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.