>> Sunday, August 16, 2009
When you state that someone deserves to die and that their death would replenish the tree of liberty as well as assure the freedom of millions, is your speech protected? That is the central question in the case of right wing radical and white supremacist associate hal turner. Turner's blog entry of June 2 and his subsequent arrest set off a rather large wave of discussion across the Internet. Turner isnt an unknown fringer blogging but a prominent right wing radio host. His speech is often shocking and because of his history and the nature of his speech he provides an interesting case for the boundaries of free speech.
Turners exact conduct
"Let me be the first to say this plainly: These Judges deserve to be killed," Turner wrote on his blog on June 2, according to the FBI. "Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."
The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of "anti-truck bomb barriers."
On his blog, Turner cited another 7th Circuit ruling against white supremacist Matthew Hale, who once called for Lefkow's assassination. Turner also mentioned the Lefkow murders, although they were unrelated to the Hale case.
"Apparently, the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed," Turner wrote. "These judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die."
The current test to determine when speech crosses the line from protected speech to unprotected speech comes from brandenburg v ohio. From Brandenburg v. Ohio
"... the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
So turners potential protection rides on three factors.
1) Is what he wrote considered advocacy?
2) Was the lawless action imminent?
3) Was the production of the action from the speech likely?
The first step is deciding whether Turner was actually advocating for the deaths of the three federal judges. Based on his statements that the judges deserve to be killed it is still plausible to categorize the speech as opinion and not advocacy. There is a gap between suggesting that were something to occur it would be ok or even good and actually directing someone to do it. It is a thin line -- but a line. If all he had said was that, Turner might have a decent chance. His problem is that he went a little further.
In addition to positively speaking about their deaths turner provided pictures of the judges, directions to the courthouse, and locations of security measures. These actions in association with his words make it very hard to say that he didn't intend for something to happen to them. Those actions provide some context that indicates his words were more than opinion. The references to a previous assassination also make his statements look less like opinion and more like a call to action. My feeling is that will find that he was advocating not spouting opinion.
The second part of the test is the temporal element. Was turner advocating for the imminent assassinations of the judges. If we take the OSHA version we define imminent danger as immediate serious risk of death or serious physical harm. I think it is safe to say that if he was advocating for their assassination he was asking for it to happen soon before they could make more adverse rulings or otherwise rule against his perceived definition of liberty. Turner certainly wanted it to happen before they ruled to take his guns away. he seemed to portray that this would happen soon. I am satisfied that he was not advocating for this to happen at some undefined date far into the future.
The final piece of the puzzle is the likelihood that the actions turner was advocating could come to pass. It's hard to say whether the violence turner advocated was truly likely. There have not been any reports of someone acting based on turner's words but actual danger isnt the standard. How long do you have to wait before something can be considered likely? Till the bomber buys the material? Till the bomb is made? For myself im satisfied that in the current political climate with the assassination of George Tiller and the shootings in Stanton Heights and the Lefcow killings the nature of the threat turner was inciting could be classified as likely. The issue may eventually make it to the Court simply to provide guidance on this term.
I agree with First Amendment scholar Martin H. Redish quoted in the WaPo that
"...much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse.
"I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range," said Redish, a professor at Northwestern University Law School. "I just don't see him being protected."
Turner's speech should not ultimately be protected. Not explicitly mentioned in the WaPo article is the undercurrent that the judiciary is not likely to be lenient on calls for their deaths. I dont believe that a court is going to need a particularly strong likelihood that a fellow judge is going to be assassinated before they criminalize the speech. Maybe they shouldnt take the fact that the potential targets are fellow judges into account but i think they will. If it comes down to it they might even try and fit this into the "fighting words" doctrine. Turner is going to be going to prison for his blog entry. I think he exceeded the bounds of protected political speech.