Blogger White Convicted; Two Mistrials for Turner

On Dec. 18, 2009, a federal jury in Roanoke, Va., convicted white supremacist William White on four counts of criminal threats and intimidation. Although one of the counts was later vacated, White was sentenced to 30 months in prison on the remaining three convictions.

White, 32, is the founder of the American National Socialist Workers Party, a Roanoke-based Neo-Nazi group. The criminal counts charged against White stemmed from personal attacks he leveled against several individuals via websites, e-mail, phone calls, and the U.S. mail. Although specific details of White's conduct varied in each instance, he generally would learn of a racial controversy in the news, obtain the contact information of those involved, and send the individuals e-mails, letters, or make phone calls with racially charged commentary.

For example, after Pulitzer Prize-winning columnist Leonard Pitts wrote a column about black-on-white crime, White wrote Pitts an e-mail stating that he looked "forward to the rapidly approaching day when whites once again rise up and slaughter and enslave your ugly race to the last man, woman and child," according to a December 11 report in The Roanoke Times describing Pitts' trial testimony. Pitts testified that he considered the e-mail a threat, especially after he learned that White posted his home address and telephone number on a website frequented by white supremacists.

In addition to charges of threatening Pitts, White was also accused of leveling criminal threats against Charles Tyson, the former mayor of South Harrison Township in New Jersey; Jennifer Petsche, a Citibank employee; Kathleen Kerr, the administrator of a diversity awareness program at the University of Delaware; Richard Warman, a human rights lawyer from Ontario, Canada; and several black tenants of a Virginia Beach, Va., apartment complex who had filed a housing discrimination lawsuit against their landlord.

For his communication with the individuals, White was charged with five counts of violating 18 U.S.C. § 875©, which criminalizes transmitting "in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person." For his communication with the Virginia Beach tenants, White was charged with violating 18 U.S.C. § 1512(b)(1), which criminalizes intimidation to "influence, delay or prevent the testimony of any person in an official proceeding."

In his closing argument, defense attorney David Damico urged the jury to protect White's comments under the First Amendment, reiterating that White never physically approached any of the victims, and that there was no evidence that he did anything violent to anyone, according to a December 19 Roanoke Times report that detailed the verdict.

"That's what this case challenges you to do," Damico told the jury. "Be an American, even if it makes your blood boil, and acquit Bill White."

The trial judge, Senior District Judge James C. Turk, of the U.S. District Court for the Western District of Virginia, instructed the jurors that, in order to convict White, they had to find that his communications constituted a "true threat," which is not protected under the First Amendment. According to The Times, the jury instructions defined a true threat as a statement "made under such circumstances that an ordinary reasonable person who was familiar with the context of the communication would interpret it as an expression of an intent to injure the recipient or injure another person."

The all-white jury found White not guilty of making threats against Pitts and Tyson, but convicted White of threatening Petsche, Kerr, Warman, and the Virginia Beach tenants.

After the jury verdict, White filed a motion in which he asked Turk to reverse the jury verdict for the four counts for which he was convicted. In United States v. White, No. 7:08-CR-00054, 2010 U.S. Dist. LEXIS 9603 (W.D. Va. Feb. 4, 2010), Turk affirmed White's convictions on two of the three counts for violating 18 U.S.C. § 875©, and also affirmed White's conviction under 18 U.S.C. § 1512(b)(1).

In his opinion, Turk acquitted White of the charges concerning Warman after noting that "much of the evidence and violent language attributed to White was taken from blog postings and articles published on the internet." Turk specifically cited an online post authored by White responding to the firebombing of a Canadian Communist party candidate's house, in which White wrote, "Good. Now someone do it to Richard Warman." In another posting, titled "Kill RW," White called for Warman to be "drug out into the street and shot, after appropriate trial by a revolutionary tribunal."

Turk distinguished these online posts from the phone call White made to Kerr and the e-mail he sent to Petsche. He stated that, as opposed to the messages to Kerr and Petsche, the postings were not communicated directly to Warman. In overturning the verdict, Turk relied on Brandenburg v. Ohio, 395 U.S. 444 (1969), in which the U.S. Supreme Court held that the First Amendment protects speech advocating violence unless the speech is intended to incite "imminent lawless action and is likely to incite or produce such action."

"Permitting a conviction on such evidence as presented here would eviscerate the protections that the Supreme Court has steadfastly endorsed with respect to the mere advocacy of violence and forever blur, impermissibly, the line between protected and prohibited speech," Turk wrote.

