What's The Line Between Ill Wishes And Threats?

Law

In English law, it was once high treason merely to "compass or imagine" the death of the king or his heir, even without a specific threat of regicide. Over the last century, American courts have held that the First Amendment requires us to distinguish between imagining a thing and threatening to do that thing. Figurative references to the deaths of our opponents may not be punishable "true threats." Hence when eighteen-year-old anti-draft protestor Robert Watts said back in August 1966 "I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J," the Supreme Court held that his words could not be interpreted as a true threat against the President.

But where is the line between a rhetorical device and a threat? Can't people threaten indirectly, through images and figures of speech? When the local hood says to the grocer, "Nice store. Shame if something happened to it," is that not a threat?

That's the question the Second Circuit confronted in evaluating the conviction of white supremacist blogger and radio host Hal Turner. Last Friday a divided Second Circuit panel affirmed Turner's conviction for threatening federal judges who had issued a Second Amendment decision that make him angry. The case shows how difficult it can be to distinguish among political rhetoric, threats, and incitements.

Turner was upset with three Seventh Circuit judges who held that the Second Amendment's right to bear arms was not incorporated under the Fourteenth Amendment — that is, they held that the Second Amendment restricted only the federal government, not the states. The Supreme Court later disagreed, but not before Hal Turner called for the death of the Seventh Circuit judges who decided the case.

Though Turner did not threaten to kill Judges Frank Easterbrook, William Bauer, and Richard Posner himself, his call for their death was not at all coy:

All the years of peaceful legal challenges; all the years of peaceful appeals; all the years of peacefully and lawfully lobbying federal and state legislators, to achieve the penultimate goal of finally interpreting the meaning of the Second Amendment, only to have it all thrown in the trash by three Appellate Judges in a manner so sleazy and cunning as to deserve the ultimate response.
. . .
The government—and especially these three Judges—are cunning, ruthless, untrustworthy, disloyal, unpatriotic, deceitful scum. Their entire reason for existing is to accrue unto themselves, power over everything. The only thing that has ever stood in the way of their achieving ultimate power is the fact that We The People have guns. Now, that is very much in jeopardy. Government lies, cheats, manipulates, twists and outright disobeys the supreme law and founding documents of this land because they have not, in our lifetime, faced REAL free men willing to walk up to them and kill them for their defiance and disobedience.

Thomas Jefferson, one of our Founding Fathers, told us “The tree of liberty must be replenished from time to time with the blood of tyrants and patriots.” It is time to replenish the tree! Let me be the first to say this plainly: These Judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.

Turner went beyond this rhetoric to invoke the murder of the family of federal judge Joan Lefko, which at one point was attributed (incorrectly) to supporters of white supremacist Matthew Hale, who were infuriated that she had ruled against Hale in a trademark dispute:

Shortly thereafter, 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 after those killings. It appears another lesson is needed. These Judges are traitors to the United States of America. They have intentionally violated the Constitution. They have now also intentionally ignored a major ruling by the US Supreme Court. If they are allowed to get away with this by surviving, other Judges will act the same way. These Judges deserve to made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.

Turner followed up with information about how to find, and kill, the judges:

The next day, Turner posted an “update” stating: “Judges official public work addresses and a map of the area are below. Their home addresses and maps will follow soon. Behold these devils . . . .” What followed were the names and photographs of United States Circuit Judges Frank Easterbrook, William Bauer, and Richard Posner; the room numbers for each of the judges’ chambers within the Everett McKinley Dirksen United States Courthouse; and a photograph and map of the courthouse’s location in Chicago. On the building’s photograph Turner drew red arrows and wrote, “Anti-truck bomb barriers,” to illustrate the location of these barriers around the building.

Turner was indicted for threatening to kill the judges with intent to intimidate them in the course of their duties in violation of Title 18, United States Code, Section 115. After two mistrials he was convicted. On appeal to the Second Circuit, Turner argued — among other things — that the evidence was insufficient to show that his statements were "true threats" rather than political rhetoric. Last Friday the court affirmed the conviction on a 2-1 vote.

I've written before about the "true threat" doctrine, which requires that the government prove that a defendant's words were (under some statutes) subjectively intended to be a threat, or (in other cases) reasonably interpreted as a threat rather than mere rhetoric. Here the court applied the objective test:

This Circuit’s test for whether conduct amounts to a true threat “is an objective one—namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury.”

However, the court also recognized that some cases seem to require a subjective test — that is, proof that the defendant intended for the statement to be interpreted as a threat. The court found either test satisfied by the evidence.

Here, the court found that Turner framed his political rhetoric with statements suggesting he had the power to have the judges killed.

Turner posted on his website that “Judge Lefkow made a ruling in court that I opined made her ‘worthy of death[,]’ [and] [a]fter I said that, someone went out and murdered her husband and mother inside the Judges Chicago house.” Given that Turner’s statements publicly implied a causal connection between Turner’s calls for judges’ deaths and actual murders, his statements about Judges Easterbrook, Bauer, and Posner, were quite reasonably interpreted by the jury as the serious expression of intent that these judges, too, come to harm.

The court also noted that Turner sent emails suggesting that he intended for his words to intimidate the judges:

The first email, which Turner sent to a Utah state court official after a judge’s ruling angered him, stated, “[M]aybe I ought to abuse my power and give out [the judge’s] home address.[] Having done such things in the past, I know this is an effective way to cause otherwise immune public servants to seriously rethink how they use the power lent to them by We The People.”

