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

[OlongapoEd]

"Freedom of Speech" is a national piety, an altar before which all "good Americans" must genuflect lest they be branded enemies of freedom or (gasp!) "un-american". There can be *no legitimate doubt* that Turner was agitating for the murder of the judges. None whatsoever. and yet, good widdle wibewals will insist on looking for ways to excuse him. You can always tell the good widdle wibewals. They are the ones who act as though they would rather die than seriously inconvenience a right-winger. The lives of the intended victims of those on the right are as nothing compared to the noble principle of untrammeled "freedom of expression". Those on the right are *clearly* more equal than anyone else in this intellectually and morally corrupt American society.

[bgfsh]

The media - especially the now nearly fanatical conservative media - makes regular references to who "does not deserve to live". Primary news outlets like Fox News make this regular business since so much of their programming is opinion or opinion saturated "news". They've made it accepted - and it should not be. There are far too many mindless followers that just happen to live and drive around with guns. They really are paranoid about such things. For some, its a not so big leap to doing something with them. . . .

[onrecess]

We can clear this dillema up in one second! While doing so, we will end hate speech! Here is the simple solution:
Start a web site/ go on tv/radio. Say that W, Cheney, the 5 Supremes who appointed W , Beck, BillO and Rush are all traitors who should die. List their addresses and schedules. Use the same exact language anti-abortion nuts and right wing talk loonies use.
Suddenly, instead of abortion doctors being targets, the right wing elite will be. Should take about a day for them to demand this terrorism be illegal. Compliant Dems, afraid-as always- to be called "soft on terror" , will immediatly change the law.
Problem solved!

[apduncan1]

Second the motion.

[kathy001]

Not really. That's what the author is saying when he says, "...bad cases make bad law". Just because the screaming Republicans might be able to push a new law through under those circumstances does not mean that it would be a good law. So, instead of having no grounds for consequences, we have consequences that are too harsh and, probably, grounds that are too flimsy, and we have a law that restricts our freedom of speech.

[OlongapoEd]

As a practical matter, no right of action based on belief can be absolute. You don't need to be a Constitutional lawyer to understand that, you just need to have common sense.

[jugganaut]

Remember how up in arms some conservatives were when Bill Maher stated that it wouldn't be a shame if a mortar round had taken out VP Cheney when he visited Iraq?

But now there are far more death wishes being publicly aired against the left than there ever were against Bush et al, and yet we hear not a peep of protest from the right.

Typical.

[mrskorn]

Can you list a source for all these death wishes that have been aired against the left? I think you might be exaggerati­ng...but if not I would like to be aware of these threats. thanks.

[bolivare]

If you can post a comment, then you can do your own research. Try Google first, and then go from there and let your imagination take you where you will.

[RenoSage]

Let me remind you that when the Bill of Rights was written and adopted, the illustration of a shout in
a theater was the ultimate reach of the verbage. There was no radio, no TV, no internet, none of the
sources that enter almost every home today. There is no limit of the affect that the "shout" can have.
So we have to wait for an actual murder of a public figure before we realize that words have consequences? I was fearful during the recent campaign that crowds would be incited to violence, instead of actual shouts of "Kill him."
The consequences need to be clarified, and reaction modified, and death threats prevented.

[dsws]

Of course words have consequences. Otherwise it wouldn't be so important to protect them.

[Margaretpoa]

Okay, I'm not a first ammendment lawyer or a lawyer of any kind but I recognize flacking for Hal Turner when I see it. People are charged and convicted of making terrorist threats for making much milder statements. Every. Single. Day. Because they can't afford representation, they mostly cop a plea. We have two "justice" systems in this country: One for well known, well heeled and well connected people and one for everybody else. Let's keep in kind that these are the same people who went into apoplectic hyperventilation when moveon.org changed a letter in General Patreaus' name. Let us not forget thaqt these were the people who screamed bloody murder because a department of homeland security report warned of right wing violence, (right before right wing violence happened). The guy that shot up a church in Tennessee admitted that he had a list from Jonah Goldberg but since he couldn't kill any of those, he proudly and gladly killed an innocent man whom he didn't even know. Just because we have a first ammendment protecting speech and assembly doesn't mean that people can neglect responsibilty when they speak. I agree that it's a thorny problem but Hal Turner hates and refuses to accept responsibility for the results of that hate.

[BlackJAC]

The problem is that after eight years of Dubya, nobody knows what's real and what's impotent balderdash anymore. For me, though, obtaining the weaponry suggests premeditation and kicks it out of the First Amendment-protected realm of simply venting one's frustrations.

[AustinDave]

I believe that the old saw is "hard cases make bad law" not "hard cases make bad law".

[AustinDave]

Excuse me! I meant not "bad cases make bad law."

