Monday, July 27, 2009

ANOTHER VIEW

TO ORIGINAL SOURCE

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.

26 comments:

  1. 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.

    Totally laughable. How about the long life of books at the library? Lot of pernicious material lingering out there in old books.

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  2. If Counterpunch shills for Shilden's work this woman must be a leftist idealogue.

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  3. You guys need to not relax on the pro-white side. The more Obama fails, the more he'll look for ways to look good in the press (who will make him into a saint no matter how bad of a mess he makes).

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  4. 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

    horse-shit!

    the filthy, vile "counter-cultural revolution" inflicted ultra-violence on the White Race...innumerable acts or real, actual violence were perpertrated on white people by this "movement" & because of it....the Zebra killings, the abortion holocaust, faggotry, the Weather Under-ground &c &c.....

    here's where "the Constitution" stands now....trampled on by vrs licorice all-sorts of maggoty, ZOG-bot thugz!

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  5. Obama is president and he has yet to fail, bitches. You do continue to whine though. Same fag, whines all the time. Much Lutz and I laugh at your ignorant ass.

    OBAMA WINS OBAMA WINS OH YES WE CAN OBAMA WINS! YES YES YES YES OH MY GOD YES WE CAN!

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  6. It is nice to debate issues with some of the more intelligent libs here like Schwartz or Nikki but it is a shame that this blog has for the most part degraded to ignorant leftsists like this:

    """Obama is president and he has yet to fail, bitches. You do continue to whine though. Same fag, whines all the time. Much Lutz and I laugh at your ignorant ass.

    OBAMA WINS OBAMA WINS OH YES WE CAN OBAMA WINS! YES YES YES YES OH MY GOD YES WE CAN!"""

    I ask the question, why is it that the mentally handicapped are attracted to this web site? Are these those people who call themselves "nimbusters"?

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  7. Poor Hooch\Blevins take your fuckin' meds you whiny bitch. Go get a job you worthless fuck.

    But the great thang? Turner was denied bond again. I hope Hal's mommy and "friends" are sending him lots of K-Y. LOL.

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  8. Oh pardon me but they did not yet make a decision on Hal's bond. His trial date is set for Oct. 5, later today they will decide on his bond. Hopefully it will be denied or set so high that he can't afford it. LET THE ASS RAPING CONTINUE! YES WE CAN!

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  9. This goofy bitch is as dumb as a post.

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  10. STILL WAITING TO SEE YOUR LONG FORM BIRTH CERTIFICATE NIGGER!

    IF YOU GOT NOTHING TO HIDE THEN WHY ARE YOU HIDING IT?

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  11. You guys see that video of the black female cop saying she won't vote for Obama again because of his heavy handed tactics in the Gates controversy?

    It's on Drudge now.

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  12. If the GOP runs Sarah Palin, Obama will be reelected in a landslide of epic proportions.

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  13. It doesn't matter if the "Birthers" say, because the The Constitution is clear on this point:

    Article II, Section 1 states, "No person except a natural born citizen ... shall be eligible to the Office of President."

    What exactly is a Natural Born Citizen? One that is born to parents that are both American citizens.

    Obama's father was NOT an American citizen therefore Obama is NOT a Natural Born Citizen.

    He may be an American citizen but he is not a NATURAL BORN citizen as our Constitution requires.

    I suggest you get familiar with our laws and our beloved Constitution.

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  14. Fuck the birth certificate nonsense.

    How come none of these records are available to the public?

    Obama/Dunham marriage license: Not released (if one exists)
    Obama/Dunham divorce: Not released (discovered by independent investigators)
    Kindergarten records: Not released; School claims records are"LOST" Records lost (this is a big one -- see here -- read two frames)
    Soetoro/Dunham marriage license: Not released
    Soetoro adoption records: Not released
    Fransiskus Assisi School School application: Not released (discovered by independent investigators) Click here for proof/details.
    Punahou School records: Not released
    Soetoro/Dunham divorce: Not released (discovered by independent investigators) http://orlytaitzesq.com/drorlytaitzesq/documentation/SOETORODIVORCE.pdf
    Selective Service Registration: Not released (Obtained via Freedom of information act request; received FORGERY?)
    http://orlytaitzesq.com/drorlytaitzesq/documentation/SSSGov.doc
    Occidental College records: Not released
    Passport: Not released, records scrubbed by Obama's terrorism and intelligence adviser.
    Possible to have U.S. Passport without providing birth certificate, click here for more details.
    Columbia College records: Not released
    Columbia thesis; "Soviet Nuclear Disarmament"; Not released
    But an anti-war plan to disarm America article written by Obama was found;
    http://orlytaitzesq.com/drorlytaitzesq/documentation/obamaantimilitary.pdf
    Harvard College records: Not released
    Harvard Law Review articles: None
    Illinois Bar Records: Not released
    Illinois Driver's License Record: Not released (discovered by independent investigators) Click here for details.
    Baptism certificate: None
    Medical records: Not released
    Illinois State Senate records: None
    Illinois State Senate schedule: UH..., "LOST"
    Law practice client list -- Not released
    University of Chicago scholarly articles: None