Two judges of the court rejected Turner's argument that careful examination of his exact words showed he uttered no direct threat, and disagreed with the dissenter's view that Turner had only incited, not threatened. Threats, the court held, can be implied or expressed rhetorically:

As we have said before, “rigid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render the statute powerless against the ingenuity of threateners who can instill in the victim’s mind as clear an apprehension of impending injury by an implied menace as by a literal threat.”

. . .

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 . . . .”

In dissent, Judge Pooler asserted that Turner's words could not be taken as a true threat because they called for other people to kill the judges, and because true threat law should apply primarily to direct threats of harm by the speaker. Pooler argued that Turner's actions should have been treated as an incitement to murder, and therefore evaluated under the Brandenburg standard by inquiring whether Turner's words posed a clear and present danger of imminent lawless action and were intended to create that danger.

Turner may seek review by the full Second Circuit, and given the importance of the First Amendment issue, the court may accept; that would lead to a fuller exposition of the contours of the true threat doctrine.

There's no question that free speech is seriously threatened if courts interpret true threats too broadly. There's no question that freedom of expression does, and ought to, include asserting the moral justification for the death of government officials that the speaker sees as tyrannical. However, I think the majority made the right call here. Turner's argument was that the evidence was insufficient to show he had made a true threat, and therefore the relevant question on appeal was whether any reasonable jury could have found the facts sufficient to show that a reasonable person would interpret his words as a threat. Turner's communications — particularly his bragging after the initial threat — strongly suggested that he intended his words to intimidate government officials, and that it was reasonable for government officials to take his words as threatening.

As the court said, the law does — and should — look beyond the literal interpretation of words to how they are understood. Everyone understands that "nice store you've got; it would be a shame if anything happened to it" is a threat. If I posted "if you spam me again, I will post your children's school address and their pictures to my violent and demented followers," people would understand it as a threat, even though I am not suggesting I will commit violence myself. If I say "the judge should consider, before ruling on my motion, that I have friends, and my friends have knives, and know where she lives," people would understand that to be a threat. True threats are outside of the protection of the First Amendment because they intimidate rather than persuade.

We should watch closely for any undue expansion of the true threats doctrine. But Turner's conviction doesn't seem to represent such an expansion.

Last 5 posts by Ken White

68 Comments

67 Comments

  1. TJIC  •  Jun 24, 2013 @8:38 am

    But where is the line between a rhetorical device and a threat?

    Arlington MA.

  2. Nicholas Weaver  •  Jun 24, 2013 @8:43 am

    I should sue you for libel-slander. I'm demented but not violent.

  3. David  •  Jun 24, 2013 @8:51 am

    Turner doesn't understand what "penultimate" means.

  4. Justin  •  Jun 24, 2013 @9:35 am

    @David
    Perhaps he does know what it means. Maybe sorting out the second amendment is secondary only to, you know, killing all the non-white people.

  5. NI  •  Jun 24, 2013 @9:36 am

    Factual correction: Matthew Hale and his friends had nothing to do with the shooting of Judge Lefkow's family; it later turned out that they had been killed by a different disappointed litigant.

    On another note, I wonder to what extent 9/11 has changed things. My sense is that public officials in general have far thinner skins for what consitutes a threat than they used to. Public schoolchildren certainly don't have to say much to find themselves arrested and expelled for making threats.

  6. perlhaqr  •  Jun 24, 2013 @10:48 am

    Of course, there's a third factor, that of asking judges to rule about the issue of threats against judges. The entire professional class is by definition in conflict of interest.

  7. En Passant  •  Jun 24, 2013 @11:27 am

    I agree with Pooler's dissent.

    To be perfectly clear about it, I am always opposed to the "raise the objection at trial or lose it" rule, in this case the omitted Kelner jury instruction.

    I think that rule turns what should be a fair trial into a mere realtime game of "Think Fast!"[1]; and turns appellate cases into a game of "Gotcha!"[2] based on defense performance in the first game.

    These are played between well funded government attorneys with all the teleprompter-like courtroom assistants a lawyer could wish for, and overloaded defense attorneys with limited or no budgets and not enough sleep.

    Justice should not depend on how much lawyer you can afford, or how fast a lawyer can play in a speedball setting. Government can always spend more, and hire faster lawyers than you can. One slip of your lawyer's tongue can cost you your life, whether you are actually innocent or not.

    FN 1: "Think Fast!" was an informal game I recall from elementary school, played by a group standing around with a baseball, otherwise just talking and chewing the fat. Whoever had the ball would suddenly fire a hardball at some unsuspecting participant with the words "Think Fast!". If the subject caught the ball, or dodged it, he would get the ball. Otherwise the one who threw it got to keep it, and the subject got a bruise.

    FN 2: "Gotcha!" See Eric Berne's Games People Play "Now I've Got You, You Son of a Bitch!"

  8. mud man  •  Jun 24, 2013 @12:35 pm

    Does this relate to Clark's comments to the post yesterday? "… hung from lampposts" … he sounded sincere to me …

  9. Ron Larson  •  Jun 24, 2013 @12:36 pm

    If it walk, talks, and quacks like a duck. Then it is a duck.

    Wishing violence on those with whom you disagree is a threat. He could have wished they resign, get fired, or see the errors of their decisions.

    Those who have a following, such as a religious leader, political figure, author, radio or TV personality, have a higher duty to think carefully about that they say.

