Murder Threats and the First Amendment

A very important First Amendment case, one that may soon reach the Supreme Court, is beginning its legal path.

Here's how it started. On June 2, 2009, Hal Turner, a radio talk show host considered by civil rights organizations to be a white supremacist, wrote on his blog that three named Federal Appeals Court judges, who upheld a handgun ban, deserved to die. The addresses, phone numbers, and work place locations were given to the reader. "These judges deserve to die. . . ." "Observe the Constitution or die," he wrote. He never said he would kill the judges and never attempted to. When arrested, he had a shotgun, 3 handguns and 150 hollow point bullets. He claimed to have a permit for the guns, but the bullets are illegal. He was brought to court in an orange jumpsuit, handcuffs and shackles. Bail was set at $200,000 -- he is in a Newark jail.
He had previously been arrested for threatening lawmakers involved in a decision relating to the Catholic Church. He has a long history of attempted incitement, but so far as I know, no one has been incited by him.

Twenty-two days later, even though apparently no attempt was made to damage the lives of the three judges by Turner or anyone else, Turner was arrested. He will undoubtedly assert a First Amendment claim when he appears in court next Thursday.
The federal government's criminal complaint states that the charges will range from death threats to attempted assault to attempted murder.

The case has two separate elements. First, the arrest of Turner on the basis that he might kill the judges. Secondly, the arrest of Turner because he might incite others to kill. I believe his arrest and conviction on either ground is not justified.
Under existing First Amendment law, he is probably protected. Should he be? Do we have to wait until a murder attempt actually gets underway? Does existing First Amendment law have to be changed, and does there have to be a law that more particularly deals with "true threats"?

There are an increasing number of threats that emanate from right-wing radio, television hosts and bloggers, now presenting important First Amendment issues anew. Whichever case goes to the United States Supreme Court will undoubtedly create new law.

Nothing has happened to the three judges, although we cannot assume something will not happen. For me, this is a very troublesome and difficult case.

If we imagine that instead of Mr. Turner, a Vietnam or Iraq war protester says on television, or radio or his blog, that the president deserves to die. He says, "The blood of the president must flow, and his failure to protect democracy requires that he die." It would be protected. If he says it before an armed mob standing outside the White House ready to rush the guards, it would not be protected.

Present First Amendment law arises mostly out of cases dealing with the threats of mob violence. In Brandenburg v. Ohio, a case decided in June 1969, exactly 40 years ago, where there was a Ku Klux Klan mob armed with shotguns, rifles and ammunition, the Court stated the test is whether the speech to the mob was incitement to imminent lawless action.

The prohibition against falsely "Shouting Fire" in a crowded theatre is the ordinary person's understanding of what First Amendment law tests are. It is the popular way of describing the test that the danger must be imminent. Shouting Fire is the title of an HBO film that is presently airing (full disclosure: my daughter, Liz Garbus, directs it, and I am in it) and specifically deals with some of these issues. It dramatically shows the possibility of theatergoers being trampled after "Shouting Fire" is cried and why the speaker can be punished. The danger is clearly imminent.
But Mr. Turner's case is different, and as the years go by, threats of all kinds will become more common in all media. They seem today to come from the Right. Joe the Plumber recently said Senator Dodd of Connecticut should be hanged.

The Internet both permits it and encourages the maker of the "true threat" for it now permits wilder language than the regular media and it can reach significantly more people. And the threat of course gets further exposure when the news media reports an arrest.

In the Hal Turner case, you have a specific threat aimed at a specific person giving specific information on how to find that person. In effect, so, too, did Joe the Plumber. It is true that once one's name is given, the Internet Googler can probably have gotten the names and addresses of those being threatened (maybe not as easy with judges) but Turner's placing it there makes it easier for a potential killer who is encouraged by having this extra information and endorsement.

But Mr. Turner (and Joe the Plumber) are part of the political dialogue of the country. Turner is not a private person saying that another private person should be killed, where the test must be different. We presume Mr. Turner has a constituency that may or may not act on his threats. It is also true that the potential killer may ask if it's so important for the judge to die, why didn't Mr. Turner do it or try and arrange it. It may be true that even before Mr. Turner posted the information, a number of other people may have had the same thoughts. But Mr. Turner's language may push some people over the edge.

Some scholars are seeking to create a new test for cases such as Mr. Turner's. They are trying to create a new way of approaching the particularized true threat law. They might conclude that it requires both a subjective and objective test. The threat would need to be very fact specific. Did he specifically intend that the person be killed, did he have reasonable belief that it would lead to a killing, and was his belief reasonable that the person would be killed? Mr. Turner might fail that test. I reject this approach. I reject any test that minimizes the concept of "imminent" as a necessity in order to avoid the First Amendment.