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  15. One reason I see websites such as Hal Turners' and the like developing is that they give folks a chance to discuss issues and blow off some steam (which is vital for any free society) in ways which would otherwise cause one to become subject to social exclusion, job loss, physical assault, and (in Europe/Canada) criminal prosecution.

    …what you don’t like about people of color or what you peceive to be the culture of people of color?

    It is not a question of “color”. Race realists see race as being a matter of heredity/genetics. Who cares about skin color? Different peoples evolved in different ways over the eons, thus producing inherent differences in median group intelligence, aggressiveness, sexuality, and so forth and so on. One can also add in cultural factors which persist regardless of all attempts to homogenize peoples.

    Once we drop the ideological blinders, we can see this reality. Thus, Rhodesia under white minority rule was a prosperous and reasonably well ordered society, in spite of an endless insurgency. But as black rules Zimbabwe, it has despotism, economic collapse and more people killed by the black government than in the entire war. Same environment, same climate, same economic resources, but the difference is the race of the ruling class. (

    A critical issue is now race is being used by Western elites (like Mr. Gates and Obama) — call them these elites the “multicult” — to batter down patriotism, tradition and every other foundation for national self-preservation. This is done via the universities and media attacking white people and Western civilization; via corporate globalization; via mass illegal immigration; via the one-party political system we now have in America which offers no choices.

    There is also the criminalization of dissent against the prevailing multicult beliefs, and we are currently seeing that with prosecution of Bill White and Hal Turner and God knows who else. This takes the form of “hate speech” laws in Europe which put people in jail for daring to challenge the prevailing orthodoxy on race. This takes the form of multicult “sensitivity” indoctrination in the schools and workplaces. This takes the form of people (including Nobel winning scientists) being fired, blackballed, and physically assaulted on and off campuses for daring to challenge the current orthodoxy on race. And woe unto anyone who dares dissent!

    One can ask: why if the multicultists believe in “civil rights” and “diversity” they then shut down anyone who disagrees?

    Do you live in the USA or Europe? If so, would you not admit that life in the Western part of the world is far better than life in, say, Congo or Rwanda or Sudan or Zimbabwe or Haiti? If BLACK RULE is such a good thing, then why do we not see millions of people moving out of racist-homophobic North America/Europe to rainbow Africa? Should you not show a little gratitude to the dead white men whose political and industrial and scientific genius created modern civilization?

    Anyway, hope to see some intelligent discussion here.

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  16. Hal Turner admits to being a snitch.

    http://www.nbcchicago.com/news/local/Shock-Blogger-Hal-Turner-I-Saved-Obama.html

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  17. Shock Blogger(Hal Turner):
    I Saved Obama

    Hal Turner pleads not guilty to threatening judges

    By ZACH CHRISTMAN and DARWIN GUGGENBILLER

    In a bizarre turn of events, the white supremacist shock blogger Hal Turner claimed in court Tuesday that he helped thwart an assassination attempt on President Barack Obama.

    The Internet radio host has been accused of using his Web site to threaten three judges in Chicago, and of urging violence against to two Connecticut lawmakers, telling his readers and listeners to "take up arms."

    In court Tuesday, Turner's attorney said his client was working as an FBI informant, and that he provided them with information that prevented the assassination of Obama. Turner claims the FBI told him what he could and couldn't say about the incident to avoid prosecution.

    But federal prosecutor William Hogan told the judge that he'd "never heard anything about that" and that Turner's contacts with the FBI ended "some time ago."

    Turner was arrested on a complaint filed in federal court in Chicago after he allegedly made threats against three Chicago-based appeals judges who refused to overturn local handgun bans.

    "Let me be the first to say this plainly: These judges deserve to be killed," Turner wrote in an Internet posting.

    The post also included a map of the federal courthouse where the judges are based. The posting stated a map showing the judges' homes would later be added.

