"True Threat" and Undirected Advocacy: Policing the Fine Line

The Second Circuit Court of Appeals has affirmed the conviction of right wing blogger Hal Turner of threatening to assault or murder Circuit Judges Frank Easterbrook, William Bauer and Richard Posner, with intent to impede, intimidate or interfere with them in the exercise of their duties, or to retaliate against their exercise of their duties. As the facts are summarized at Law.com:

Turner began running the Hal Turner Show on a website in 2000 that was popular with groups such as the Klu Klux Klan and Aryan Nations. Between 2003 and 2007, he also helped the FBI by providing information on extremists who visited his web site and proposed acts of violence. The FBI dropped him in 2007 after he was admonished for his own violent speech on the website and his agent handler came to believe there were "serious control problems" with Turner, according to the circuit's opinion.

Turner published a blog post on June 2, 2009 following the Seventh Circuit 's decision in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009).

"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 assure freedom for millions," he wrote.
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Writing for the majority, Livingston said the evidence showed that "Turner's statements were not 'political hyperbole,' as he contended, but violent threats against the judges' lives."

In his blog post, Livingston said, "Turner not only wrote that these three judges should be killed, but also explained how Judge Lefkow had ruled against Matt Hale and how, '[s]hortly thereafter, a gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently the 7th Circuit court didn't get the hint after those killings. It appears another lesson is needed.'"

Livingston said, "Such serious references to actual acts of violence carried out in apparent retribution for a judge's decision would clearly allow a reasonable juror to conclude Turner's statements were a true threat."

Turner had claimed he used "the passive voice"—an argument rejected by the circuit, as Livingston said he "did not merely advocate law violation or express an abstract desire for the deaths" of the three judges, but published their photos and directions on how to find them.

Now, as I wrote back at the time of the conviction, the provision of specific data that would facilitate an assassination attempt complicates the case, but I think that the dissent by Judge Rosemary Pooler has it right; this is an example of what used to be called incitement, and not, as the majority would have it, a true threat that Turner himself would carry out or directly cause to be carried out.

In other words, it has one major step between the advocacy of violence and its execution: Turner had to actually persuade some person in his general audience to act on his ravings. There is no reason in the record to believe that Turner had any specific audience member in mind, or any reason to believe his listeners would act on his suggestion. so this presents a case of what I have called "undirected advocacy", that is, advocacy of illegal conduct that is directed to a specific target but "the real life context of time and place are missing entirely, which renders the applicability of the advice or advocacy less tangible." The listener has time to review the arguments and weigh them, and reach an independent evaluation of whether to act on the advocacy at his or her own leisure, not being swept up in a specific, quick-moving situation. I just don't see this as a true threat, but rather advocacy of unlawful conduct--and thus protected by the First Amendment.