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.
Gary Cohan: The Republican Summer Olympics of 2009
Republicans' private embraces are often in complete contradistinction with their own oft-trumpeted, Biblically-mandated "moral" guidelines for the rest of us.
RJ Eskow: Lone Wolves and Missing Bodies: Denying the Reality of Rightwing Terrorism
Why aren't we hearing from responsible voices on the Right who, while defending their colleagues' freedom of speech, deplore incitements to hatred or violence?
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I am not an attorney as some of you may be but I cherish our Constitution and our First Amendment Rights. Can law (or an interpretation of such) not just eminate from common sense? If an individual promotes violence or harm against another can it not just be considered unlawful? We can disagree with policy or action of an individual, but when they are threatened, are their rights not compromised?
"To secure these [inalienable] rights [to life, liberty, and the pursuit of happiness], governments are instituted among men, deriving their just powers from the consent of the governed..
The Founders could never have foreseen "the people" as they are today - armed to the teeth, legally, connected via the internet and constituting a virtual mob if ever there was one. "The purpose of government is to maintain a society which secures to every member the inherent and inalienable rights of man, and promotes the safety and happiness of its people. Protecting these rights from violation, therefore, is its primary obligation
When someone gives out a person's name and an address where that person can be located and says they should be killed, they are threatening their life, liberty and pursuit of happiness. Do we consent to be governed by those who will not protect our inalienable rights over and above the right of that person to speak those words?
Like most Americans (including some on the right), I hold the First Amendment to be sacred.
I'm not convinced, however, that this is really a first amendment issue. This, along with the "Fire!" in a crowded theater, almost certainly constitutes reckless endangerment. Who is to decide that? Why a jury of one's peers of course. Should harm come to people as a result of such endangerment, then an accesory charge can certainly be added.
Even such charges should not be made lightly, but a good litmus test would be to bring on deliberate, malicious, clear and present danger upon others.
To paraphrase Ed Koch, "One can be a liberal, and not be devoid of common scense!".
As someone who is both one of Turner's targets and a passionate believer in the First Amendment, I am also somewhat torn by the legal issues of this case. On a very personal level, I am deeply relieved to know that Turner is in jail. As anyone who has followed Turner knows, he makes a regular habit of telling his readers (who are a sizable number) whom he thinks deserves to be killed, often providing their home address along with his suggestion. What was more disconcerting than reading that suggestion about me was the number of readers who told him to consider it done.
On a more theoretical level, I realize that a conviction against him would set a very bad precedent. As a blogger since 2004, I am very aware of how an administration like the Bush administration might interpret such a ruling.
I'm hoping that, being the coward that Turner surely is, his time in jail plus the two serious criminal charges will frighten him into settling with the government for some kind of agreement that he'll stop his vicious, designed-t
I disagree with the author on one specific point: It most emphatically IS "inciting" whether one is physically standing in front of a mob or speaking to an audience on the radio.
Mr Garbus I understand and appreciate your explanation of the legal issues in the Hal Turner case, but how do you view the actions of Bill O'Reilly and the murder of Dr Tiller recently. As has been noted in these pages on earlier occasions, O'Reilly is recorded as having said 24 or 25 times that Dr Tiller should be killed, or deserved to die, or words to that effect. Given that nearly all clinics offering medical abortions in America, now have an almost permanent collection of right wing religious fundamentalists, with a minimal grasp on reality, gathering at their doors, how would O'Reilly's speech be "protected". If the test is whether or not there was an expectation that someone would act on his statements (or even to a lesser degree, that there was a recklessness in not considering whether or not someone would act on his statement) given the undeniable reality that there were people with ill-intentions gathered in the immediate vicinity of Dr Tiller when the threats were made, what legal responsibility does O'Reilly bear for his statements? I'd be interested to read your take on this.
“we have no government armed with power capable of contending with human passions unbridled by morality, and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our constitution as a whale goes through a net. Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”. John Adams
our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. John adams
to the distinguished character of patriot it should be our highest glory to laud the more distinguished character of Christian George Washington
in vain are schools, academies, and universities instituted, if loose principles and licentious habits are impressed upon children in their earliest years. The vices and examples of parents cannot be concealed from children. John adams
have you ever found in history one single example of a nation thoroughly corrupted that was afterwards restored to virtue? And without virtue there can be no political liberty…. Will you tell me how to prevent riches from becoming the effects of temperance and industry? Will you tell me how to prevent luxury from producing effeminacy, intoxication, extravagance, vice and folly? I believe no effort in favour of virtue is lost john adams
religion and virtue are the only foundations, not only of republicanism and of all free government, but of social felicity under all free governments and in all the combinations of human society john adams
All of these comments can be directly attributed to the fact that the fledgling United States had NO standing police force or judiciary and they were obviously appeals to every persons good instincts(the foundation of the best that is in the Bible) to act as civilized as possible.
i beg to differ and apparently you went to a public school.
the founders were exclusively christian, and franklin was one of the most secular christians in attendance. so the following were just passing fancies. no devout virtue!
"to the distinguished character of patriot it should be our highest glory to laud the more distinguished character of Christian" George Washington
1. our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other. John adams 1798
a patriot without religion in my estimation is as great a paradox as an honest man without the fear of God. It is impossible that he whom no moral obligations bind, can have any real good will towards men? Can he be a patriot who, by an openly vicious conduct, is undermining the very bonds of society? The scriptures tell us “righteousness exalteth a nation”. Abigail Adams
statesmen my dear sir, may plan and speculate for liberty, but it is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue, and if this cannot be inspired into our people in a greater measure, than they have it now, they may change their rulers and the forms of government, but they will not obtain a lasting liberty. John Adams 1776
learn the real history of america
1. hence bad examples to youth are rare in america, which must be comfortable consideration to parents. to this may be truly added, that serious religion, under its various denominati
information to those who would remove to america, Benjamin Franklin
“we have no government armed with power capable of contending with human passions unbridled by morality, and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our constitution as a whale goes through a net. Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”. John Adams 1798
2. “the hand of providence has been so conspicuous in this (the course of the war) that he must be worse than an infidel that lacks faith, and more wicked that has not gratitude to acknowledge his obligations (to give thanks to God). George Washington 1778
This is the sort of thing usually put out by the evangelicals to prove why they (and only they) should get to run the country.