    That kid who "threatened" LBJ was an individual just venting. Big difference.

  10. Chris  •  Jun 24, 2013 @1:19 pm

    @ Ron Larson • Jun 24, 2013 @12:36 pm

    Well thank you for drawing that line for us Ron.

    Maybe you could tell us how many is a following? Or show me in the First Amendment where it says "If your speech is heard by more than X number of people, this amendment doesn't apply."

  11. Doctor Railgun  •  Jun 24, 2013 @1:53 pm

    Sadly, Turner doesn't know what the Second Amendment says (or means). For some reason he seems to think it means 'I have the right to carry a gun to (hopeully someday) kill people I don't like'. To be fair, lots of people seem to have copies of the Constitution with all that pesky talk of militias edited out.
    Oh, well. I guess KEEP AND BEAR ARMS!!!!11!!eleven! saves ink and paper.

  12. ZarroTsu  •  Jun 24, 2013 @2:01 pm

    Completely out of context here, but I can't help but wonder if citing video game experience as a source for skill onto a threat would count it as a true threat or just make you look like a dumbass.

    More onto context, I wonder what the argument would be like if you threatened someone on the grounds that you're capable of getting enough kills in CoD to call an air strike.

    Damn, I should be a writer for a crime show.

  13. William  •  Jun 24, 2013 @2:05 pm

    Heres the tough question that won't be addressed: given our history as a nation founded through bloody revolution against the government, should there perhaps be greater legal protections for marginal threats (or incitement of violence) made in the course of political discourse against government officials in response to specific political actions? Quite a few of the words of our founders are no less violent or threatening than what this scummy little white supremacist said and we do have a Second Amendment which, while not itself a threat or incitement, has the pretty clear historical context of maintaining the ability of the people to kill government officials.

    Punish murder, punish threats against private individuals, even punish threats designed to intimidate in most court matters, but invoking the language of violence in the political discourse, ugly as it might be, is as American as apple pie. Context matters. Just as we know the difference between a mobster and a friend uttering "nice shop, shame if something happened to it," maybe there is room in the law for understanding the difference between saying "someone ought to kill you" to your neighbor and to a federal judge who just voted to castrate the bill of rights. That seems especially true, to me, given the incredible level of protection that most government officials enjoy.

  14. Ancel De Lambert  •  Jun 24, 2013 @2:24 pm

    I am sick of this misuse of Jefferson. The blood of tyrants AND PATRIOTS. Grab the gun, do it yourself, and then get shot dead by the police. Do it yourself, don't demand that others commit your coarse murder for you. If you use this quote in this manner, you are a coward, and should crawl back into your coward hole. Everyone on Fox News who used this quote during the inception of the Tea Party was, and is, a coward. They should not be listened to, their conviction is weak, and they are weak. They are not vaulting the barricade themselves, they are pushing others over it. If you use this quotation in any seriousness, you had best be prepared to die in its completion. Until then, shut up.

  15. Ancel De Lambert  •  Jun 24, 2013 @2:32 pm

    @Ron Larson
    Rhetoric is practically an accent now, and wishing death on someone isn't so much a threat as it is simply misplaced, and childish. We don't simply throw these people in jail because we know it won't help them at all, and all they really need is to grow up. They don't ask for resignation or enlightenment because they don't feel it expresses the emotions they have. Education and literacy would solve what you see as a broach of etiquette, not litigation.

  16. Sam  •  Jun 24, 2013 @2:55 pm

    @William:

    I find the "historical context" of the Second Amendment to be protection from unjust government, not aggression against it.

    Also, the judges pretty clearly stated it wasn't just the "someone ought to kill you" sentiment but also the added "and people have killed those I think ought to die before" statement that constituted a threat.

  17. Ron Larson  •  Jun 24, 2013 @3:04 pm

    Chris..
    Maybe you could tell us how many is a following? Or show me in the First Amendment where it says "If your speech is heard by more than X number of people, this amendment doesn't apply."

    I think say you you want do yourself, versus telling your follower what you wish them do to.

    The reason I mention that public figures have an extra duty of responsibility is because I see case after case of abuse of such power on other countries. We see this in Pakistan, where Imans whip up their flocks in to murderous mobs and then unleash them to destroy their targets. I don't accept that these leaders don't bear any responsibility. I think they know exactly what they are doing. I would hate to see such techniques work here too.

  18. Tom  •  Jun 24, 2013 @3:24 pm

    David,

    That's what I thought at first, too, but on second reading, I think he's saying that Heller achieved the penultimate goal of getting SCOTUS to interpret the second amendment as including an individual right to K&BA, with the ultimate goal being incorporation, which these judges ruled against.

    And on the topic of Ken's post, I think I provisionally agree with him on the facts presented, but have the nagging feeling that I'd be less ambivalent if he'd been prosecuted for incitement.

  19. whheydt  •  Jun 24, 2013 @4:05 pm

    Anyone else here ever read Kieth Laumer's _A Planet for Texans_?

  20. AlphaCentauri  •  Jun 24, 2013 @4:11 pm

    I don't know that charging "incitement" is the way to go. I got the sense that he was less interested in whether or not those particular judges — or their children — ended up dead as he was in making all other judges fearful in the future of issuing rulings he dislikes. The intended audience was judges, and possibly inciting listeners to actually commit murder was something he was callously unconcerned about.