I find it a very troubling and difficult case.

A legal truism is that bad cases make bad law. The exact test of what is and what is not a true threat will certainly be developed more carefully in the next few years. Nonetheless, I believe even if the facts alleged against Turner are true, the First Amendment should be available as a defense.

Martin Garbus is a First Amendment lawyer.

 

Comments

[WinfieldJAbbe]

Captain Eric H. May has posted an interesting article on this subject at http://www.ednews.org/articles/hal-turner-vs-chicago-fbi.html.
He begins with this quotation attributed to John F. Kennedy which I have not checked: "Those who make peaceful revolution impossible make violent revolution inevitable."
He begins the article by listing about four individuals and institutions who have made similar statements but no charges have been filed and none of them have been imprisoned without bail for over a week, and treated like a common criminal as Mr. Turner has been.
As far as I know, he is also a former member of the United States Marine Corps and took and oath to protect and defend the United States Constitution. This is a lifetime oath and cannot be revoked. He also placed his life on the line to protect the rights of all other citizens under the Constitution as well. The 14th Amendment is also part of the U.S. Constitution and in fact it was invoked by the U.S. Supreme Court to basically "elect" former president Bush. Mr. Turner also deserves to have his case treated equally and fairly under the law. Did not Mr. Bush utter many things with which we all disagreed too? In fact, did not he even lie to us about the war in Iraq? And by the way, Mr. Bush was certainly not "elected" by a majority of the registered voters of the United States was he?

[raaf]

Hal Turner (a friend of Sean Hannity) has been inciting racial hatred, advocating violence and threating people for ages and should have been locked up a long time ago.

"We may have to ASSASSINATE some of the people you elect on Nov. 7"

"I advocate parents using FORCE AND VIOLENCE against Superintendent Paul B. Ash"

and there's much worse than that. This has nothing to do with free speech.

[S1m0n]

Are you seriously trying to argue that the first amendment protects speech which issues a public call for another person's murder?

[atoonce]

Couldn't it be a lesser crime than on the level of murder or attempted murder? More like slander or personal damages. That way the target doesn't have to be murdered or even attacked for the person suggesting the attack to be proven guilty. Maybe a year in jail for saying someone should be shot, another year for giving their address, etc.

[caterpol]

I disagree with you. His specific language, and his very specific choice of information----names, addresses, phone numbers and MAPS of both home and office----easily qualifies as imminent danger.

What if these were police officers rather than judges? What is these were his ex-wives? What if it was you?

It seems to me that each of us deserves to feel safe in our jobs and homes, and that trumps Turner's "right" to free speech.

[GardenerNorCal]

End the war on Terrorism and go back to the constitution.

[vietveter]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Everything else is just "spin"

[RTIII]

Not quite.

The founders never intended to say all speech under all circumstances was protected. There's liable, and incitement.
.

[GardenerNorCal]

The fact is GW and Cheney declared war on terrorism and we allowed them to from a Department of Homeland security and passed the Patriot Act twice, FISA, and AETA. It was for your security, remember that. So if you wish to incite hate and murder be prepared to be arrested, especially if you give out personal details on the proposed target. Simple answer these people are classed as terrorists.

[blindhog]

I have a very uneasy gut feeling about what is happening in the United States and the song that goes "something's happening here, what it is isn't exactly clear" is how I'd describe it.

It's like enemies of the United States of America, like wolves at the door, are ready to take us down.

[GardenerNorCal]

I remember that song.

[kdogg]

Buffalo Springfield - for what it's worth

[CharlesofPortAngeles]

Fascinating read. Thanks, I’ve been wondering about these ‘threats’ for some time. I appreciate your point that the laws, as they stand, probably can’t be correctly applied to squelch, arrest or impinge on these first-amendments envelop-pushers, but maybe it’s time the Supremes took another look. Fact is, radicals on the left want to burn down your house while it’s under construction, while the Right wants to just blow your brains all over the pavement. Radicals, by their very nature, are incapable of civil discourse so they are locked into violent means of expression.
What will higher courts decide? Really depends on what is going on in society. With radicals shooting people they don’t like, egged-on by hate spewin’ Chicken-Littles, the courts may find that some hate speech constitutes conspiracy. It’s a slippery slope I’d rather not go down, but antisocial behavior on a large scale is anarchy and if it is allowed to blossom none of us will be safe.
I don’t know the answer, but I do welcome a reasoned debate and legal opinions.
novocaineforsissies.