Presumably so that they can use the power of the government to enforce their (and only their) brand of virtue on the rest of us.
...A nation thoroughly corrupted that was afterwards restored to virtue...?
Uh, let me try: Germany? Russia? Italy? Venezuela.
...this is too easy...
there is little virtue in europe and certainly not in the leadership in venezuela. when a society devalues life and removes the moral compass of christ we end up with a rise in murders, rapes, and theft. the parents who did not teach christian values to their children now wonder why they are so depressed and violent. why no one has any christian charity or respect for other people. to remove the foundation holding this country and by extension this world together is an act of utter foolishness based upon a selfish desire for vanity and self interest.
oh and let me clarify virtue for you non judgemental progressives.
virtue , a mind set where you are willing to stand up for what is right, even if it costs you.
like in golf what do you do when no one is looking.
what would you do if no one would find out.
lie? cheat? steal? walk by an injured man? turn your back to a widow? i find on this huff po little virtue as the progressive movement will behave as a rabid dog against any conservative. nice value system you have there.
"The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature: and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an æra in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the inspiration of heaven, any more than those at work upon ships or houses, or labouring in merchandize or agriculture: it will for ever be acknowledged that these governments were contrived merely by the use of reason and the senses."
- John Adams, Preface, Defence of the Constitutions of the United States, volume 1.
http://www
President Adams was wrong, as with artifice, imposture, hypocrisy, and superstition texasteph12570 and those of his creed are pretending just such, by quoting President Adams out of context.
But beware when arguing with this sect, for John Adam's himself warned "But touch a solemn truth in collision with a dogma of a sect, though capable of the clearest proof, and you will soon find you have disturbed a nest, and the hornets will swarm about your legs and hands, and fly into your face and eyes."
Mr. Garbus, your daughter's documentary about various free speech cases changed how I view the 1st Amendment and the 'fire' analogy. I am a proponent of the approach you believe is the lawful one. However, our country as a whole, needs a serious attitude adjustment for the 1st Amendment to survive the onslaught of threats of violence. It's seriously out of hand. How do we distinguish between the fact of a promise of violence and just obscene hot air? We can't. I share your concerns and am baffled how this trend can be reversed. We have to start somewhere, but it's like trying to understand black holes--unless you have the requisite education and inherent IQ, understanding will always be elusive. Where do we begin?
we saw what rogue terrorist can do when egged on........
What about giving out the addresses of AIG and bank executives when they were being threatened. Does this mean that the bloggers and news people who released the names can be charged?
I wish Mr. Garbus had addressed in more detail the constitutional difference between a "true threat" and another type of threat, with the first being illegal, the second being free speech.
In the two cases that set current precedent, Watts v. United States and NAACP v. Claiborne Hardware Co, both threats were expressed in future tense and conditional upon some future circumstance, as opposed to being expressed in present tense after something has already happened.
In Watts, the defendant had said that if he was ever drafted and issued government weapons, the first person he would shoot would be the president. So therefor it was not a "true threat", he had not been drafted.
In NAACP, the defendant had said that if any supporters turned coat, their own people would break their necks. Again, this was not a "true threat".
What Mr. Turner expressed was ""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 pay to assure freedom for millions." It is not in the future tense, and it is not conditional upon some future circumstance.
I wish Mr. Garbus had addressed this, because I disagree with him; the current precedents do not support his argument, and that this is not speech protected by the US First Amedment, and I don't think the courts will rule it is.
It is domestic terrorism, he should be sent to Gitmo.
I'm an ardent First Amendment supporter, but there is no legitimate purpose served in allowing addresses to be posted in conjunction with such rants. The implication is clear.
The Brandenburg "clear and present danger" test was designed long before the internet.
There should be a clear connection between a threat and an act when making these kinds of pronouncements in an actual speech, because words are temporary. When names and addresses hang out there permanently in a multimedia format with clips of speeches that can be played over and over, provocative photos and written speeches, all looked at and read repetatively by followers, the standard needs to be adjusted, plain and simple.
Regardless of your arguements, threatening a Federal judge is a crime with a long long sentence. the judges don't have to be harmed or killed, just threatened. The illegal firearms will add a mandatory 15 years to the sentence. Good riddance to bad rubbish
The issue of the ammunition will be thrown out! Hollow-point ammunition is NOT illegal in New Jersy. http://www
That issue is thrown into the mix to stir the pot of hatred and ignorance only. Drop it!
Semper fi
The problem is a pot of hatred and ignorance against Turner? incredible!
No, the problem is the hatred and ignorance of the issue. It is merely highlighted by the propensity to use minor falsehoods to exacerbate it.
Semper fi
That law says that hollow point bullets are OK under certain circumstances. If that feminine hygiene product did not meet those conditions, he should have the book thrown at him.
I figured that at least one good little American nationalist (a category which most definitely includes many avowed liberals) would not like my failure to genuflect at the altar of "Freedom of Speech". Too bad. I have noted before that given the choice between pleasant fantasy and unpleasant reality, most Americans would choose the pleasant fantasy. Just because the USA is not the worst place in the world does not mean it is the best. I have spent some time overseas, and I know something about the world, so don't for a moment think I can be intimidated by lame attempt at emotional blackmail.
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