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June 25, 2009

Testing the Limits of the First Amendment

White supremacist blogger and radio host Hal Turner was arrested by the FBI today on charges that he threatened to kill three Seventh Circuit judges (Posner, Easterbrook, and Bauer, FYI) after they ruled that the Second Amendment does not apply against state and local governments.

Turner had posted on his blog:

"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.”

“These judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.”

He also said that the Seventh Circuit judges did not "get the hint" after the 2005 killings of the mother and husband of District Court Judge Joan Lefkow and that "it appears another lesson is needed."

He then posted the judges' pictures, phone numbers, work addresses, and courtroom numbers as well as a map of the courthouse with the "anti-truck-bomb" pylons highlighted.

Now, Turner is a nutcase and a racist and he has a lengthy history of this kind of thing. A criminal case of inciting violence against lawmakers is pending in Connecticut. He also posted the work addresses of judges in white separatist Matthew Hale's case. So I'm not sympathetic to him and the world would probably be a better place if he slipped and broke his noggin open (just saying).

But that doesn't mean that he "threatened to assault and murder three United States judges" as alleged by the FBI. It seems that it boils down to the meaning of "deserve." When Turner says they deserve to be killed, is that a threat? Does it become a threat in conjunction with posting the judges' work addresses and photos? Note, the FBI does not allege that Turner (or anyone else) took any affirmative act to carry out the threat aside from Turner's blogging.

The First Amendment implications are clear. Threats are not protected speech. But was this a threat? Here's what the magistrate judge had to work with (PDF).

Your thoughts?

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posted by Gabriel Malor at 02:17 PM

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