  21. Tom  •  Jun 24, 2013 @4:26 pm

    But he was convicted of threatening those particular judges.

  22. SirWired  •  Jun 24, 2013 @4:34 pm

    There are interesting issues here, but I have a tough time mustering many brain cells to consider his defense, as calling for the violent deaths of the families of those with which you have a political disagreement, even if it is a true threat or not, doesn't exactly elevate the public discourse. (Of course, you could say the same thing about much (most?) public discourse throughout history.)

  23. James Pollock  •  Jun 24, 2013 @5:12 pm

    "Heres the tough question that won't be addressed: given our history as a nation founded through bloody revolution against the government, should there perhaps be greater legal protections for marginal threats (or incitement of violence) made in the course of political discourse against government officials in response to specific political actions?"
    Did the revolutionaries receive greater legal protections from King George's Redcoats?

    "we do have a Second Amendment which, while not itself a threat or incitement, has the pretty clear historical context of maintaining the ability of the people to kill government officials."
    I'm pretty sure the government officials wouldn't have voted for it if that was the intended meaning. And it takes a LOT of government officials to pass a constutional amendment.

    "maybe there is room in the law for understanding the difference between saying "someone ought to kill you" to your neighbor and to a federal judge who just voted to castrate the bill of rights."
    While death is A method for removing misbehaving judges, it is not the PREFERRED method. If people start getting arrested for saying "someone ought to impeach you", we can reopen the discussion.

  24. James Pollock  •  Jun 24, 2013 @5:18 pm

    "Anyone else here ever read Kieth Laumer's _A Planet for Texans_?"
    A closer examination of the cover will reveal that it's H. Beam Piper's name on it, and the title was changed to "Lone Star Planet", but yes. Not his best work. Read "Little Fuzzy" instead. Last time I checked, it was available free on the Amazon Kindle store.

  25. whheydt  •  Jun 24, 2013 @6:34 pm

    Re: james Pollock.

    When you get older, there are two things that go…your memory and I forget what the other one is.

    Yeah…Piper. Though Laumer's "Retief" stories have a lot to recommend them, they wouldn't be a close fit for this particular discussion, where Piper is…to a degree.

    I was particularly thinking of the court used to handle political cases.

    (And, yes, _Little Fuzzy_ may be Piper's best work, especially since his Paratime stories are, apparently, driven by some rather strange beliefs he had.)

  26. jdgalt  •  Jun 24, 2013 @6:47 pm

    If you parse it in term of what the speaker must really want or expect to do or have happen, the only answer is an attack by others. Thus Pooler's dissent is correct, as far as it goes.

    But in terms of what the law ought to be, rather than what it is, I have to second James Pollock's ideas. The reason all those grievances are listed in the Declaration of Independence is to try to make the case that King George's treatment of the colonists satisfied the conditions Locke set in Two Treatises of Government for the right of revolution. And I believe that any threat (including far-fetched conditionals) that would not be wrong to carry out ought not be illegal to make.

  27. Stephen Hutcheson  •  Jun 24, 2013 @6:54 pm

    Anyone else here ever read Kieth Laumer's _A Planet for Texans_?

    AKA "Lone Star Planet", public domain and available at Project Gutenberg: http://www.gutenberg.org/ebooks/20121

  28. Wayne Borean  •  Jun 24, 2013 @7:32 pm

    Wishing violence on those with whom you disagree is a threat. He could have wished they resign, get fired, or see the errors of their decisions.

    Exactly what I was going to say.

    If you run your mouth, you deserve the consequences. He ran his mouth, and now he gets to pay.

    We have proof that people will listen, and do things. Remember Thomas Becket? "Will no one rid me of this turbulent priest?" are the words that Henry II supposedly said. He didn't even make a threat – but his followers decided to take action.

    Wayne

  29. Robert White  •  Jun 24, 2013 @8:05 pm

    I'm pretty sure the line is the first-person and active verb tense. "I am gonna…" vs "I wish someone would".

  30. En Passant  •  Jun 24, 2013 @8:18 pm

    Wayne Borean wrote Jun 24, 2013 @7:32 pm:

    If you run your mouth, you deserve the consequences. He ran his mouth, and now he gets to pay.

    We have proof that people will listen, and do things. Remember Thomas Becket? "Will no one rid me of this turbulent priest?" are the words that Henry II supposedly said. He didn't even make a threat – but his followers decided to take action.

    You just made dissenting Judge Pooler's point — that Hal Turner's words were incitement, not a threat; and therefore not prosecutable under the statute.

    And moreso, since nobody had even crowned Hal Turner king before he said them.

  31. Robert White  •  Jun 24, 2013 @9:06 pm

    In an age when we are recompensed by reputation, such as "hits" on a web site or "number of followers", and particularly when someone is in the business of talking (say as having a radio show), we have a case of attempted conspiracy to commit in the name of financial gain.

    In this case the speaker gains hits/followers by demonstrating his influence. If he can get a person to act he proves himself influential, which has a direct impact on his bottom line as a radio personality etc.

    There is a direct coupling of core business model (inciting speech, and ad revenue) and coercion (establishing duress of judge's behaviour via inciting speech) that leaves the speaker in the role of "inciting duress for ad revenue".

    In short this is actually extortion. It is "I will, and have, raised these judges threat level and lowered their expectation of safety for the express purpose of proving my own power and thereby increasing my following and the revenue it generates."

    This takes us _directly_ to the idea behind "nice store you have here, shame if something happened to it", which is the classic model of extortion.

