Monday, September 26, 2011

Gene Policinski: When what sounds like a threat is really free speech

  When are words that seem threatening not legally a threat?

  A jury in Hartford, Conn., refused on Sept. 16 to convict blogger Hal Turner of charges stemming from online comments he made in 2009 urging others, in response to a new state law, to “take up arms and put down this tyranny by force” and that public officials should “obey the Constitution or die.”

  Jurors decided there was insufficient evidence for a conviction on state charges of “inciting injury to people” or for the lesser crime of “threatening.” These charges trigger two commonly recognized exceptions in First Amendment law: incitement to imminent lawless action and true threats.

  “A lot of what he said was awful,” one juror told the Hartford Courant newspaper. “No one considered him a likable person. No one thought he was someone you’d want to have a beer with, but the law is the law.” Several jurors said the state failed to prove all elements of the charges brought.

  Turner chose to represent himself in a closing statement to jurors, saying, “I never said go attack these men. I said put down this tyranny by force. It’s an abstract concept. You can’t go to a supermarket and buy a can of tyranny. … I did not say go kill those men.” Turner also noted that prosecutors were unable to show that anyone actually was harmed, or that his post led to any violence at all.

  Courts have said words cross the line from free speech to unprotected speech when the speaker actually intends to carry out a threat, or intends the target of his words to believe he will. Another test: The threat has to be realistic. Publicly wishing that a meteor swoop down from space and flatten someone may be distasteful or even hateful, but it does not rise – or sink, if you will – to the level of a “true threat.”

  A lawyer assisting Turner said after the verdict that although the blogger’s words were shocking, they were intended to rouse the public’s concern rather than prompt violent acts. “If we don’t have the right to rouse peoples’ passions then we don’t have a free society,” the lawyer said.

  One factor that likely helped Turner’s case: The blogger noted that he was charged before following up on a public pledge to post the home addresses of certain public officials — which, combined with his exhortation, might have tipped the legal scales against him. Courts in what was called the “Nuremberg files” case, after a website’s name, some years ago found that it was a true threat when the site operator posted home addresses of abortion providers and marked them through when they were killed.

  Turner didn’t walk from the Hartford courtroom a free man. He’s still serving a federal sentence for making similar threats against several federal judges in Illinois. In that case, evidence was presented that Turner had posted the judges’ photographs, addresses, and phone numbers and wrote, “Let me be the first to say this plainly: These judges deserve to be killed.” Two juries were unable to reach a verdict in the Illinois case, but Turner was convicted in a third trial.

  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.

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