Hal Turner and the Limits of Free Speech
How far does the 1st Amendment go? Hal Turner is about to find out.
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.