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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A little hyperbolic I would say......
I have yet to hear of a single Republican who stood up to say that such hate speech is just plain wrong and does not represent decent humans, let alone serious Republicans.
I don't need the Supreme Court to tell me what is clearly wrong and totally unacceptable.
But it would be nice to hear just one nationally-prominent Republican take a stand for decency.
Just one.
Is that asking too much?
It shouldn't be, but as a practical matter it is.
This guy was arrested by federal cops?!? Wow. One thing I think is wierd about the gun nuts: The U.S. Supreme Court just gave them practically everything they wanted, and yet they seem to be more rabid than ever. But that's another story.
Constitutional principles are rarely invoked in easy cases. It's the hard ones that test their legitimacy. Without knowing more, I would think Brandenburg applies (as does Debs) here. The only difference in the speakers contemplated by the Court 40 years ago and men like Turner are the size of their respective audiences.
This reminds me of the Anarchist's Cookbook. Except recipes for bombs is not quite so "imminent" as giving out people's addresses. I can see a judge construing "imminent" in that way. At first blush, it doesn't seem that denying his 1st Amend. claims would have any "chilling" effect on anyone other than nutcases "similarly situated" to this one and his adoring audience.
On the other hand, the author is right; this is a "bad facts make bad law" case. At the end of the day, maybe, as the late Mr. Justice Black used to say, "no law means no law".
Difficult, yes. But not impossible. The problem arises is when you take the timeline into account. We've had a rash of murders lately that seem to have their roots from various stations. Can't say that I know that these "people" watch or listen to these shows, but logic says they probably do because that side happens to be feeding into this fear mindset.
So, given that recent history, its becoming clear that there is a correlation to this and the actual deed.
Tough case, but I think the current mood of the country warrants this type of precaution. People need to understand that the country is not going to explode and there will be some policies they don't like. But politics is always a pendulum. Bank on dems gumming up enough to lose elections in the future because we do have the right to vote in this country and you get this privilege every 4 years.
So take a chill pill and relax. We are not going to rurn this into some "socialist" country, and if you have actually paid attention, we are no where near what a "socialist" nation is. We still have corporate masters who are calling the shots, just that a few rights will be given to people you may not like, but you don't know most of them anyways and have nothing to do with them in the first place.
Now breathe again and relax and enjoy the ride.
This is a tricky case, as Mr. Garbus points out so well. However, I think there is a difference between the KKK being granted a permit to march even though their views are vile, and a radio personality's use of public airwaves to incite murder, and this is clearly incitement, whether the threat is "imminent" or not. If it weren't for the specifics of addresses, etc. and the fact that the man was heavily armed, I would say it's not an imminent threat. (And the fact that a gun is owned legally does not mean it is not going to be used to commit a crime. Everything Timothy McVay owned was legal, also.) But this seems to me to fall under a domestic terrorism threat. One could easily argue he was planning a murder. At what point do we determine something is a "conspiracy"? How far along does the planning have to be? In this case, I do not think we are talking simply about someone's desire to kill or wish that someone were dead. It has many of the hallmarks of a plan and therefore to me he should be arrested and convicted. The amount of jail time, however, would be a wholly different matter.
Actually, in this particular case, I would say that his guns and ammo aren't an issue. The fact that he actually said that the judges should be killed and then made it easier for a potential killer to reach the targets is where they might get him.
The laws concerning threatening, require that the means to carry out the threat be at hand when the threat is made. So the fact that the guy had the guns when he made the threat, makes a big difference, to a court of law... though you're right, it seems to have little to do with the thornier business, of posting the intended victims' addresses.
I could not disagree more with the weak reasoning exhibited in this article. It presupposes that the status quo interpretation of the First Amendment is good law and social policy. It's the same sort of presumption gun advocates make when rejecting even reasonable gun restrictions. It also seems to assume that any limitation on free speech will lead to potential limitations on all speech -- the "slippery slope" or "sky is falling" assertion. The U.S. is not the acme of legal reasoning. Other countries manage to restrict hate speech and maintain a perfectly acceptable level of freedom, no matter what right wingers would have you believe.
Hollowpoint "bullets," meaning ammunition, are not ordinarily illegal as such. This is not intended to support anything that Turner said about the appellate judges, at least one of whom, incidentally, was a GOP appointee.
Counselor Garbus is correct that Turner's statements, wherein he seemed to suggest killing the judges, is on the line between protected speech and terroristic threats.
So many people in the USA regularly do so much to propagate the poisonous notion that you can be born in the USA of parents and grandparents and before who were born in the USA, and yet if you are not Ideologically sound, if you do not genuflect before the altar of the mighty god "Free Speech", if you seek to hold those on the right to meaningful standards, then you are not an "American". Such people are a part of the reason why I long ago decided that it was better to try be a decent human being than to try be a "good American".