[onepotatotwopotato]

The key wording is that Mr. Justice Holmes wrote, "and causing a panic." In other words there must be a harmful result flowing from the verbal act of incitement. In this case no harmful result took case, so it is a case of "no bill."

Holmes wrote:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater

[LeftRight]

I agree with you that it's both unlikely that he would be convicted, and good that he wouldn't be.

I would like to add, however, that him providing contact information on the people he was saying should die steps over the bounds. Not into attempted murder, perhaps, but something like conspiracy­....

[AustinDave]

But conspiracy needs an agreement to commit a crime and an overt act by one of the conspirators in furtherance of the agreement. I would posit that you can't conspire on a radio broadcast unless it's a call-in show! You can't conspire by giving a speech.

[LeftRight]

While I understand your point, and can see that under existing case law it might be right, I can also see a valid concern in limiting First Amendment rights when providing such information. That would be the only possible thing that might change this from a slam dunk against the government to a possible win for them.

[Tyler-Durden]

i don't understand why this article makes it seem like there is no protection from threats against one's life. Many states have laws criminalizing TERRORISTIC THREATS.

these judges can file a complaint with their state's DA office; just as anyone else who feels imminent danger for their lives, based on someone's threat to kill them.

[WFTomba]

Agreed. Making death threats is a crime in and of itself. There's no need to reach for the attempted murder argument.

And if the punishment for threats isn't harsh enough, the legislature can change it.

[iblogleft]

I believe public airwaves are crowded theaters. Just because you are not standing face to face does not remove responsibility.

There is a common sense difference between saying "they should be hung" and "these people should pay for what they did with their lives, here are their addresses.­..".

[Laserbeam]

I'm in complete agreement. What about Operation Rescue calling for the murder of Dr. Tiller? Shouldn't they be prosecuted, too?

Something I find very disturbing is that the violent threats always seem to come from the Right, and I can't name a serial killer off-hand that was a Democrat. I know Ted Bundy was a good Republican. Any thought on this out there? Am I being unfair? Whqat are others' experience?

[WFTomba]

Eh, there have been a lot of serial killers, and most people haven't heard of most of them. I'd expect the majority of them to be rather apolitical, since ideals and values aren't very important to a psychopath.

[kathy001]

Well, I'm not really sure that true serial killers, in general, have really strong political leanings. I think their killing is motivated by other things.

I do notice that all the incitements to violence that we are hearing these days are coming from the extreme right wing, but I think that there's also the possibility for those threats from extremists on the left. I don't think it's a right or left thing, I think it's an extremist thing.

[skippypicasso]

It makes much more sense wait to prosecute someone for threats and inciting specific violence against specific people until after the murders occur.

[lgillooly]

In my opinion the biggest obstacle for us to Unite as a Country is the hateful,corrosive commentary from talk radio. 91 percent of stations in the US calls themselves "conservative". There are no rules as to what they say as far as TRUTH. Spin,propaganda and hatred towards anyone that disagrees is the norm. Every day millions listen to them attack over half of the country and yet they call themselves Patriots? Listen to Rush,Hannity,Savage Beck etc for a week and you will beieve that Democrats hate this Country,Obama is evil and a liar etc etc
Do they not realize that they are attacking over 50percent of Americans every day and their words are dangerous? Do they care? Is it just about party?
Bush left huge messes for Obama to somehow fix. The economy took years of greed,deregulation and self interest to get where it is. Obama has been President for 5 months and everything is his fault now......H­e has 2 Wars to deal with and 1 was illegal with no real consequences for the previous Administration. Why? because the right owns the media. 5 companies own 95 percent. Until this is dealt with nothing will change. Why else do you think the right flipped out about a possibility of reinstating the Fairness Doctrine. They know the power of controlling the message. (see Goebells)

[Tyler-Durden]

co-sign

[Laserbeam]

In short, no, I don't believe they care. Only thing they appear to care about is money and remaining bigoted.

Very well-written post - thank you!

[BlackJAC]

AM talk radio merely exists to pander to the self-esteem of disenfranchised losers. You should hear the idiots that call into sports talk radio.

[WFTomba]

Cheer up! Some people are predicting talk radio will be dead in five years. :)

[kathy001]

I agree. Well said.

[forty8r]

I think blatently inciting people to commit acts of violance vioates the first amendent and is a terrorist. Wheather your a Black Panther wanting to stick it to the man or a KKK wanting to hang an uppity Black person both need to be convicted.

[LeftRight]

I would disagree with you on your general point. I don't think that Mr. Turner saying "They should die" should be illegal, but by him providing their addresses he crossed the line.

[Json]

Don't you think it is in the public interest to stop him from saying that people should be killed?
We can't make jokes about killing the pres. We can't make bomb jokes at the airport. But he can say that people should die and then provide their addresses? If that doesn't qualify as "incitement to violence", then those words no longer have meaning.