[RTIII]

I PROFOUNDLY disagree. The problem is; When using mass media of any form, one simply cannot know how imminent actual harm may or may not be.

Media today has an immediacy that was simply not possible when our constitution was written.

I'm not EVER happy with someone inciting violence. For example, I believe Rush Limbaugh and some at Fox News are at least partially responsible for the death of....?? ...the Dr. who performed abortions whose life was cut short a few weeks ago... That man death was in part caused by people in the media inciting others to violence. This is _my_ view.

There are enough crazy people out there already. Addiing criminal ideas to their minds should also be criminal. As the scale of our society and the scale and immediacy of our media has increased exponentially since 1800, the statistical risk of someone acting on someone else's suggestion to do violence also increases in a non-linear fashion. We should not ignore this reality.

Please note that I am a VERY strong civil libertarian - I don't want to give up one tiny bit of my rights, nor do I want others to lose any, either. I also don't want to live in a world where people can incite violence and get away with mu.rd.er. Surely we can craft a way to ensure our freedoms and reduce risk of violent action resulting from speech which intentionally attempts to provoke it.
.

[Strywever]

You say, "Adding criminal ideas to [crazy people's] minds should also be criminal." By that logic, any television show that dramatizes any crime should be considered the product of criminal behavior, and the actors, producers, sponsors, and anyone else involved with creating the show should be prosecuted. That's ridiculous.

That said, your point about not knowing whether members of hate-speakers' audiences are poised to cause imminent harm is interesting, and obviously any responsible media representative would assume some are. However,the "not knowing" part likely is the effective excuse from a legal POV. Perhaps, considering that the far-reaching power and immediacy of today's media outlets could not have been foreseen by our Constitution's framers, our laws related to freedom of speech need to be reconsidered in some way.

[DenverJJ]

This is not a first amendment issue. Inciting others to do ill is one thing, providing the information or the mechanism to do it is another. It's not the same to say, "let's bomb Iran," because there is no real mechanism to do it.
DenverJJ

[JohnLease]

I'd want to know how long this guy continued broadcasting after this. I don't have a problem with the arrest either. If you want to think you are a tough guy and spout this kind of nonsense, there are going to be consequences. I hope he relishes his opportunity to mix and mingle with other people of differing ideologies and backgrounds. Should make him a more well rounded person.

[LewDan]

We tolerate a lot under the First Amendment on theory that ensuring freedom of political speech is worth the occasional abuses. But the point of the intimidation through publishing names and addresses is to stifle opposing political speech with or without violence. Giving it First Amendment protection is counterproductive and contrary to the intent of the First Amendment.

SCOTUS, like the rest of government, abhors accepting responsibility and making tough decisions. Still, its their only job, so they've made "process" sacrosanct to provide cover. Yes, its risky and messy to allow courts to determine if speech REALLY is "political" and protected or malicious, libelous, or inciteful--but that's their job. Extending First Amendment protection as far as possible so that courts DON'T have to decide is just as dangerous as having court reviews--and far more likely to be fatally so. In addition, as we so often see, it allows malicious attacks to be exercised with impunity.

We've gone too far. First Amendment abuses are now so common that we can no longer afford to ignore and tolerate them as outliers, THEY have become the biggest threat to our democracy and free speech, not their regulation. We need to start protecting the victims of incitement, slander, and libel instead of the perpetrators.

[kitkatborn]

Fanned and faved. I think you only have to look at the recent killings at the museum & of the doctor to see that something is neededto prevent people taking advantage of the First Amendment.

[Jeff Cunningham]

Not to mention the guy on Glenn Beck's show last week who said the only chance this country has of getting its act together was for bin Laden to attack us again -- a point with which Beck solemnly agreed ... then expressed disappointment that it would probably never happen.

And Mr. Bouncey-Bounce's rant on the radio the other day about how he wanted some of those people in Honduras to come up to the U.S. to "help us get our government back!"

How are these two men not being investigated by the FBI or the DoJ or somebody? I always thought this sort of speech was illegal, and yet these guys, from what I can tell, are not being investigated for potentially threatening and treasonous speech.

I'm all for letting people express their opinions, regardless of what they are, but at what point does that opinion become dangerous to the American people?

[tomasedison]

Does Bible Spice have an opinion on this now that she has all that free time ?

[LeftRight]

Of COURSE not, she can't be bothered to know all those judge-icial things going on dontcha know!?!?!?