A divided federal appeals court Friday upheld the conviction of a blogger for threatening three judges on the U.S. Court of Appeals for the Seventh Circuit.

Two Second Circuit judges said the evidence at trial was sufficient to prove that Harold Turner committed a "true threat" of violence when he issued a blog post saying that Seventh Circuit Judges Frank Easterbrook, William Bauer and Richard Posner deserved to die when they upheld a Chicago gun ban, finding the Second Amendment does not apply to the states.

Second Circuit Judge Debra Ann Livingston (See Profile) and Eastern District Judge Brian Cogan (See Profile), sitting by designation, said the evidence at Turner's trial in Brooklyn federal court was "more than sufficient" to meet each of the elements for threatening a federal judge under 18 U.S.C. §115(a)(1)(B) and that "Turner's conduct was unprotected by the First Amendment."

Judge Rosemary Pooler (See Profile) dissented in United States v. Turner, 11-196-cr, saying "as a matter of law" Turner's speech was not a "true threat" under the statute and the First Amendment.

Turner began running the Hal Turner Show on a website in 2000 that was popular with groups such as the Klu Klux Klan and Aryan Nations. Between 2003 and 2007, he also helped the FBI by providing information on extremists who visited his web site and proposed acts of violence. The FBI dropped him in 2007 after he was admonished for his own violent speech on the website and his agent handler came to believe there were "serious control problems" with Turner, according to the circuit's opinion.

Turner published a blog post on June 2, 2009 following the Seventh Circuit 's decision in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009).

"Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to assure freedom for millions," he wrote.

Turner then referred to the murders of U.S. District Judge Joan Lefkow's husband and mother in the judge's Chicago home in 2005, connecting it to Lefkow's role in a case involving white supremacist Mathew Hale and his organization "World Church of the Creator."

Lefkow had ruled against Hale in a 2002 trademark infringement case, finding that his church infringed on a trademark belonging to another group. In 2003, Hale was arrested for plotting to kill Lefkow. In 2005, Hale was convicted of soliciting Lefkow's murder, and he was sentenced to 40 years in prison.

On June 3, 2009, Turner posted photos of the three Seventh Circuit judges, the room numbers of their chambers at the Everett McKinley Dirksen U.S. Courthouse, photos of the courthouse and a map that indicated the location of "Anti-truck bomb barriers."

When he was indicted in July 2009, the case was assigned to Judge Donald Walter of the Western District of Louisiana, who was sitting by designation in the Northern District of Illinois. It was then transferred on Turner's motion to the Eastern District of New York, where, after two mistrials, a third trial was held in August 2010.

Testifying at trial were FBI agents, an inspector with the U.S. Marshals Service and Judges Easterbrook, Bauer and Posner.

Turner also testified, asserting that he had merely been engaged in political hyperbole and claiming that the FBI, for whom he once informed, had advised him that his June 2 and June 3 blog posts were constitutionally protected—a contention FBI agents testified was false.

Walter instructed the jury they could convict only if they found Turner "acted with the intent to impede, intimidate, or interfere with the United States judges while engaged in the performance of their official duties, or with the intent to retaliate against the United States judges on account of the performance of their official duties."

Walter also told the jury the "First Amendment protects vehement, scathing and offensive criticism" of judges and "political hyperbole." Nonetheless, he said, "a threat as I have defined the term" is not shielded by the First Amendment.

It took the jury two hours to return a verdict of guilty and Turner was sentenced to 33 months in prison.

'True Threat'

Writing for the majority, Livingston said the evidence showed that "Turner's statements were not 'political hyperbole,' as he contended, but violent threats against the judges' lives."

In his blog post, Livingston said, "Turner not only wrote that these three judges should be killed, but also explained how Judge Lefkow had ruled against Matt Hale and how, '[s]hortly thereafter, a gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently the 7th Circuit court didn't get the hint after those killings. It appears another lesson is needed.'"

Livingston said, "Such serious references to actual acts of violence carried out in apparent retribution for a judge's decision would clearly allow a reasonable juror to conclude Turner's statements were a true threat."

Turner had claimed he used "the passive voice"—an argument rejected by the circuit, as Livingston said he "did not merely advocate law violation or express an abstract desire for the deaths" of the three judges, but published their photos and directions on how to find them.

Pooler, in her dissent, said "I would hold that Turner's communications were advocacy for the use of force and not a threat."

"It is clear that Turner wished for the deaths of Judges Easterbrook, Posner, and Bauer," she said. "But I read his statements, made in the passive voice, as an exhortation toward 'free men willing to walk up to them and kill them' and not as a warning of planned violence directed towards the intended victims."

"Although vituperative, there is no doubt that this was public political discourse," she said. "His speech might be subject to a different interpretation if, for example, the statements were sent to the Judges in a letter or an email."

Assistant U.S. Attorney William Ridgway of the Northern District of Illinois argued for the government.

Turner, who made some submissions pro se, was represented by Richard Dolan of Schlam Stone & Dolan.

Dolan said that he is considering a possible petition for rehearing en banc, faulting the majority for not addressing the law on incitement, which Pooler covered in her dissent.

"There are not a lot of Supreme Court cases on it, but there are a number in the circuit courts and its pretty clear that this sets up a split in the circuits. It's also going to be difficult to reconcile the majority opinion with prior opinions of the Second Circuit."