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Trial Over Death Threats Against Federal Judges Could Test Free Speech Rules OnlineMedia lawyers say case may carve out new precedent to cover the Internet free-for-all of invective
"These Judges deserve to be killed," declared Harold "Hal" Turner on his Web site in June, attacking three 7th Circuit judges who had upheld Chicago-area bans on handguns. On Dec. 1, Turner is due to go to trial in a federal case that will turn on whether his Web postings are protected as an exercise of free speech or constitute a "true threat" that posed imminent danger to the targets. Also part of the mix: Turner's claim that he learned how to stay within the legal bounds of provocative speech as an FBI informant.
The National Law Journal2009-11-24 12:00:00 AM
"These Judges deserve to be killed," declared Harold "Hal" Turner on his Web site on June 2. He was attacking three federal judges who earlier that day had upheld Chicago-area bans on handguns.
By the end of the month, Turner was in handcuffs. On Dec. 1, he's scheduled to go to trial in Brooklyn, N.Y., in a federal case that will test First Amendment protections online.
The case will turn on whether Turner's June 2 and other postings on his Turner Radio Network site are protected as an exercise of free speech, albeit violently hyperbolic, or constitute a "true threat" that posed imminent danger to the targets. In the mix will be Turner's contention that he learned how to stay within the legal bounds of provocative speech as an FBI informant.
The case doesn't fall neatly into case law, media lawyers say, and may carve out new precedent to cover the Internet free-for-all of invective. "What we're beginning to see with this case is that there are boundaries on free speech on the Internet," said Bruce Sanford, a media law attorney at Baker Hostetler in Washington, D.C. "This case will begin to define those rules."
On the day the 7th U.S. Circuit Court of Appeals upheld the gun bans in National Rifle Association v. Chicago, Turner went online to accuse the three 7th Circuit judges -- Frank Easterbrook, Richard Posner and William Bauer -- of being "traitors." He wrote, "Their blood will replenish the tree of liberty." The next day, he posted the judges' names, photos, phone numbers and work addresses. He provided a photo and a map of the Dirksen Federal Building in Chicago, where the court is located, with arrows pointing to "anti-truck bomb barriers." He added, "Behold these devils."
Turner was arrested on June 24 at his New Jersey home and sent to Chicago, where he was charged by the U.S. Attorney's Office. He has since been released from jail pending trial. His lawyer is seeking to postpone the trial until March.
A case in which judges are the alleged victims raises inevitable concerns about judicial bias. Turner's case was first handed to an out-of-town judge, Donald Walter of the U.S. District Court for the Western District of Louisiana, and then transferred to the U.S. District Court for the Eastern District of New York.
Turner contends the prosecution is a violation of his First Amendment rights. In a letter to The National Law Journal dated Sept. 1, before Walter placed restrictions on his contact with the media, Turner contended, "I am the first editor of a U.S. media outlet to be jailed for an opinion since the Civil War!"
As far as the government is concerned, the case doesn't have anything to do with the First Amendment. In the one-page indictment, Assistant U.S. Attorneys William Hogan and William Ridgeway, who stayed on the case when it was transferred from Chicago, accuse Turner of "threaten[ing] to assault and murder three United States judges with intent to impede, intimidate and interfere with such judges while engaged in the performance of official duties." Prosecutors declined further comment.
They have persuaded Walter of their point of view to one extent. On Oct. 5, the judge denied dismissal of the case, determining that Turner's rant met the legal definition of a "true threat" not protected by the First Amendment. Still, Walter emphasized the limits of his ruling by underlining and bolding the phrase "as a matter of law."
That leaves open the possibility he will allow the jury to consider the First Amendment defense as a matter of the facts, said Turner's lawyer, Michael Orozco of Bailey & Orozco in Newark, N.J. It's up to the jury to decide whether Turner "threatened with intent," Walter wrote. Turner did not, according to his lawyer. "He's a radio shock-jock," Orozco said. "He only said it as a form of criticism and nothing else."
Media law experts see an argument there, with some reservations. Turner could make a strong case that he was engaging in protected "rhetorical hyperbole," said professor Jane Kirtley, who heads the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. The problem, she said, is that he listed "specific identifying information." Floyd Abrams, a media lawyer at New York-based Cahill Gordon & Reindel, agrees that Turner could argue his words shouldn't be taken literally, but also concluded in an e-mail that Turner's alleged conduct seems to fall "firmly within the category of a 'true threat.'"
In his Sept. 1 letter, Turner put his own, more colorful spin on the rhetoric argument: He said that convicting him for his statements would be like "jailing actor Al Pacino for being 'the Godfather.'"
Lawyers said the most relevant prior decision is the 9th Circuit's 2002 ruling in Planned Parenthood v. American Coalition of Life Activists. In the case, an en banc panel decided that posting online photos of doctors who performed abortions and crossing off their names after they were killed constituted a "true threat." Given the reality of repeated deadly assaults on doctors, the 9th Circuit wrote, that conduct "is not protected speech."
In his Oct. 5 ruling, Walter referenced the recent murders of judges and judges' relatives to show that Turner's threats could have been perceived as real. Orozco said that the threshold for proving a true threat in the 2nd Circuit, where his case will be tried, is different than in the 9th Circuit. In the 9th Circuit, the speaker must specifically intend that his threat be understood as such, while in the 2nd Circuit the test requires only that it be "reasonably" understood as a threat.
Two facts that may help Turner are the continued good health of the judges he allegedly threatened and the lack of suggestion that he would kill them himself. Unless someone has acted on his exhortations, Kirtley said, it's hard to argue violence was imminent. Moreover, she said, the threshold for proving that a defendant incited others to commit violence is higher for comments in the press and on the Internet than for in-person communications.
Jack Weiss, a media lawyer and chancellor of Louisiana State University Paul M. Hebert Law Center, said the U.S. Supreme Court's 2003 decision in Virginia v. Black suggests the speaker must express his own intent to carry out the unlawful violent act to constitute a true threat.
Among other facts the jury will have to consider will be Turner's argument that he was following FBI guidelines as to what speech is permissible online. "I was a highly-trained intelligence operative for the FBI Joint Terrorism Task Force (JTTF) from 2002 through 2007," he wrote in the Sept. 1 letter. "FBI JTTF ... taught me how to 'come right to the line' with violent rhetoric, 'without breaking the law.'"
Orozco this month informed the court that he would offer a "public authority" defense, saying his client believed he acted under the auspices of the government.
Prosecutors acknowledged in an Oct. 17 filing that Turner was a paid FBI informant who attended extremist group meetings and provided information to the bureau. But they argued that his former ties to the FBI constitute no defense, noting that the informant relationship ended a year and a half before the blog posts.
Still, Sanford said, the fact that Turner worked for the FBI is "going to muddy the waters."