The Turner Diatribes

I see that right-wing agitator and Government informant (!) Hal Turner was convicted of threatening to kill three judges for issuing an opinion of which he disapproved. According to the New York Law Journal:

Mr. Turner was arrested in June 2009 after writing on his blog that Judges Richard Posner, William Bauer and Frank Easterbrook "deserve to be killed" for their opinion in N.R.A. v. Chicago, 08-4241, which upheld handgun bans in Chicago and Oak Park, Ill.

"If they are allowed to get away with this by surviving, other judges will act the same way," Mr. Turner wrote. "Their blood will replenish the tree of liberty…A small price to pay to assure freedom for millions."

Mr. Turner, a white supremacist who hosted a weekly Webcast from his North Bergen, N.J., home, also posted the judges' photographs, work addresses and phone numbers.

The waters were muddied by Turner's activities as an FBI informant. According to the Times:

As in the previous trials, defense lawyers for Mr. Turner, who is known as Hal, have focused attention on his long and complicated relationship as a paid informant for the Federal Bureau of Investigation.

The federal agents who worked with him often encouraged his fiery language, reasoning that it could help draw information about the white supremacist movement, and told him that the statements would be protected by the First Amendment as long as no one was actually hurt, said his lawyer, Peter Kirchheimer.

After three trials--the first two resulted in deadlock--the Government has secured a conviction.

From a First Amendment perspective, this one goes very close to the line. Under the leading case, 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." On the one hand, there's no doubt that Turner's language comports with the Brandenburg test; viewed objectively, it clearly called for violence, and even furnished information which would facilitate committing violence.

And yet--Turner challenged both his specific intent that violence result imminently, and that it was likely to produce such action. But for the provision of the judge's personal data, the speech, through reprehensible morally, would be a much easier case, clearly an instance of protected speect under Brandenburg. As it is, the facts require a more complicated analysis.

Turner's speech is an example of what I have called "'directed advocacy' which involves speech urging a particular action be taken in a specific situation.'" (First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004) at 190). Directed advocacy is the context most easily allowing for the imputation of the listener's act to the speaker--hypotheticals or veiled urging (which I term indirect advocacy) and merely depicting a form of behavior as good (undirected advocacy) are each further from the Brandenburg paradigm than were Turner's statements.

However, not all direct advocacy of illegal conduct is subject to criminal sanction. Turner claims that he lacked the intent that violence ensue. However, his making the carrying out of violence by providing the judge's personal data would support a finding that he did, in my opinion.

That doesn't answer the ultimate question, though. There is still the problem of imminence. Under Brandenburg where, as here, the listener has time to reflect, to consider--to decide for himself or herself whether to follow the suggestion, some kind of principle-agent relationship or other power dynamic such that "a pre-existing relationship creates a context whereby the speaker knows that the command, if spoken, will be acted upon" is needed. (First Am., First Princip. at 244). That seems, from all that I have seen here, to be lacking in this case.

The First Amendment took a serious blow in Rice v. Paladin Enterprises, when the Fourth Circuit allowed for the imposition of civil liability for undirected advocacy--a "murder manual" called Hit Man: A Technical Guide for Independent Contractors. The conviction of Hal Turner is not as the kind of body blow to free speech as was that decision (which is inconsistent with later Supreme Court precedent, I was relieved to report). But it does mark an erosion of the bright line drawn by Brandenburg and its progeny, and that should give all of us pause, especially in light of the Government's role in fostering that speech.