    Taken to its base, and stripped of its set dressing, this sort of speech isn't about threatening harm. It's about "promising to threaten" or "threatening to threaten". It's "pay me or I will have to come back and threaten you for real". It's "do what I say, or we'll have to play Russian Roulette".

    Blackmail is also this sort of offence. I'm gonna mail your spouse these pictures. I don't know what _they_ will do when the get them but I bet you wont like it.

    Trying to make this a "direct threat of violence" is a case that _shouldn't_ be made. The indirection happens at another level. This is really a social assault. The "battery", the unwanted touch, is ill defined. It's "all these unknowns will be brought into direct contact with your life and it's safety". The assault, is not a threat of violent action, its the threat of that unwanted touch.

    And yes, I do think "social assault" and its attendant "social battery" are things that need to come into law now that we are "an information society". This is, by the way, where the whole "online bullying" thing needs must end up.

    I will, or I have, made you feel less safe and imminently threatened. That's the core definition of assault.

    A translated, what is the threat behind "I'm going to tell all your enemies where your children go to school"?

    Placing someone in imminent threat of a battery doesn't require that the person performing the assault will be the person who will perform the battery. Consider the simple assault behind "Stop or my mom will shoot!"…

  32. David Dyer-Bennet  •  Jun 24, 2013 @9:22 pm

    I don't think wishing a bad end on people constitutes a threat; if I said "I'd be happy if so-and-so were struck by lightning or drowned in a flash flood", I'm clearly wishing violence — but I am NOT saying ANY human agency ought to commit the violence. Whereas if I say "he should be shot", and somebody shoots him, it doesn't seem entirely unfair for people to inquire as to whether I'm partly responsible.

  33. Basil Forthrightly  •  Jun 24, 2013 @10:34 pm

    On first reading of the post, I was favoring Pooler's dissent. Our prototype of a "threat" is the face-to-face confrontation, where the threatener demands a specific action to save off imminent harm. However, we all know a real threat doesn't require immediacy – "do what I say or I'll kill you next month" is a real threat – or personal agency – "do what I say or my boys will kneecap you" is a real threat – or a direct communication – a poster reading "any shop on this block not contributing to the fire protection fund by the 1st will suffer the consequences" is a real threat.

    I think the essence of a true threat is a communication that means "do what I say or suffer a harm"; it must also be communicated in a way intended to communicate with at least some of the victims.

    It think Turner's communication (as condensed) was clearly "judges, rule the way I want or you will be hurt" AND SIMULTANEOUSLY "some people should start hurting judges until they rule the way I (we) want". It was both a threat and an incitement.

  34. Matthew  •  Jun 24, 2013 @11:16 pm

    I strongly disagree that this isn't protected speech, but I would likely ramble on and fail to make my point, so I'll just leave it at that.

  35. James Pollock  •  Jun 25, 2013 @12:11 am

    The factor I'd look at is the reasonable likelihood that there are accomplices in play. When the gangster says to the storeowner "nice place you have here, shame if anything should happen to it", what makes it a a threat is not that the shopowner believes that the gangster himself might cause damages (although he might), but that he has agents he can call on who can and will cause damages.

    When you start talking about killing/injuring judges (or anyone else), it's threatening if it's reasonable to believe that you have agents who might kill or injure judges even if you yourself never touch a weapon nor come near a judge.

    Of course, this just sidesteps the question… when is it reasonable to believe that someone has agents to do their criminal bidding? Without being able to define a bright line rule, I think the right result was obtained in this case.

  36. Gordon  •  Jun 25, 2013 @2:42 am

    If you notice the personal motto of Thomas Jefferson, "Resistance to tyranny is obedience to God" (a reference to Cromwell and the beheading of Charles I) and he motto of the State of Virginia, "Sic Semper Tyrannis" (a reference to Shakespeare and the assassination of Caesar), and combine those with "the powers not delegated to the United States by the Constitution…are reserved…to the people", it seems obvious that the founding fathers considered assassination of tyrants to be a protected civil right.

  37. Alan  •  Jun 25, 2013 @5:44 am

    " There's no question that freedom of expression does, and ought to, include asserting the moral justification for the death of government officials that the speaker sees as tyrannical. "

    You seriously believe that, wow!! I'm stunned that anyone living in a democracy could believe that is a reasonable posiiton to hold.

  38. En Passant  •  Jun 25, 2013 @6:38 am

    James Pollock wrote Jun 25, 2013 @12:11 am:

    When you start talking about killing/injuring judges (or anyone else), it's threatening if it's reasonable to believe that you have agents who might kill or injure judges even if you yourself never touch a weapon nor come near a judge.

    Of course, this just sidesteps the question… when is it reasonable to believe that someone has agents to do their criminal bidding? Without being able to define a bright line rule, I think the right result was obtained in this case.

    Except for your conclusion that "the right result was obtained", you are making the Judge Pooler's dissenting point that Turner was inciting, not making a threat.

    Nowhere does the majority conclude that Turner had agents. Nowhere do they conclude that the jury could reasonably find that he had agents, nor do they conclude that the jury did so.

    The majority only found he was making a threat because he was so adamant and thorough in his incitement that it caused his targets to reasonably "interpret it as a threat of injury".

    For example: he published "photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse."

    Everything that Turner published was available from publicly accessible sources. If he actually had agents he would not have needed to publish that information.