Turk also upheld White's conviction for sending a letter to several residents of a Virginia Beach, Va., apartment complex who filed a housing discrimination lawsuit against their landlord. White addressed the letter to "Whiny Section 8 n——rs," The Times reported. "You may get one over on your landlord this time, and you may not," White wrote to the residents. "But know that the white community has noticed you, and we know that you are and never will be anything other than a dirty parasite - and that our patience with you and the government that coddles you runs thin."

In affirming the jury's verdict, Turk stated that intimidation under the statute was not required to pass the same test as a "true threat," but instead held that any attempt to intimidate with "a specific intent to influence, delay, or prevent the testimony of any person in an official proceeding" was prohibited by the statute.

"Viewing all the evidence in context," Turk wrote, "a jury might well conclude that White's intent, as expressed by his own words, was to scare the African-American tenants to such an extent that they would not 'do anything,' including pursue the . . . complaint that White referenced in the letter."

Turk sentenced White to 30 months in prison on April 14, The Roanoke Times reported the same day. At the sentencing, Turk told White that, when he gets out of prison, "You can have any thoughts that you want to have, but you ought to keep them to yourself," The Times reported.

The Virginia trial was not the first time White faced criminal charges related to his online writing. On July 21, 2009, Judge Lynn Adelman, of the U.S. District Court for the Northern District of Illinois, dismissed a one-count indictment against White that accused him of violating 18 U.S.C. § 373 by urging harm to the foreman of a federal jury that convicted white supremacist leader Matthew Hale for soliciting the murder of a federal judge in 2004. White published the foreman's previously unpublished name, photograph, home address, and phone number.

In the 2009 opinion, United States v. White, 638 F. Supp. 2d 935 (N.D. Ill. 2009), Adelman also cited Brandenburg in dismissing the charge, noting that White did not expressly advocate that the foreman be harmed. "Knowledge or belief that one's speech, even speech advocating law breaking, may cause others to act, does not remove the speech from the protection of the First Amendment unless the speech is directed to inciting imminent lawless action and is likely to produce such action," Adelman wrote. (See "Blogger Acquitted of Soliciting Harm to Juror, Remains in Custody," in the Summer 2009 issue of the Silha Bulletin.)

Mistrials Declared in Case of Blogger Accused of Threatening Judges



A federal district court judge declared two mistrials in the case against Hal Turner after jurors in Brooklyn, N.Y., twice deadlocked on whether to convict the New Jersey blogger and Internet radio host charged with threatening the lives of three judges on the 7th Circuit U.S. Court of Appeals.



Federal District Court Judge Donald E. Walter declared the first mistrial on Dec. 7, 2009, when the jurors were split 9 to 3 in favor of acquittal, said Richard Gardener, one of the jurors, according to a December 8 New York Times story. Gardener said the jury was troubled that prosecutors ended their presentation of evidence after three days in a trial that had been expected to last more than a week.



During the first trial, prosecutors did not call the three 7th Circuit judges who were the target of Turner's alleged threat as witnesses.



The charges against Turner arose from a post on his blog in June 2008 in which he wrote that 7th Circuit judges William Bauer, Frank Easterbrook, and Richard Posner all "deserved to be killed" after they upheld two local handgun bans in Chicago in Nat'l Rifle Ass'n v. Chicago, 567 F.3d 856 (7th Cir. 2009). (See "Blogger Charged with Inciting Attacks on Judges, Lawmakers," in the Summer 2009 issue of the Silha Bulletin.)



Walter declared a second mistrial on March 10, 2010, when another group of jurors told the court they could not reach a verdict after three days of deliberations, The Times reported on March 11.



In the second trial, Bauer, Easterbrook, and Posner were called as witnesses. At one point while cross-examining Easterbrook, The Times reported defense attorney Michael Orozco questioned the merits of Nat'l Rifle Ass'n, which was granted certiorari and argued before the U.S. Supreme Court on March 2.



"If it's overturned, doesn't that make Hal Turner correct?" Orozco asked.



"This blog post says any judge who decides a case incorrectly is supposed to be assassinated," Easterbrook responded, according to The Times. "That is not the way the system works."



During his testimony in the second trial, Turner denied making a threat and said his commentary was political hyperbole that is protected by the First Amendment, The (Hackensack, N.J.) Record reported on March 11.



The third trial for Turner is scheduled to begin on August 9 in Brooklyn, N.Y., The Record reported.



- CARY SNYDER



SILHA RESEARCH ASSISTANT

Categories

Pages

Powered by Movable Type 4.31-en

About this Entry

This page contains a single entry by cla published on June 7, 2010 10:42 AM.

11th Circuit Rejects 9th Circuit's National Internet Obscenity Standard was the previous entry in this blog.

U.S. Supreme Court Refuses to Hear Hustler's Right-of-Publicity Appeal; Georgia Legislature Modifies State Open Records Law is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.