Two bloggers whose inflammatory posts landed them in legal trouble have found little relief from federal prosecutors or courts.
On Aug. 13, 2010, a federal jury in New York City convicted conservative New Jersey blogger and Internet radio host Hal Turner of threatening to kill three federal judges. The charge against Turner arose from posts on his blog on June 2 and 3, 2009, in which he wrote that 7th Circuit judges William Bauer, Frank Easterbrook, and Richard Posner "deserved to be killed" after they upheld local handgun bans in N.R.A. v. Chicago, 567 F.3d 856 (7th Cir. 2009). Turner was arrested at his North Bergen, N.J. home on June 24, 2009 and charged under 18 U.S.C. § 115 with threatening to assault and murder the judges with intent to retaliate against them for performing official duties, according to a June 24, 2009 press release from the U.S. Attorney's Office for the Northern District of Illinois.
The attorney's office press release said Turner's June 2009 posts declared "outrage" over the handgun ban ruling, announcing, "Let me be the first to say this plainly: These Judges deserve to be killed." Turner posted photographs of the judges, their phone numbers, work addresses, a photo of the building in which they work, and a map of its location. His post also noted that the 7th Circuit Court of Appeals also decided the case of Matt Hale, a white-supremacist who was imprisoned after being convicted of soliciting the murder of U.S. District Judge Joan Lefkow in Chicago, whose mother and husband were later murdered by a gunman in her home. "Apparently," Turner's post stated, "the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed. ... If they are allowed to get away with this by surviving, other judges will act the same way."
The August 2010 trial was prosecutors' third try. Juries deadlocked without a verdict in December 2009 and March 2010. (See "Blogger White Convicted; Two Mistrials for Turner" in the Winter/Spring 2010 issue of the Silha Bulletin and "Blogger Charged with Inciting Attacks on Judges, Lawmakers" in the Summer 2009 issue.) On August 13, The New York Times reported that in the third trial the jury convicted Turner after less than two hours of deliberation.
According to the Times, Turner had testified that his statement that judges were deserving of death constituted an expression of critical opinion, not a directive. However, the judges—all three of whom testified in the trial—said they felt threatened by the post. The Associated Press (AP) reported August 12 that Bauer called it "a threat of violence ... [which] suggested that the country would be better off if we were killed." According to the Times, Easterbrook testified, "My reaction was that somebody was threatening to kill me."
The AP reported that Turner's defense attorney Peter Kirchheimer said in his opening statements that Turner "thought [the post] was political trash talk. ... It was the same thing he'd done many times before, only this time he was arrested."
Turner had also testified that he was a paid informant for the Federal Bureau of Investigation (FBI), assigned to gather information on extremists who might act on his incendiary remarks. According to the Times, the FBI said Turner's tenure with the agency was erratic and he was eventually let go because of "serious control problems."
The Times quoted an August 13 statement from Patrick J. Fitzgerald, the U.S. Attorney whose office filed the charges: "We are grateful that the jury saw these threats for what they were and rejected any notion that they were acceptable speech." Turner faces a maximum sentence of 10 years in prison and a maximum fine of $250,000.
Charge Reinstated against Blogger William White
On June 28, 2010, the 7th Circuit U.S. Court of Appeals reinstated a charge against blogger William White for soliciting violence against a juror. The U.S. District Court for the Northern District of Illinois dismissed the charge on July 21, 2009. (See "Blogger Acquitted of Soliciting Harm to Juror, Remains in Custody," in the Summer 2009 issue of the Silha Bulletin.) The three-judge panel of the 7th Circuit included Judges Posner, Joel Flaum, and Ann Claire Williams.
White was indicted on Feb. 10, 2009 for violating 18 U.S.C. § 373 by "soliciting a crime of violence" against the foreman of the federal jury—listed in court records as "Juror A"—that convicted Matt Hale in 2004. In 2005, White posted that "everyone associated with the Matt Hale trial has deserved assassination for a long time." On Sept. 11 and 12, 2008, White posted the foreman's previously unpublished name, photograph, home address, and phone number on his website, Overthrow.com.
In reversing the lower court, the 7th Circuit ruled in an unsigned opinion that the "potential First Amendment concern" identified by the district court "is addressed by the requirement of proof beyond a reasonable doubt at trial, not by a dismissal at the indictment stage." The Court cited several cases, including the Hale case itself, to illustrate that section 373 indictments have been upheld even when the threats were not specific and no "further actions" were taken by "either the solicitor or the solicitee." United States v. White, No. 09-2916, 2010 U.S. App. LEXIS 13166 (June 28, 2010)
The Court ruled that the First Amendment analysis turns on White's intent in posting the information about the juror. "If White's intent in posting Juror A's personal information was to request that one of his readers harm Juror A, then the crime of solicitation would be complete. No act needed to follow, and no harm needed to befall Juror A."
The Court concluded that the government's factual allegations supported the indictment. "The question of White's intent and the inferences that can be drawn from the facts are for a jury to decide, as the indictment is adequate to charge the crime of solicitation. The indictment is legally sufficient and should not have been dismissed."
White is currently in federal prison in Beckley, W.Va. On Dec. 16, 2009 he was sentenced to 30 months in prison on an unrelated conviction of three counts of criminal threats and intimidation via the Internet, phone, and mail.
- Patrick File
Silha Fellow and Bulletin Editor