Judge just dismissed an obstruction of justice charge against racist Bill White, who posted the name, home address, phone numbers and other personal information of a “Gay, Jewish, anti-racist” juror on the panel that convicted Hale.




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  7. yetanotherjohn says:

    What if he didn’t provide the photos/maps, but provided a link to google/yahoo for the photos/maps? What if he said “you can google the judges and get a map/photo”? If the providing of publicly available information is going to be the trip wire, then how far do you have to go? Does the fact that a reasonable person would know they could look on google/yahoo to get this information mean that the first statement alone is enough because the second statement would be known by a reasonable person?




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  8. G.A.Phillips says:

    Could the judges file civil suit against Turner? They could claim mental distress and the cost of protection. That might be a deterrent against similar threats.

    This is a good idea.

    Maybe we can do something like this for the people who tell others “these baby humans aren’t really baby humans, they deserve to be Death paneled planned”.




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  9. […] James Joyner: 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.’” […]




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  10. Stan says:

    Read this

    http://tinyurl.com/axddl

    and see if you still think this is a free speech issue. Judges in the Chicago area undoubtedly remember the case. Turner is in for a jail term, and he deserves it.




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  11. Our Paul says:

    Nice post James, it ought to keep your correspondents gray matter churning on this fine Sunday. A bit too much on the libertarian side of the Constitution for my taste, but hey mon, we have discussed the question of civility versus protected speech before.

    I doubt the Founding Fathers would have considered “protected speech” the right to incite in the public square the murder of specific federal officials for exercising their constitutional duties and then give information pertinent to how it can be done. yetanotherjohn (August 16, 2009 | 08:30 am) brings up a valid point, the easily availability of the Court House information. Yet, under federal indictment are alleged terrorist who are being tried precisely the same acts. Surely Patrick Fitzgerald, the prosecuting Federal Attorney is aware of this. Perhaps he has read our new God of Truth, Wikipedia, to wit:

    The U.S. Supreme Court reversed Brandenburg’s conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The unanimous majority opinion was per curiam (issued from the Court as an institution rather than as authored and signed by an individual justice). The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and would have included a modified version of the clear and present danger test. In finalizing the draft, Justice Brennan eliminated all references to it, substituting instead the “imminent lawless action” language.[1] Justices Black and Douglas concurred separately.

    Of course Wiki has more background information, including the fact that Brandenburg was a white supremacist, and his “protected speech”, given at night while wearing a white hooded robe, with burning torches, was about you know what. Today, if such an event took place, it would be about you know whom…

    Those of us who live in terror of the bête noire of the liberal press can take heart in the continued drift of WaPo to the truth and light of the Center Right (rhyme not intended). The paper quotes extensively Martin H. Redish (Northwestern University Law), a conservative constitutional scholar, in defense of Hal Turner. Although the Southern Poverty Law Center’s quarterly publication had a recent insightful report titled The Return of the Militias the most we got out of the WaPo was this:

    Mark Potok, an editor at the Southern Poverty Law Center who tracks extremists and hate speech, says he thinks “political speech has gotten rougher in the last six months.

    Somehow the WaPo failed to reference the report, but then, it is not a pleasant read for those slurping the pabulum that disruptive dissent is a valid democratic exercise.

    Like correspondent sam (August 16, 2009 | 07:53 am) I occasionally dip into the Volokh Conspiracy (aptly named, I may add). It is a legal den of iniquities where originalist, strict constructionist, and others of their ilk gather to worship the bleached bones of the Constitution. There, for all to see during the ’08 election cycle was the fore-runner of today’s birthers as the gathered luminaries debated whether Obama was truly a Professor of Law at the University of Chicago.

    My preferences lie in Balkinization, a legal blog that is bit more eclectic, and certainly not as dogmatic. By a strange coincidence today’s discussion was on two bills in Congress attempting to limit hate crimes.

    Perhaps a couple of snips from the Southern Poverty Law Center are in order:

    Militia rhetoric is being heard widely once more, often from a second generation of ideologues, and conspiracy theories are being energetically revived or invented anew. “Paper terrorism” — the use of property liens, bogus legal documents and “citizens’ grand juries” to attack enemies and, sometimes, reap illegal fortunes — is again proliferating, to the point where the government has set up special efforts to rein in so-called “tax defiers” and to track threats against judges. What’s more, Patriot fears about the government are being amplified by a loud new group of ostensibly mainstream media commentators and politicians.

    ….

    Most of these recent murders and plots seem to have been at least partially prompted by Obama’s election. One man “very upset” with the election of America’s first black president was building a radioactive “dirty bomb”; another, a Marine, was planning to assassinate Obama, as were two racist skinheads in Tennessee; still another angry at the election and said to be interested in joining a militia killed two sheriff’s deputies in Florida. A man in Pittsburgh who feared Jews and gun confiscations murdered three police officers. Near Boston, a white man angered by the alleged “genocide” of his race shot to death two African immigrants and intended to murder as many Jews as possible. An 88-year-old neo-Nazi killed a guard at the Holocaust Museum in Washington, D.C. And an abortion physician in Kansas was murdered by a man steeped in the ideology of the “sovereign citizens” movement.

    Assuredly this is only the beginning. It is not enough to shine a spot light on individuals such as Hal Turner, one has to recognize the danger he and those of his ilk pose, and not dance around the nuances of the law as the WaPo did.

    Said it before, but I will say it again. No Democracy can survive if public forums are prevented to function by disruptive behavior or if speech that incites violence is tolerated. Assuredly democracy is in danger when prominent political figures misconstrue legislation and talk of death panels and euthanasia. A spot light should be shined on them, for lies by public officials is an intolerant affront to democracy. If nothing else, history has taught us that…




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  12. […] James Joyner (who also agrees “providing maps and advice for circumventing protective barriers may well […]




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  13. floyd says:

    The pen being mightier than the sword, I’m guessing the present administration clearly sees each of us as being either too gullible or too dangerous to be free.




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  14. legion says:

    I haven’t read the full discussion at volokh, but my gut reaction is to disagree with their conclusion on point [1]. A regular private citizen saying the like in, say, a bar or some other public place would certainly be protected. But Turner is himself a public figure, and his blog posts are clearly adjuncts to his radio program – he wasn’t just “mouthing off”, he was addressing his audience. IANAL, but that smells like it falls into a different category of speech.

    Either way, I do agree with Herb that a civil suit would be another way to handle this, but I’m also surprised by the number of right-wingers who also think this use of lawsuits is a good idea… why is this ok to people who normally rail against our ‘broken’ tort system?




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  15. […] Hal Turner and the Limits of Free Speech (outsidethebeltway.com) […]




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