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

[rjw918]

>>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.

Really? How do you know? Are they now wearing bullet proof vests regularly (as many abortion docs are said to do.)

Has the gov been forced to increase security?

>>I find it a very troubling and difficult case.

Indeed it is.

>>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.

Reasonable people may disagree..­...

[grooveygrover]

It says a lot about our society when human beings feel they have the right to pass such a judgement on another human being (that they deserve to be killed/murdered) and to feel justified in their judgement
very scary

[PCL07]

I totally agree. I also find it odd that the people who pass these kinds of judgements seem to be white.

Now, on the streets, this would be white on white crime...

[AndybHoboken]

There is no freedom in allowing speech to rile up someone to kill another human being because they don't agree with them. This is not the wild west subject to vigilante justice. The mob is no longer standing in a public square listening to a hate filled speech. It has evolved due to technology. Now hate mongers congregate in chat rooms and post on blogs all over the internet. One has only to look at the recent shooting in DC to see a perfect example of someone so filled with hatred and bile continuously fed the same from his like-minded websites, acting out with violence. The obvious paralell is how many times did this individual listen to Hal Turners radio show seeking confirmation of his own hatred.

[WFTomba]

The fact that he was carrying guns and ammo means nothing in this case. A wingnut like Turner probably carries guns and ammo everywhere he goes, just in case the black helicopters come for him while he's at the Waffle House.

I don't think a person should be convicted of attempted murder unless there's specific evidence that he had a plot in motion.

Making death threats is a crime in itself, but it is not the same thing as attempted murder. If you loudly declare to all in hearing that you hate your neighbor, and that "One of these days I'm gonna kill that [expletive]", that's a death threat. It shouldn't be considered constitutionally protected speech. But it's not attempted murder, even if you're carrying a gun.

The only thing Turner should be charged with is making threats, because that's all the evidence proves that he did.

[LeftRight]

And even then only because he provided addresses. As for the ammo, that's something that he should either serve jail time or pay a fine for!

[Laserbeam]

Turner has the venue of vast radio airwaves. He called for the judges to be killed and supplied their addresses to folks.

Maybe you think that's okay, but I don't.

[WFTomba]

I sure don't think it's okay! I just don't think it's attempted murder. That seems like a pretty easy concept, no?

[Subtext]

Please tell me how this differs from the radio announcer who was successfully prosecuted for inciting the crimes in Rwanda?

[wgsalter]

The first amendment does not apply in Rwanda.

[onepotatotwopotato]

For one thing the U.S.A. is not Rwanda!
We have the First Amendment, they don't.
We are governed by American law, not International law.
I am a citizen of the United States of America.
I am not a "Citizen of the World" and do not wish to be and never shall be.

[ReesieKitty]

I think the issue of whether or not the person making the threat has a documented constituency should definitely be taken into legal account. If I make a threat or say that some general person ought to commit a violent and illegal act against someone else for personal or political reasons, there is little chance of harm being done, as I provably have no 'constituency' or group of loyal followers who would take my words as truth or instruction. But these right wing radio hosts, tv talking heads and so on, PRIDE themselves on their devout following- both on the number of avid followers AND on the their devout nature of absolute belief in what their idol is saying. There is a MUCH greater likelihood that someone from such a group will act on their idol's words.