In English law, it was once high treason merely to "compass or imagine" the death of the king or his heir, even without a specific threat of regicide. Over the last century, American courts have held that the First Amendment requires us to distinguish between imagining a thing and threatening to do that thing. Figurative references to the deaths of our opponents may not be punishable "true threats." Hence when eighteen-year-old anti-draft protestor Robert Watts said back in August 1966 "I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J," the Supreme Court held that his words could not be interpreted as a true threat against the President.
But where is the line between a rhetorical device and a threat? Can't people threaten indirectly, through images and figures of speech? When the local hood says to the grocer, "Nice store. Shame if something happened to it," is that not a threat?
That's the question the Second Circuit confronted in evaluating the conviction of white supremacist blogger and radio host Hal Turner. Last Friday a divided Second Circuit panel affirmed Turner's conviction for threatening federal judges who had issued a Second Amendment decision that make him angry. The case shows how difficult it can be to distinguish among political rhetoric, threats, and incitements.
Turner was upset with three Seventh Circuit judges who held that the Second Amendment's right to bear arms was not incorporated under the Fourteenth Amendment — that is, they held that the Second Amendment restricted only the federal government, not the states. The Supreme Court later disagreed, but not before Hal Turner called for the death of the Seventh Circuit judges who decided the case.
Though Turner did not threaten to kill Judges Frank Easterbrook, William Bauer, and Richard Posner himself, his call for their death was not at all coy:
All the years of peaceful legal challenges; all the years of peaceful appeals; all the years of peacefully and lawfully lobbying federal and state legislators, to achieve the penultimate goal of finally interpreting the meaning of the Second Amendment, only to have it all thrown in the trash by three Appellate Judges in a manner so sleazy and cunning as to deserve the ultimate response.
. . .
The government—and especially these three Judges—are cunning, ruthless, untrustworthy, disloyal, unpatriotic, deceitful scum. Their entire reason for existing is to accrue unto themselves, power over everything. The only thing that has ever stood in the way of their achieving ultimate power is the fact that We The People have guns. Now, that is very much in jeopardy. Government lies, cheats, manipulates, twists and outright disobeys the supreme law and founding documents of this land because they have not, in our lifetime, faced REAL free men willing to walk up to them and kill them for their defiance and disobedience.
Thomas Jefferson, one of our Founding Fathers, told us “The tree of liberty must be replenished from time to time with the blood of tyrants and patriots.” It is time to replenish the tree! Let me be the first to say this plainly: These Judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.
Turner went beyond this rhetoric to invoke the murder of the family of federal judge Joan Lefko, which at one point was attributed (incorrectly) to supporters of white supremacist Matthew Hale, who were infuriated that she had ruled against Hale in a trademark dispute:
Shortly thereafter, a gunman entered the home of that lower court Judge and slaughtered the Judge’s mother and husband. Apparently, the 7th U.S. Circuit court didn’t get the hint after those killings. It appears another lesson is needed. These Judges are traitors to the United States of America. They have intentionally violated the Constitution. They have now also intentionally ignored a major ruling by the US Supreme Court. If they are allowed to get away with this by surviving, other Judges will act the same way. These Judges deserve to made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.
Turner followed up with information about how to find, and kill, the judges:
The next day, Turner posted an “update” stating: “Judges official public work addresses and a map of the area are below. Their home addresses and maps will follow soon. Behold these devils . . . .” What followed were the names and photographs of United States Circuit Judges Frank Easterbrook, William Bauer, and Richard Posner; the room numbers for each of the judges’ chambers within the Everett McKinley Dirksen United States Courthouse; and a photograph and map of the courthouse’s location in Chicago. On the building’s photograph Turner drew red arrows and wrote, “Anti-truck bomb barriers,” to illustrate the location of these barriers around the building.
Turner was indicted for threatening to kill the judges with intent to intimidate them in the course of their duties in violation of Title 18, United States Code, Section 115. After two mistrials he was convicted. On appeal to the Second Circuit, Turner argued — among other things — that the evidence was insufficient to show that his statements were "true threats" rather than political rhetoric. Last Friday the court affirmed the conviction on a 2-1 vote.
I've written before about the "true threat" doctrine, which requires that the government prove that a defendant's words were (under some statutes) subjectively intended to be a threat, or (in other cases) reasonably interpreted as a threat rather than mere rhetoric. Here the court applied the objective test:
This Circuit’s test for whether conduct amounts to a true threat “is an objective one—namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury.”
