Monday, July 8, 2013
The Second Circuit has affirmed a federal jury's conviction of a defendant who used threatening language against federal judges in a blog post in violation of 18 U.S.C. 26 Sec 115(a)(1)(B0. The majority said in part:
The case is U.S. v. Turner, 2d Cir., No. 11-196-cr, 6/21/13); 2013 U.S. App. LEXIS 12748; 2013 WL 3111139.
Here, Turner did not merely advocate law violation or express an abstract desire for the deaths of Judges Easterbrook, Bauer, and Posner. He posted photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse. Moreover, Turner's intent to interfere with these judges—to intimidate them through threat of violence—could not have been more clearly stated in his pointed reference to their colleague, whose family members had been killed: "[A] gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently, the 7th U.S. Circuit court didn't get the hint . . . ." The dissent, acknowledging that Turner wished to see the three judges dead, nevertheless concludes that Turner's statements cannot constitute a true threat because publicly made, although his speech "might be subject to a different interpretation if, for example, the statements were sent to the Judges in a letter or email." [slip op. (dissent at 8)]. It is hard to see how Turner's threat became less threatening, however, because publicly issued—particularly given Turner's own boasting that public dissemination of address information is "an effective way" to instill fear, "to cause otherwise immune public servants to seriously rethink how they use the power lent to them by We The People."
We do not hold and do not mean to suggest that syntax is not a relevant factor for consideration in appropriate cases.But Turner's jury clearly acted reasonably in concluding that Turner's statements amounted to a true threat given, inter alia, his lengthy discussion of killing the three judges, his reference to the killing of Judge Lefkow's family, and his update the next day with detailed information regarding how to locate Judges Easterbrook, Bauer, and Posner. All this is powerful evidence of a true threat—that Turner intended his website to intimidate Judges Easterbrook, Bauer, and Posner and to impede them in the performance of their duties by putting them in fear for their lives.
More importantly, moreover, Turner's interpretation of Kelner--that only communications that facially threaten unequivocal, unconditional, immediate, and specific injury may be prohibited consistent with the First Amendment—is contrary to the Supreme Court's conclusion in Black. The Black Court held that cross burning can constitute a threat, depending upon the surrounding circumstances, because "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." ... But, as the Supreme Court acknowledged, "a burning cross does not inevitably convey a message of intimidation," even though few, if any, messages are as ominous. ... Turner suggests that it is necessary that his statements on their face show that he personally "intend[ed] to take violent action against the judges." But neither Kelner, nor certainly Black, impose this requirement. ...
Turner argues, finally, that his language, on its face, purported to be directed at third parties, rather than the judges themselves, and that it therefore cannot be prohibited unless it constitutes incitement within the meaning of Brandenburg....The dissent appears to agree, concluding that Turner's speech, "as advocacy of the use of force, falls outside the true threats category," but perhaps may still be constitutionally proscribed. [slip op. (dissent at 9)]. This argument, however, again relies overmuch on the literal denotation and syntax of Turner's statements, refusing to acknowledge that threats—which may be prohibited, consistent with the First Amendment—need be neither explicit nor conveyed with the grammatical precision of an Oxford don. Turner's conduct was reasonably found by the juryto constitute a threat, unprotected by the First Amendment; it need not also constitute incitement to imminent lawless action to be properly proscribed.