    As Judge Pooler points out in dissent, Turner might have been convicted for incitement even under Brandenburg. But he was not charged with incitement. He was charged three times with making a threat. Three. Times.

    And two of those times a jury failed to convict.

    If justice means anything at all, it must never mean "He should be convicted of something. This is something. Therefore he should be convicted of this."

    I think the prosecutor dishonored Judges Easterbrook, Bauer and Posner, for whom we all have and should have great respect. He persistently brought charges so wrongly conceived that two juries failed to convict, in a brazen politically motivated attempt to expand the ambit of true threats doctrine.

    I am disappointed that the appellate court let him get away with it.

  39. Lizard  •  Jun 25, 2013 @6:40 am

    "Wishing violence on those with whom you disagree is a threat."

    Only if one believes in magic. Even if one does, I don't think that the government should consider magic as part of the legal system.

  40. Ken White  •  Jun 25, 2013 @7:33 am

    @Alan:

    "There's no question that freedom of expression does, and ought to, include asserting the moral justification for the death of government officials that the speaker sees as tyrannical. "

    You seriously believe that, wow!! I'm stunned that anyone living in a democracy could believe that is a reasonable posiiton to hold.

    Okay. So: evidence shows that a government actor has tortured a detainee to death at the orders of another government official.

    I argue that, under my understanding of concepts of justice, those government actors should be tried and executed.

    Should that expression be permitted by the state?

    What about if I said that, under our heritage of revolution against grave injustice, it is morally acceptable to revolt and execute such government actors? Should that be prohibited?

  41. Ben Harris  •  Jun 25, 2013 @8:19 am

    In English law, it was once high treason merely to "compass or imagine" the death of the king or his heir, even without a specific threat of regicide.

    That still is treason (not sure about the "high" part). Treason Act 1351.

  42. perlhaqr  •  Jun 25, 2013 @8:45 am

    You seriously believe that, wow!! I'm stunned that anyone living in a democracy could believe that is a reasonable posiiton to hold.

    No, silly duckling. I'm not sure where you reside, but we Americans live in a Republic, not a Democracy. Please do at least some of the background reading before trying to jump in…

  43. AlphaCentauri  •  Jun 25, 2013 @9:17 am

    No, silly duckling. I'm not sure where you reside, but we Americans live in a Republic, not a Democracy. Please do at least some of the background reading before trying to jump in…

    You know what he meant.

    The point is that just because you personally want to be rid of the person in power, you do not have the right to assassinate him/her. The reason is that if a majority of citizens agreed with you, you wouldn't need to assassinate anyone. Assassination is the tool of choice for people whose views are not widely shared by the people being governed.

    Suppose you do assassinate a leader. Then what? Who replaces him? And do the previous leader's supporters get to assassinate him? So who would take such a job.

    After a brief transition of anarchy, such a system would reorganize into feudalism, with warlords having their own armies to defend themselves against opposing groups.

    If you think assassination is a good solution, there are disorganized societies where it is already in practice. Go perfect their system. There aren't many people willing to experiment with it here.

  44. Pharniel  •  Jun 25, 2013 @9:33 am

    @AlphaCentauri – Indeed. it's amazing how few (g)libritarians are actually willing to live in societies where they would have true freedom to enact such agendas such as Somalia and other 'failed' states.

    Turner published the judges information and told his followers they were terrible people for the same reason Dr. Tiller's (and other abortion provider's) information was published and they were identified as terrible people. Turner was hoping for the exact same outcome and he clearly wanted to draw upon those parallells.

    We don't even imagine that he was making "nice store you have here.." comparisons since we already have a set of domestic terrorists who use the same methodology.

  45. Alan  •  Jun 25, 2013 @9:46 am

    @perlhaqr

    A Republic is a form of Democracy – per wikipedia "Democracy is a form of government in which all eligible citizens have an equal say in the decisions that affect their lives".

  46. Ibidem  •  Jun 25, 2013 @9:48 am

    Regarding the "moral justification" question, I see one big gap:
    If someone asserts that the death of someone would be justified, they can still disagree with their murder (think "I believe that adulterers ought to be executed", vs "Someone should start killing adulterers").
    But that doesn't cover this case.

    I don't see any "threats" in the quotes, though I might be missing something. I see no statements that he will take any future course of action ("I will incite people to murder you"), but only actual incitement.

  47. a_random_guy  •  Jun 25, 2013 @10:21 am

    One must err on the side of freedom of expression. Turner said:

    "These Judges deserve to be killed. Their blood will replenish the tree of liberty."

    He does not say he is going to kill them. He does not say anyone else ought to kill them. He simply says that they are such "slime" that they "deserve" to be killed. This is a personal evaluation, not a threat.

    Life as a public servant, especially in a prominent position as a judge, is not guaranteed to be safe. If these judges cannot stand the possibility of making enemies through their judgements, they could always resign. As William says above, invoking violence in the political discourse is completely normal. Punish actions, not words.

    I would go farther: Even a direct threat "I am going to kill you" should not be punishable. It expresses a thought, not an action. The same for "Nice shop, shame if something happened to it" – this is not actionable; it's when they come back to demand money (or break your kneecaps) that you can arrest and punish them.

    Words express thoughts; we should not be in the business of punishing thought-crime. At most, a believable threat could be the basis for a restraining order and surveillance; breaking the restraining order is then an action, which is then punishable.

    Life is not perfectly safe. We should always err on the side of freedom.

