Hal Turner and the Limits of Free Speech

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.

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The Next Justice

With the recent confirmation of Sonia Sotomayor President Obama managed to add two axis of diversity to the Court. So whats next? Given the temperament of both obama and justice sotomayor i dont envision obama nominating someone radically different in judicial philosophy or style. When you have nailed down the type of person that president obama is likely to nominate the next logical question is exactly what vessel the philosophy will come in. i think Obama should actually nominate another woman of color. My prediction is that he will nominate a white guy the second time around.

It would be a bold stroke to nominate another woman of color. Given the rather white and male history of the court adding more women to the mix sets an important precedent. Adding a woman should be common place, unremarkable. It can only get that way if presidents establish a pattern of nominating women often. Likewise nominating people of color, asian or black or latino or whatever it doesnt matter, is something that should be considered common. If President Obama doesnt start to establish the precedent i am not confident it will happen any time soon.

The reason i am skeptical about the nomination of another woman of color to the Court is that the reaction will be great at this point in time. I do believe their would be a rather large racial backlash from the right claiming that the black man is executing an affirmative action plan for minorities by nominating them to the court. This would likely be a big political headache for the president and i doubt obama cares enough about placing an actual woman or minority on the bench as long as he feels their interests are well represented by the person he does choose. Its a fight he doesnt have to engage in. Instead he can preserve all his energy for fights on his other big challenges like energy reform or immigration reform or health care reform if we are still dealing with that.

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They took our healthcare!

I havent written very much this summer mostly because i have been busy. Also im not a healthcare wonk and thats been the main conversation. The townhall disruptions do remind me of this.



The entire idea behind the townhall disruptions is to intimidate, bully, and oppress. When conservatives cant win on the merits of an intellectual argument they resort to violence and fear as the primary tool.

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Sotomayor and the Lack of A Liberal Philosophy

Its hard to blame Judge Sotomayor for not giving a long drawn out lecture on the nature of the American Appellate system to the Senators who asked her questions. She after all really wants to be on the Court. It is clear that at this point in time simply keeping your mouth shut and letting the Senators talk about themselves and their views is the easiest way to be confirmed.

You can search around the bloggosphere and see the disappointment in liberal circles that sotomayor failed to articulate any meaningful liberal view of the role of the judiciary in American Society. This is true. We didnt here about the constitution as an illustrative document of principles that are applied to current situations. Instead we heard plenty about restraint and open mindedness. We heard that the Court, contrary to everyone elses understanding, doesnt make policy.

The only time we might see an honest discussion about how the courts in this country operate is if we get someone up there in the hearings who doesnt care about being confirmed. Imagine someone simply going up there and telling it like it is. That the Court makes policy, edits and rewrites law.

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Sotomayor Comfirmation Hearing is Pretty Boring

Im trying hard to get worked up about the sotomayor confirmation hearing. I really am. Sadly though i just cant. Dont get me wrong im very excited to see a latina woman appointed to the court and even though id like to see more liberalism from her she isnt the worst choice ever. My problem is with this entire confirmation hearing process. Does it really serve any point? Are we learning a tremendous deal about Ms. Sotomayor? Are we learning a great deal about the Senators from the questions they ask? I have to say we arent. I mean, we all knew Sessions was a racist before the hearing and that Lyndsey Grahm didnt like Roe. The entire process is congressional theater write large. Right now everyone is playing their part and reciting their lines.

In today's media environment the second that Ms. Sotomayor became the frontrunner for the nomination she and her record were placed under a brutal media spotlight. Her 17 year history on the bench provides ample evidence for the type of justice she would make. If you really want to know how she thinks, her philosophy, whether she ignores law and precedent all you really had to do was to read her opinions.

The thing is, many people have. Ms. Sotomayor is not a mystery. She hasnt been plucked from obscurity with nothing written to examine. This makes me less interested in the hearing. We know by now who she is. She is an overall center left judge. She hasnt been willing to make bold leaps in the law or to use the law as a tool of social reform.

Another thing that makes this confirmation hearing boring to me is the fact that it takes place under a cloak of disingenuousness that affects every aspect of SCOTUS discussion. One aspect of the problem is that people act like understanding the law and making appellate rulings is easy and straightforward. its clearly not. Its hard and hyper-technical in most instances. The attempt to simplify the job and process of a Supreme distorts the discussion but most people cant follow hyper technical discussions of the law and that wouldnt look good for the politicians on tv to be over the head of their constituents.

The AP put out one of the strangest anti-Sotomayor pieces today that makes my point. It comes with the headline Columnist: Sotomayor is no Sandra Day O'Connor. In it the conservative espousing his views stated,

Q: How do you think the regular people, especially Republicans in red states are viewing the hearing?

A: I think most people get very confused in these proceedings because it gets so technical. I think they size up the person.

I'm sure most Republicans who look at her, would think she's not the best nominee. But what do they expect? Obama won. I would have liked him to pick another O'Connor. I don't see her at all being a Sandra Day O'Connor and going back and forth and helping the court find the center. Kennedy is the only justice who does that, and that's a shame. I'd like to see more justices who could help us find the center in a center-left era. I don't see Sotomayor being that person, but I may be wrong.

The era may be center left but the current Court sits far to the right. A judge who sides sometimes with Alito, Scalia, Roberts, and Thomas jusnt isnt likely to side often with the more liberal wing of the court. Its like asking obama to nominate a conservative to the Court.

The entire attitude of the hearings is wrong. its filled with "how would you rule in this case" type of questions. It really needs to focus on judicial philosophy. Thats a discussion that the American public could probably track and might find interesting. The problem is that Sotomayor simply avoids all of these real questions so that she isnt hurt politically. One excellent example cited by Jan Crawford Greenburg

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendments. It is a process -- an amendment process that is set forth in the document. It doesn't live other than to be timeless by the expression of what it said. What changes is society. What changes is what facts a judge may get.

That’s nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn’t be that difficult to knock it out of the park.

Obviously, Sotomayor can't answer questions about how she would rule on issues that might come before her, so it's a different point than sounding like Roberts on those answers. But it's her responses on theory, the sweeping questions of philosophy that are frustrating liberals like Seidman.

“One of the things she said that was striking yesterday was 'judges should never decide cases out of fear.’ But her testimony came out of fear,” Seidman told me this morning. “It doesn’t speak well of her.”

And with a decisive majority in the Senate, “it doesn’t take a lot of courage,” Seidman said. “It takes only a little.”

Exactly. Lack of courage on her part and a lack of spontanaiety on the Senators part and total predictability by the village adds up to make these hearings boring and rather useless.

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