However, the court also recognized that some cases seem to require a subjective test — that is, proof that the defendant intended for the statement to be interpreted as a threat. The court found either test satisfied by the evidence.
Here, the court found that Turner framed his political rhetoric with statements suggesting he had the power to have the judges killed.
Turner posted on his website that “Judge Lefkow made a ruling in court that I opined made her ‘worthy of death[,]’ [and] [a]fter I said that, someone went out and murdered her husband and mother inside the Judges Chicago house.” Given that Turner’s statements publicly implied a causal connection between Turner’s calls for judges’ deaths and actual murders, his statements about Judges Easterbrook, Bauer, and Posner, were quite reasonably interpreted by the jury as the serious expression of intent that these judges, too, come to harm.
The court also noted that Turner sent emails suggesting that he intended for his words to intimidate the judges:
The first email, which Turner sent to a Utah state court official after a judge’s ruling angered him, stated, “[M]aybe I ought to abuse my power and give out [the judge’s] home address. Having done such things in the past, I know this is an effective way to cause otherwise immune public servants to seriously rethink how they use the power lent to them by We The People.”
Two judges of the court rejected Turner's argument that careful examination of his exact words showed he uttered no direct threat, and disagreed with the dissenter's view that Turner had only incited, not threatened. Threats, the court held, can be implied or expressed rhetorically:
As we have said before, “rigid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render the statute powerless against the ingenuity of threateners who can instill in the victim’s mind as clear an apprehension of impending injury by an implied menace as by a literal threat.”
. . .
Here, Turner did not merely advocate law violation or express an abstract desire for the deaths of Judges Easterbrook, Bauer, and Posner. He posted photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse. Moreover, Turner’s intent to interfere with these judges—to intimidate them through threat of violence— could not have been more clearly stated in his pointed reference to their colleague, whose family members had been killed: “[A] gunman entered the home of that lower court Judge and slaughtered the Judge’s mother and husband. Apparently, the 7th U.S. Circuit court didn’t get the hint . . . .”
In dissent, Judge Pooler asserted that Turner's words could not be taken as a true threat because they called for other people to kill the judges, and because true threat law should apply primarily to direct threats of harm by the speaker. Pooler argued that Turner's actions should have been treated as an incitement to murder, and therefore evaluated under the Brandenburg standard by inquiring whether Turner's words posed a clear and present danger of imminent lawless action and were intended to create that danger.
Turner may seek review by the full Second Circuit, and given the importance of the First Amendment issue, the court may accept; that would lead to a fuller exposition of the contours of the true threat doctrine.
There's no question that free speech is seriously threatened if courts interpret true threats too broadly. There's no question that freedom of expression does, and ought to, include asserting the moral justification for the death of government officials that the speaker sees as tyrannical. However, I think the majority made the right call here. Turner's argument was that the evidence was insufficient to show he had made a true threat, and therefore the relevant question on appeal was whether any reasonable jury could have found the facts sufficient to show that a reasonable person would interpret his words as a threat. Turner's communications — particularly his bragging after the initial threat — strongly suggested that he intended his words to intimidate government officials, and that it was reasonable for government officials to take his words as threatening.
As the court said, the law does — and should — look beyond the literal interpretation of words to how they are understood. Everyone understands that "nice store you've got; it would be a shame if anything happened to it" is a threat. If I posted "if you spam me again, I will post your children's school address and their pictures to my violent and demented followers," people would understand it as a threat, even though I am not suggesting I will commit violence myself. If I say "the judge should consider, before ruling on my motion, that I have friends, and my friends have knives, and know where she lives," people would understand that to be a threat. True threats are outside of the protection of the First Amendment because they intimidate rather than persuade.
We should watch closely for any undue expansion of the true threats doctrine. But Turner's conviction doesn't seem to represent such an expansion.
Last 5 posts by Ken White
- Gawker, Money, Speech, And Justice - August 18th, 2016
- Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal - August 9th, 2016
- Why Openness About Mental Illness is Worth The Effort And Discomfort - August 9th, 2016
- A Rare Federal Indictment For Online Threats Against Game Industry - July 28th, 2016
- John Hinckley, Jr. and the Rule of Law - July 27th, 2016