  48. perlhaqr  •  Jun 25, 2013 @11:15 am

    Alpha Centauri: You know what he meant.

    How so? I certainly can't read minds, and so many people get that distinction wrong that it's perfectly reasonable to presume that he meant what he said.

    The point is that just because you personally want to be rid of the person in power, you do not have the right to assassinate him/her.

    Leaving aside the question of whether or not that is true, it's also not what Ken had asserted, which Alan objected to.

    There's no question that freedom of expression does, and ought to, include asserting the moral justification for the death of government officials that the speaker sees as tyrannical.

    "Asserting a moral justification" is not the same as "assassinating".

    Alan: A Republic is a form of Democracy – per wikipedia "Democracy is a form of government in which all eligible citizens have an equal say in the decisions that affect their lives".

    No. [Response deleted] But never mind. This is clearly another battle I'm going to lose, like that for "hacker", "anarchy", etc. Destroy the language all you wish. I give up.

  49. Pharniel  •  Jun 25, 2013 @1:06 pm

    a_random_guy – Life is not perfectly safe. We should always err on the side of freedom.

    Ok – so all those wanted posters the anti-abortion guys put together were just free speech. They're protected.

    You even advocate that continuing to use them after they were used to identify targets for violent extremists is still free speech.

    Nice little enabling there – we can't do anything about what you say, it's only until you DO IT that the government can stop it.

    Well played. It ensures that the horrible lone gunmen/bombers/stalkers go to jail but the innocent and obviously simply expressing their free speech activists have one more successful assassination under their belt.

    Because society operates best when my right to keep living is trumped by your right to be upset.

  50. James Pollock  •  Jun 25, 2013 @2:01 pm

    " it seems obvious that the founding fathers considered assassination of tyrants to be a protected civil right."
    Are we talking about the same founding fathers? The ones who criminalized even talking bad about the President? The ones who suppressed insurrections?

  51. barry  •  Jun 25, 2013 @6:01 pm

    When John Kerry tells Russia "there will be consequences" for not joining in some legally dubious rendition scheme, that looks more like a threat than a wish.

    If he did not have the capacity to organize some 'consequences' his statement might be interpreted as a belief the Kremlin would be struck by lightning for their incalcitrance, and therefore a wish_ but it's not. He possibly thinks he's still living in a time when America was looked up to for its promotion of human rights_ but he's not, and it's making him sound like a thug.

  52. Mark - Lord of the Albino Squirrels  •  Jun 25, 2013 @6:42 pm

    I am curious, (and NAL) is there a legal concept of an empty threat?

    Please do not misunderstand, I am not saying that "empty threat" would apply at all to Turner's case. Just wondering if a direct threat was made with the intent to intimidate, *but* the person making the threat was powerless to carry it out, would the same legal consequences apply? Is actual intimidation required?

  53. David Dyer-Bennet  •  Jun 25, 2013 @9:55 pm

    A direct threat of "I am going to kill you" should, at least, be admissible later to show that the killing (if the speaker actually carries it out) was pre-meditated, and hence first-degree murder.

    I do think that it's right and proper that threats be illegal, myself.

    Hey, isn't that thought crime? Making the punishment worse because you thought it up ahead of time?

  54. JWH  •  Jun 26, 2013 @3:33 am

    I would say something mean about the canned copy on the de la Riva Web site blog, but I just received a letter (by FedEx) threatening me with criminal prosecution if I do so.

  55. JWH  •  Jun 26, 2013 @3:50 am

    Crud. I commented on the wrong article. Sorry about that.

  56. Fred  •  Jun 26, 2013 @6:01 am

    I'd agree with Pooler here, to me this sounds more as incitement to murder than threat. The way it was said and phrased, with added information on how to carry such murder, would make such incitement worse than mere threat, too. The clear and present danger is real.

  57. James1  •  Jun 26, 2013 @9:48 am

    I would think his actions were grounds for a warrant to obtain more evidence (wiretaps, search of home, etc) regarding whether he actually intended to conduct said crime. The written word can have many connotations depending upon the education, regional variance, syntax, context, et cetera. It's a little easier with the written word to judge when someone is being sarcastic.

    Consider for a moment you knew nothing about this case and he had said, "I'm worried for the safety of these judges…," a similar incident led to the unfortunate death of a judge, and with information like (he cites hyperlinks to maps, photos, etc) readily accessible, this must be a real concern of judges these days. Would he be making a threat?

    As for the quoting of Jefferson, I laughed given Jefferson is well known to have fled when British troops approached one of his properties. Now, the argument about the 2nd Amendment above is a little more complex than folks make it out to be. What I find interesting is the number of people with legal backgrounds here whom simply read the amendment as is to render judgment. The placement of commas makes a significant difference and they have changed based on which Bill of Rights version you're reading. I tend to look directly at the LOC's original image, which indicates one commas separating two separate clauses (http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=144). People want to cojoin the clauses assuming they're linked, but the use of the semicolon in the 1st and 3rd Amendments indicate cojoined thoughts. With all of that said, it's still an amendment and any amendment can be removed.

  58. James1  •  Jun 26, 2013 @9:48 am

    *easier with the spoken word

  59. Manatee  •  Jun 26, 2013 @10:43 am

    En Passant, can you please explain to me how the crimes of incitement and making threats are mutually exclusive? I am completely ignorant of that area of law, and I'm afraid of what the Westlaw bill will be if I try to properly educate myself on the subject.

