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The Case of Hal Turner: A Blog Post About Violence Tests the First Amendment
By JULIE HILDEN

Monday, July 27, 2009

Earlier this month, the prominent First Amendment attorney Martin Garbus wrote an interesting editorial for The Huffington Post regarding a case that is likely to test the bounds of the First Amendment. Despite his strong pro-First Amendment beliefs, Garbus notes that for him, this is "a very troublesome and difficult case." I agree.

The reason the case troubles me – and likely the reason it troubles Garbus as well – is that it raises the question whether someone in our society has impunity when he uses words on the Internet that put particular, named people in serious peril of losing their lives.

The case began when criminal charges were filed against Hal Turner, a radio talk show host. The charges are based on the fact that on his blog, Turner named three federal appeals judges who had together upheld a handgun ban; opined that each judge "deserve[d] to die"; and provided the judges' addresses, their phone numbers, and the locations of their workplaces. On his blog, Turner also wrote of (and perhaps to) the judges, "Observe the Constitution or die." When arrested, Turner possessed four guns and 150 illegal hollow-point bullets.

Garbus admits that Turner's language "may push some people over the edge" someday, and refers to Turner's "long history of attempted incitement" – a history that includes other blog posts suggesting other individuals should be killed – but also to the fact that it seems that no person has actually been incited to violence by Turner's words.

Garbus notes that Turner is now facing charges ranging "from death threats to attempted assault to attempted murder." He opines that a First Amendment defense should be available to Turner, but does not opine as to whether, on the facts, Turner will be able to establish that defense. (To give an opinion on that point would likely be premature, since other evidence – such as Turner's private writings, or testimony about comments he may have made to others, or at rallies, or on talk radio -- may be relevant to drawing the line between speech and planned action.)

Garbus also expresses concern that cases like this one will lead to changes in the law that will weaken the traditional requirement, imposed by the Supreme Court that a speaker, to fall beyond the protection of the First Amendment, must be inciting "imminent" lawless action – not lawless action that may occur sometime further off in the future.

In this column, I'll consider why defendants like Turner may fall through gaps in the law, and whether that result is an inevitable cost of our enjoying First Amendment freedoms.

I'll focus upon the threat charge, as Garbus has, rather than on the attempt charges -- for the attempt charges cannot be proven unless Turner took a "substantial step" toward actually killing or more one of the judges. If there were evidence that Turner bought the hollow-point bullets with this objective in mind, for example, that would certainly suffice. But Turner's comments alone could not, consistent with the First Amendment, be a "substantial step." The question on which I will focus, then, is whether his comments can be prosecuted as threats – not the role they will play in the attempt charges against him.

A Clear Parallel to the "Nuremberg Files" Case

This case is strongly reminiscent of the "Nuremberg Files" case, about which Sherry Colb wrote a prior column for this site. There, the American Coalition of Life Activists created a website that gave the names and addresses of abortion providers and supporters, along with their photos. When a person on the list was killed, his or her entry was crossed out; if he or she was wounded, the entry was grayed out. But the attacks were accomplished by third parties, not the Coalition, and without the Coalition's aid.

Some of the doctors on the list sued the website's authors, and obtained a $107 million jury verdict. However, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed the award on First Amendment grounds. The panel refused to allow political speech to be punished simply because it "makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party."

The Turner case is somewhat parallel to the Nuremberg Files case because Turner's comments, too, surely make it at least somewhat more likely that the three judges he named, and whose information he provided, will someday come to harm.

Moreover, Turner's blog – like the Nuremberg Files site – included information that would make it easier for readers to personally confront the people listed on the site, either to attempt to change their minds through peaceful protest, or to attempt to harm or kill them.

But in some sense, Turner went further than the Nuremberg Files site, too. His comment that the judges "deserve[d] to die" says implicitly what the Nuremberg Files site only implied – but implied very strongly, as Colb pointed out in her column.

In addition, there is an element here that was totally missing in the Nuremberg Files case: a particular statement that could itself be characterized as a threat. Turner's comment "Observe the Constitution or die" closely resembles a classic threat such as a robber's "Your money or your life." And since, in Turner's view, the judges had already failed to observe the Constitution (in particular, the Second Amendment) when they issued the decision he disliked, the meaning of his words become even more ominous than the hypothetical robber's.

Surely, too, if Turner had made that same comment directly, in person, to one of the three judges, his words would have been seen as a prosecutable threat. Yet, in contrast, imagine if the Nuremberg Files authors had held up a poster of their online list, with its names of deceased abortion providers crossed out, in front of abortion doctors who were walking into their clinics; they still likely would have been held by the Ninth Circuit panel to be protected by the First Amendment. For this reason, too, Turner's speech seems more threatlike than that of the Nuremberg files.