    "We take threats to federal judges very seriously," said U.S. Attorney Patrick J. Fitzgerald.

    Turner has pleaded not guilty.

    Copyright Associated Press / NBC Chicago
    http://www.nbcchicago.com/news/local/Shock-Blogger-Hal-Turner-I-Saved-Obama.html

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  18. Hey dickweed (LF cocksucker) I had already posted the link to this. What the fuck did you accomplish by cutting and pasting it?

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  19. WOW. Now...can we all finally admit that Hal Turner was nothing but a snitch and a traitor? There is no excuse anyone can make for him now.

    Let this be a lesson everybody out there. Anyone who wants to pal up with persons who seem predisposed with illegal activity: remember Hal Turner.

    And when you think you've been a good pet rat and made the FBI happy with you, remember Hal Turner. Still going to prison, kiddies. He thought they were his friends too.

    My advice? Stay away from anything even remotely illegal. If you want to be a man, prove it some other way. Otherwise, you might have Hal Turner behind you taking notes. And if you snitch, remember Hal thought he was federally bulletproof too.

    I don't call things often but boy oh boy did I call Hal Turner. Even the feds don't respect a rat. They are only a step lower than the people actually committing the crimes.

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  20. to nimbuster666 - I posted it because I felt like it - next question ?
    Floyd-LF Staff

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  21. Radio host denies threatening federal judges
    July 28, 2009 12:59 PM

    An Internet radio host pleaded not guilty today to threatening to kill three federal appellate judges in Chicago and then sought his release from custody, saying he has been an informant for the FBI.

    Hal Turner, who was arrested last month at his home in New Jersey, shook his head after being handed a copy of the indictment.

    Turner is charged with calling for appellate judges Frank Easterbrook, William Bauer and Richard Posner to be killed after they affirmed a lower court decision June 2 to dismiss challenges to Chicago's handgun ban.

    Turner allegedly used his web site to put out the message that all three were "cunning, ruthless, untrustworthy, disloyal, unpatriotic, deceitful scum."

    "Let me be the first to say this plainly: These judges deserve to be killed," he allegedly said.

    A federal judge from Louisiana will be brought in to preside over the case.

    U.S. Magistrate Judge Martin Ashman gave Turner 10 days to subpoena an FBI agent who Turner contends acted as his handler as he supplied the government with information. Turner's lawyer, Michael Orozco, said Turner prevented military equipment from being sold on the Internet and even tipped off the U.S. Marshal Service to a threat against President Barack Obama.

    "So you're saying he's an American hero," Ashman said somewhat sarcastically.

    As for the charges, Orozco said Turner was only giving his opinion on the judges' ruling and that he has a Constitutional right to free speech.

    Assistant U.S. Atty. William Hogan said a magistrate judge in New Jersey had already ordered Turner detained before he was sent to Chicago, finding that he was a threat to the community. He has continued to air threatening radio messages on the Internet since his arrest, including a call placed from custody in New Jersey, Hogan said.

    Hogan said Turner may have had some contact with the FBI as an informant but that it was quite some time ago. He said he had no idea about any action Turner supposedly took to thwart an attack on the president.

    -- Jeff Coen
    http://www.chicagobreakingnews.com/2009/07/radio-host-denies-threatening-federal-judges.html

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  22. How do you get stains out of suede? What's the best way to treat a bee sting?

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  23. You posted it because you were too fucking drunk to notice that I posted it first. Apology accepted, no you still can't suck my sweet dick. Don't you have better things to do, like molesting your retarded son?

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  24. It is good to see the kind of people Nikki supports, the perverted kind. You and your nimbuster buddies are total degenrates.

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  25. Has anyone thought about this: Hal is going to prison no matter what. Hollow Points. So he admits to being a rat first.

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  26. LFRadio Blurb
    July 28, 2009
    In court today racist broadcaster Hal Turner claimed that he (Turner) saved President Obama from assassination as he (Turner) was an FBI informant.
    ........................
    From Chicago Breaking News Center:
    U.S. Magistrate Judge Martin Ashman gave Turner 10 days to subpoena an FBI agent who Turner contends acted as his handler as he supplied the government with information.

    Turner's lawyer, Michael Orozco, said Turner prevented military equipment from being sold on the Internet and even tipped off the U.S. Marshal Service to a threat against President Barack Obama.

    "So you're saying he's an American hero," Ashman said somewhat sarcastically.

    ReplyDelete

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