Gene Policinski: Free speech or threat? A tough call sometimes

  A white supremacist faces sentencing for soliciting violence against a juror after a federal appeals court in Chicago decided that even though he never openly asked for anyone to kill or harm the person, his online posts were clear enough.

  The decision is another reminder that although the government cannot successfully prosecute a person, or a court send them to jail, because of mere ideas, the time, place and manner in which a person speaks — or even their intended audience — makes a difference.

  A three-judge 7th U.S. Circuit Court of Appeals panel on Oct. 23 reversed a federal judge’s decision and said William White’s online calls for the assassination of “everyone associated with” the conviction of another racist, Matthew Hale, were criminal solicitation — and thus not protected speech.

  The appeals court said White’s comments were not just “loathsome,” which would be protected by the First Amendment, but were such that a reasonable jury could have found the comments to be illegal from “the contents of White’s Web site, its readership and other … factors.”

  In general, for such a threat to be criminal conduct, it has to incite “imminent lawless conduct,” likely to produce violence directly and quickly. The threat also has to be possible to be carried out. Openly wishing someone to be hit and killed by a meteor may be a repellent thing to say, but the speaker has no means to carry it out or incite others to do so.

  In White’s case, the three appeals judges said White crossed the line into unprotected speech by calling for the assassinations, while publishing the juror’s name, color photo, home address, phone numbers and other personal information. Further, they said, White did so on a site where readers “were not casual Web browsers, but extremists molded into a community by the internet — loyal and avid readers who … know that Overthrow.com identified hateful enemies who should be assassinated.”

  The appeals court added, “White didn’t have to say harm Juror A. All he had to do and did do to invite violence was to sketch the characteristics that made Juror A a mortal enemy of White’s Neo-Nazi movement and publish Juror A’s personal contact information.” It also found that although no one person was solicited to injure or kill the juror, posting the information on such a site was “specifically designed to reach as many white supremacist readers as possible so that someone could kill or harm Juror A.”

  White targeted the juror for being the foreman of a jury that convicted Hale of soliciting the murder of a federal judge.  “Fortunately,” the appeals judges noted, “No one took (White’s) invitation.”

  Nothing about White’s racial smears and violent tone is worth repeating or even reading — but his right to speak in such a manner is protected unless there is strong, unmistakable evidence it’s intended to invite or directly cause violence against an identified individual.

  In this case, judges at the appellate level disagreed with a judge at the district level and said White’s posts did just that. It’s a good example of how difficult it is — and should be — to criminalize what we do say, let alone what we may invite but don’t say.

  About the author: Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.

  This article was published by the First Amendment Center.