Thus, it seems likely that the Turner case will raise even closer and more difficult First Amendment questions than the Nuremberg Files case did.

Threat Law, Attempt Law, and the Imminence Requirement

In some ways, this case can be seen as among the many examples of instances where old legal doctrines fit very poorly when applied to the Internet. Often, I think it's useful not only to contrast pre-Internet with post-Internet circumstances in such cases, but also to envision what legal rules we might devise if we were writing the law anew, taking into account post-Internet realities. Obviously, the Constitution may limit our ability to put the results of that exercise into place, but I think it's still a valuable thought-experiment.

As my law school First Amendment professor Owen Fiss often emphasized, the classic First Amendment doctrine was modeled on the streetcorner speaker in the public square, or the activist stirring up a crowd at a rally. The doctrine is still much the same. But the setting is worlds away from the way we live now.

Fiss pointed out that these examples were outdated even in the age of television, when the paradigm began to focus on CBS, not the streetcorner speaker. They are even more outdated now, in the age of the Internet, where there is no selecting funnel to screen out certain speakers. That editing funnel was pernicious in many ways; for instance, it was notably elitist. And overall, I think it's good that the funnel is partly gone, thanks to the much more democratic Internet. But First Amendment doctrine was built, in part, on the existence of a funnel – as opposed to today's Internet free-for-all.

While that selective funnel was in place, extremists could only reach a relatively limited and often local audience. As a result, given evidence of plotting, conspiracy, or planned attempts at violence within an organization, undercover police officers could personally monitor or infiltrate the organization. That reality imposed serious First Amendment costs for legitimate protest organizations, especially during the Civil Rights Movement, but it also had benefits when it came to would-be offenders, organizations, and groups of persons whose real purpose was violence, not speech -- such as the Klan.

In that earlier context, the "imminent lawless action" requirement Garbus is worried about protecting made sense: If speakers were not actually convening a mob and sparking it to imminent violence, then their crowd would eventually dissipate. Moreover, undercover law enforcement might have seen who attended, and could then monitor their doings. In some sense, the authorities could afford not to arrest speakers, since they could have some reasonable sense as to who the speakers' listeners might be, and what those listeners might do. They did not just have to wait to see if someone was killed.

In contrast, on the Internet, it is virtually impossible to track the identity of anyone's readers, let alone assess the readers' capacity for violence or track whether readers may take steps to make that capacity a reality. Put another way, in the Internet age, there often may be no suspected conspirators – only completed crimes, sometimes with a crime being done by a stranger who has never seen or met the speaker who urged it. That leaves us in the helpless position of having to wait until someone is, in fact, killed – if we do not punish the speech that may well incite violence, and thus deter similar speech.

If we were writing the law (and Constitution) for the first time now, with the Internet in mind, it seems quite unlikely that we would use an "imminence" requirement in criminal statutes relating to speech, since much of the material on the Internet is long-lived, yet still pernicious. Messages can be read years after they are written and there is no record as to who has read them – a reality that is both wonderful and terrible.

It is wonderful in that it can give rise to valuable and truthful speech, and it is terrible in that it can give rise to speech that urges – and perhaps eventually accomplishes -- the perpetration of violence upon specific people.

Questioning the Imminence Requirement: The Need for a Reasoned Defense of It in the Internet Context

No wonder, then, that Garbus is worried about the possible demise of the imminence requirement: There will always need, in the law, to be some proven nexus between speech suggesting that violence should occur, and the actual violence itself, for the First Amendment to be preserved. But there are many possible nexuses here, and imminence is just one of them.

Other concepts from the law – foreseeability, particularity, reasonableness, and more – could be put into service, and Garbus's piece suggests that scholars have proposed doing just that, with a fresh "true threats" doctrine.

With the Internet showing that speech can linger forever, the argumentative burden may be on defenders such as Garbus to explain why imminence is so important. After all, when Internet speech does incite violence, a significant amount of time may have passed between one person's posting and someone else's action. Thus, imminence is a test that Internet speech, no matter how dangerous, may virtually always fail – which seems troubling.

Of course, legally, the formal burden will be on would-be legal innovators, who also need to explain why they think timeworn constitutional tests for the advocacy of violence should be junked. But with other concepts available that could also cabin speakers' liability and/or criminal responsibility, the defenders of imminence should explain what their choice of a cabining concept has, exactly, to recommend it – above and beyond simple tradition and precedent.
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Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.