The right to meaningful standards?
>>Joe the Plumber recently said Senator Dodd of Connecticut should be hanged.
is that what he said? Other bloggers said he wanted Chris Dodd 'lynched'
words
"lynch: To execute without due process of law, especially to hang, as by a mob." Lynch is worse than hang -- one can hang a picture or hang a left turn or hang onto a hope. Lynch is very very specific.
He said he was surprised that he hadn't been lynched.
And it's still wrong.
Of course it is wrong, but JTP is accorded special rights.
Why is it wrong? Who says so? If you will support such an idea, you should have a background to argue your point. The First Amendment does not protect the speech with which you agree! It's there to protect the speech with which you do not agree!!
Semper fi
All I know for sure is that, as much as I detest Bush & Co, I would NEVER feel right saying what this guy said in a public forum such as the one he used. Why would you give specifics that can only be intended to allow someone to find the "target" if you were just "blowing off steam" or whatever he claims?
It doesn't "feel" right to me. Not that I haven't enjoyed a private fantasy or two....
I'm not convinced that "imminent" should be the standard. Suppose someone plants a bomb, to be detonated by some delayed mechanism when a particular person is within range several months later. The person's death is not imminent when the actions take place, yet it's clearly murder if it succeeds and attempted murder if it fails. Whether the effects of an action are imminent may sometimes be a good proxy for whether they really and foreseeably are effects. But it's not necessary for the effects to make the action a crime.
Imminent doesn't relate to the connection between the action and the result, it has to do with whether or not a person speaking imminently motivates the violence.
If Rick Perry whips up the crowd by mentioning succession, it's not like those people can go straight home and succeed.
But if you post someones home address and villify that person excessively to your followers, it's possible that they can stand up from the internet, still in the thrall of that message, with the home address at hand and go kill that particular person.
It's not clear to me that saying "people like so and so" should die, without including that address, because I don't think that's "imminent." The listener has to go find such a person and take significant steps in their own thinking before they really turn that sentiment into harm of some kind.
Imminent means "threatening to occur immediately; near at hand; impending" (Webster 1913). Under the "imminent" test, speech is protected unless the actions it incites are to happen right away.
Of course, that's a dictionary: legal meanings can differ. "Imminent" is paraphrased here
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=341&invol=494
as "close at hand". From the same page, "The fires which [the language] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." And, "no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion."
Chip away at the first amendment and you are setting us up for "big brother"
entrapment cases, invasions of privacy, ugh
lets just let the words of a few kooks go.
Turner said, and I paraphrase but only slightly ' these people need to die, and here's where to find them.' That his listeners connect such close together dots is on him. He may not have 'actually' meant it, but to say he can't have concluded that it might encourage a listener to take up that challenge and kill a judge? If this was his first offense, perhaps. But it wasn't. Turner's been through this before. He's well aware of the danger the wrong words can have, and he's exploiting that line and the fears of restricting free speech. While limiting speech is dangerous, permitting calls for murder, which he did, is also dangerous.
limiting free speech because of his words however, is the most dangerous of all.
As long as he is made aware that he will be responsible for his words, he can talk all he wants. Free speech does not mean a person has no responsibility for what is said. it just means the responsibility must match the results. Libel is a good example of this.
You're missing my point. My point is that there's a balance. 'Kill him' is obviously a problem, and 'I wish he'd drop dead' is clearly not a problem, but 'the world would be better if the guy at 123 Elm St died' is tougher. I'm saying that we need to find a responsible balance between exhortations to murder another and defense of free speech. Too much protection of Speech as free creates a protection for extortionists - "Hey, all I said was ' If you don't pay me, bad things could happen - for all I know, something bad could happen anyways. I was JUST talking." And yet we do prohibit extortionist speech. Incitements to kill are even more clear-cut.
I am not a lawyer, but couldn't there be civil liability for people like Limbaugh, Hannity and Savage who seek to do nothing other than villify liberals. That is what they do, demonize liberals. Never do they discuss a social issue facing America and the only political point they make is no taxes. Their shows have very little redeeming value and if you have ever talked to a faithful listener of them, you will find angry person with whom it is virtually impossible to engage in dialogue.
Unfortunately, too many people in this world are incredibly susceptible to the powers of persuasion and will follow through on these suggestions as if a voice from above is guiding them. We clearly need to err on the side of caution and assume that suggestions of bodily harm broadcast to vast audience via any media is equivalent to advertising for a hit man, which would lead to prosecution even if the inciter didn't pull the trigger.
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