  60. AlphaCentauri  •  Jun 26, 2013 @6:17 pm

    If the federal government compiles a list of all the people who have purchased firearms and posts it on a public website where burglars could see it so they might come properly prepared, perhaps Mr. Turner could tell us if that is an incitement or a threat.

  61. En Passant  •  Jun 27, 2013 @2:46 am

    Manatee wrote Jun 26, 2013 @10:43 am:

    En Passant, can you please explain to me how the crimes of incitement and making threats are mutually exclusive? I am completely ignorant of that area of law, and I'm afraid of what the Westlaw bill will be if I try to properly educate myself on the subject.

    I'm also ignorant. But the dissent argument that incitement is the appropriate charge makes more sense to me.

    Philosophically I would feel more comfortable about our free speech rights if he had been charged with incitement because I subjectively don't think that his words were true threats on the facts.

    I've been subjected to true threats, and I know people who have been. Anybody who has been robbed has been subjected, for example.

    I think that a true threat should require the perpetrator to say to the victim, with apparent means to carry it out, something like "I am going to do harm to you, Mr. Victim"; not just to suggest strongly to a motley mob scattered all over the country to get their torches and pitchforks and storm the castle to harm the victim.

    So I think Turner's words were incitement at most.

    If he had command and control over an organized gang, then I would see his words more as threats. But he wasn't commanding a gang. He was speaking by a medium of mass communication. He didn't even personally know the people who heard him, nor they him.

  62. James Pollock  •  Jun 27, 2013 @11:39 am

    En Passant, does your reasoning take into account the reasoning behind criminalizing the utterance of threats? It's not that we don't want threats to be stated… it's that we don't want people to feel threatened. That suggests a subjective test rather than an objective one. Rather than allowing weaselly criminals to be able to evade the law against making threats by invoking the proper incantation. "Nice store you have there, shame if anything happened to it" isn't a threat, but it carries an unspoken message that is conveyed from speaker to listener "pay up or we'll wreck it". To the extent that the listener picks up on that unspoken message, and it shapes their psyche, the threat is real (and the extortionist WANTS that message delivered.)

    When someone else tries to reconstruct events, of course, it's not always possible to determine what the speaker actually intended, and the speaker should get the benefit of the doubt in those cases. However, when reasonable people examine the exchange and come away with the belief that the communication of a threat was intended to be implied by the speaker, and was inferred by the listener, that should be no different than if the speaker actually says the words.

    To put it another way, if the robber says "your money or your life", the threat is explicit. But if they just say "your money" and leave the rest unspoken, are you going to let them go because they haven't actually made a threat?

  63. En Passant  •  Jun 27, 2013 @2:22 pm

    James Pollock wrote Jun 27, 2013 @11:39 am:

    When someone else tries to reconstruct events, of course, it's not always possible to determine what the speaker actually intended, and the speaker should get the benefit of the doubt in those cases. However, when reasonable people examine the exchange and come away with the belief that the communication of a threat was intended to be implied by the speaker, and was inferred by the listener, that should be no different than if the speaker actually says the words.

    In this case there was no "exchange". Turner spoke his words to an essentially anonymous or unknown audience.

    This case required three jury trials before prosecutors found a jury that would find his words were a threat. That suggests to me that finding twelve "reasonable people" was more like flipping a coin until it comes up heads, then declaring "See, this coin reliably comes up heads!"

    But wandering into analogies is rarely productive. So, I'll just leave it with agreement to disagree. I agree with Pooler's dissent. Most don't.

  64. James Pollock  •  Jun 27, 2013 @3:01 pm

    "In this case there was no "exchange". Turner spoke his words to an essentially anonymous or unknown audience."

    Sure there was. Turner spoke his words, and judges reacted. I believe it's settled law that a threat the intended victim never hears is not a threat.

    "This case required three jury trials before prosecutors found a jury that would find his words were a threat."
    Put another way, Turner's defense team went 0-for-3, with two draws and a loss. Had they won just once…

  65. Batting zero  •  Jun 27, 2013 @9:44 pm

    Is there a legal distinction or qualifier to be named a "tyrant"? I'm not baiting here, but wonder if my conceptual understanding of tyranny is incomplete.
    Secondly, are government officials (elected or hired) required to give up their rights to "life, liberty, and the pursuit of happiness"? Perhaps I seek an answer from Clark following his comments about wishing death (or was he expressing predicted happiness?) upon people that work within some form of (probably only federal) government, primarily because they do work for or within the government.

  66. DanD  •  Jun 28, 2013 @1:32 pm

    I believe the decision is correct for specifically the reason quoted in the text. By citing the Lefkow killings, and implying a casual relation between his speech and the results, he crosses the line from saying "this should happen" to saying "I will make this happen".

  67. Daniel  •  Jun 30, 2013 @1:35 pm

    If Americans would quit assassinating government officials in other countries, I might have sympathy for the government officials here who feel physically threatened. Of course, I don't want any person, whether or not a government official, threatened or killed, but part of the problem is that the government is hypocritical. Like one old Supreme Court dissent says (paraphrasing), "the government is the great teacher, and if it breaks its own laws (the Constitution), it breed contempt for the law." Thus, if the government can assassinate government officials, there will be others who will say, "Well, if the government can break the law, so can I." Or, perhaps, "If the government can assassinate American citizens abroad, it seems unfair to imprison me for indirectly threatening to harm government officials in for assassination here."

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