When pastor Terry Jones burned a Quran in Florida last month, enraged Muslims in Afghanistan, riled up by angry imams, killed 20 U.N. workers. If Justice Stephen Breyer were so inclined, he might say he told us so.
In an interview last fall, George Stephanopoulos asked Breyer about Jones, who had planned to burn the Quran on the anniversary of 9/11. Jones was (temporarily) dissuaded from his plans, but Stephanopoulos wanted to know whether the story had affected Breyer's view of the limits of free speech. Breyer's frustratingly elliptical response, which worried supporters of a robust right to speak freely—myself included—included this musing about the First Amendment: "With the Internet, you can say this. You can't shout fire in a crowded theater. [Former Justice Oliver Wendell] Holmes said it doesn't mean you can shout 'fire' in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is … being trampled to death? It will be answered over time in a series of cases which force people to think carefully."
The problem is that the one group of people who will have to think carefully about it—judges, mainly—are also among those with reason to be the most paranoid about it. This week, a federal judge in Chicago threw out the jury conviction of a white supremacist who had been convicted of using his website to incite violent attacks on a jury foreman. William White created and operated a blog called Overthrow.com. According to his indictment, White used the site to rant about "non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race." He also blogged about Matthew Hale, head of another white supremacist organization who was charged in 2003 with soliciting the murder of federal district court Judge Joan Lefkow, and three counts of obstruction of justice, and convicted on two counts of obstruction of justice and one count of solicitation. He was sentenced to 480 months in prison.
White, following the Hale trial on his blog, wrote in 2005 that "everyone associated with the Matt Hale trial has deserved assassination for a long time." He posted the names of several people connected to Hale's conviction, including federal agents and prosecutors warning that any of them may be the next targets of an "unknown nationalist assassin." In 2008, he went after the jury foreman, describing him as a "gay Jewish anti-racist" and posted a color photo, his birth date, address, phone numbers and—usefully—the name of his cat. He was charged with soliciting a crime of violence against the foreman, and he moved to dismiss, claiming that his postings were protected First Amendment speech. The judge agreed.
In June 2010, a three-judge panel of the Seventh Circuit disagreed, finding that there was sufficient evidence to go to trial and that there was no First Amendment violation. The panel noted that "although First Amendment speech protections are far reaching, there are limits. Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside its protection." The appeals court noted that "Solicitation is an inchoate crime; the crime is complete once the words are spoken with the requisite intent, and no further actions from either the solicitor or the solicitee are necessary." In Hale's case, the court observed, it was enough to uphold a solicitation conviction that he "simply asked his chief enforcer to locate a judge's home address and made statements such as 'that information's been pro-, provided. If you wish to, ah, do anything yourself, you can, you know?' " A trial was ordered.
At that trial, a jury convicted White after only three hours of deliberation. (They also asked to have the courtroom cleared for the verdict and to be allowed to leave the court through a secret exit.) But this week, District Court judge Lynn Adelman threw out the conviction, reasoning that the blog posts "did not suggest or imply that anyone do anything" and that "I am convinced that no reasonable factfinder considering the posts and the context in which they were made could conclude, based on an objective standard, that they constitute a solicitation." Adelman urged that the First Amendment "protects vehement, scathing and offensive criticism of others, including individuals involved in the criminal justice system."
The former jury foreman had testified that while he received texts that said things like "sodomize Obama, Bomb China, kill McCain, cremated[sic] Jews," he was never threatened bodily. And on Thursday, White's lawyer, Nishay Sanan, added in an interview with Wired that White's posting was nothing compared to Sarah Palin's "hit list" of 20 politicians targeted with rifle sights, including Rep. Gabrielle Giffords, who was shot in January in Arizona. "Sarah Palin had put her on a website with a scoped and target, and nobody was charged."
The government will doubtless appeal, as prosecutors did three times in a similar case involving an Internet radio shock-jock, whose first two trials ended with hung juries but finally resulted in a conviction last fall. Hal Turner, another white supremacist, and a favorite of listeners from the KKK and Aryan Nation, was convicted of using his blog to threaten a panel of judges from the 7th U.S. Circuit Court of Appeals and sentenced to 33 months in prison. In 2009, Turner had posted on his blog that three federal judges—Frank Easterbrook, William Bauer and Richard Posner—"deserve to be killed" for their ruling upholding Chicago's handgun ban. He also wrote that "their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions," and referred to the target of Hale's solicitation, Lefkow, whose husband and mother were murdered in 2005 by a former litigant (subscription required).
Turner published photos of the three judges, the address of the federal courthouse, and a map indicating how to get there. All three federal judges testified in two of Turner's trials, including a star turn last August in a Brooklyn courthouse.
When asked how they felt about Turner's postings, each judge testified that they felt genuinely threatened. Easterbrook told the jury last August that upon reading Turner's posts, his "principal concern was that somebody would try to come kill me or shoot me or blow me up." He added: "The world contains an unknown number of people who are willing to do violence that don't know who might be a target until some rabble rouser rouses them." Posner was one of the three judges threatened in the Turner trial and he was also on the panel that allowed White's case to go to the jury. It's hard not to wonder whether being the recipient of solicitations of murder in one case might affect a decision about whether this is protected speech in another.
One coincidence here is that in all three cases—Hale's, Turner's and White's— the threats were against Chicago judges, or actors in the judicial system there, and that the specter of Lefkow's dead family members was invoked in each one. That has to create a special kind of panic among judges trying to coolly determine whether these are true calls to violence or just strong words. And it's certainly not wrong for the judiciary to be anxious about threats against judges. As this thoughtful post about the Turner case reminds us:
According to a January report by the U.S. Department of Justice, federal judges and prosecutors received 1,278 threats of physical violence in 2008, up from 592 in 2003. Additionally, in December 2008, a man was sentenced to seven life terms for shooting and killing a Georgia superior court judge and other personnel in an Atlanta courthouse. In April 2008, an Ohio resident was indicted for threatening to bomb the United States Supreme Court building, and for threatening to attack Supreme Court Justice Clarence Thomas. Supreme Court Justice Ruth Bader Ginsburg, and retired Justice Sandra Day O'Connor, have also been the targets of death threats.
The death of federal judge John Roll in the Giffords attack brought home yet again the impact of violence on judges. So what's the difference between a blogger's hate-filled political rant and an incitement to violence? Looking at similarly violent Web postings, addresses and photos in William White's case, Adelman saw no call to violence, and cautioned that the First Amendment exception for speech that incites violence is highly limited and "applies to the type of speech at issue here—internet communications disclosing personal information about others—even when that speech may tend to alarm or intimidate the persons so identified or expose them to unwanted attention from others."
It's worth considering that in recent months, Justices Breyer, Samuel Alito, and Clarence Thomas have also expressed rather different views about the disclosure of personal information on the Internet. Thomas went so far as to suggest, dissenting in last term's Doe v Reed, that—in the context of ballot initiatives, "the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed." The fact that one can find home addresses and phone numbers online in a flash is a source of particular concern in this context. Under this view you don't even need to post identifying information online to create a threat of reprisal. Your readers can find it themselves.
The line between hateful, even violent speech and calls to violence has certainly been blurred with the advent of the Internet. But it's not clear to me whether or how the lines around the First Amendment should change as a consequence. The judges, prosecutors, and jurors who are themselves the targets of such frightening speech may not always be in the best position to make these judgments. Unfortunately, they are often the ones who must face the most lethal consequences.