When Blog Posts Cross From Free Speech to Criminal Threats

More and more people are turning to the blogosphere to permanently memorialize their inner thoughts, opinions, and commentary on anything and everything. Many follow other people's blogs and post comments. Certainly, there are a countless valuable blogs out there, and even some comments can be informative. However, if you have put your toe in the proverbial water that is the world of online discourse, no doubt you have encountered blogs or comments that lack a certain civility, to say the least.

When does that lack of civility cross over to criminal liability?

On June 21, 2013, the Second Circuit Court of Appeals addressed that very question. The Court upheld the conviction of a self-identified "talk-show radio host," Harold Turner, who posted a blog declaring that three Seventh Circuit judges deserved to die for their decision that the Second Amendment did not apply to the states. That case, National Rifle Association of America v. Chicago, from 2009, upheld the ban on handguns in Chicago, an outcome that was later reversed in 2010, by the holding of McDonald v. Chicago.

According to the opinion, the blog post contained detailed statements about Turner's contempt for the judge's decision and the judicial process. At one point in the lengthy statement, he specifically threatened the judges, writing: "Their blood will replenish the tree of liberty." A recitation of Turner's posting is quoted at length in the Court's opinion.

He also posted the judges' photographs, room numbers of the judges' chamber, a photograph and map of the courthouse's location, and 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 convicted of threatening to assault or murder three federal judges.

On appeal, the Second Circuit rejected Turner's argument that his statements were mere political hyperbole, did not amount to a threat of violence, and was constitutionally protected speech.

"True Threat" Test

Judge Livingston, writing for the majority, said that the test for whether conduct amounts to a true threat is an objective one, that is, whether an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury. Statutory prohibitions that criminalize making true threats, even if the speaker has no intent to carry them out, is consistent with the First Amendment, she wrote.

No Constitutional Protection for "Doing Something More" Than Criticism

The Court found that Turner would be constitutionally entitled to "condemn" or "disparage" the Seventh Circuit for its opinion. "Debate on public issues should be uninhibited, robust, and wide open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

However, significantly, what Turner wrote was far beyond just criticism. "He was convicted of doing something more--of threatening the lives of three judges with the intent".

The Court found that the evidence was more than sufficient for a jury to conclude that Turner's statements were not just "political hyperbole," as he claimed, but were violent threats against the judges' lives.

Permeating the Public Discourse

Turner argued that no reasonable person could have interpreted his statements as a threat because this "kind of talk permeates public discourse." The Court quickly dispensed with this reasoning, finding that if Turner could produce other such similar statements, they too would be beyond the protection of the First Amendment. The "everybody else is doing it" reason did not hold up, though it is not surprising that he made the argument, given statements that are made every day in political debate.

"The full context of Turner's remarks reveals a gravity readily distinguishable from mere hyperbole or common public discourse," wrote Livingston. The Court looked to the specificity of his statements, his reference to the killing of another federal judge's family, and the reasonable implicit meaning of his statements, and ultimately concluded that his conduct constituted a true threat for First Amendment purposes.

Judge Pooler dissented, concluding that Turner's statements were not a true threat for First Amendment purposes. Pooler found that the statements were advocacy of the use of force, and not a true threat. In so finding, she reasoned that the statements were made in public and had the "trappings of political discourse."

The majority rejected this reasoning, stating: "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."

Pooler did stop short of finding that the statements were indeed constitutionally protected, but instead found that they should be analyzed under the Brandenburg line of cases to determine whether the speech was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.

Implications

No doubt, online posting has raised the stakes of what constitutes constitutionally protected speech, and the ramifications that may result. As Judge Pooler points out in her dissent, "[i]t is certainly true the Internet has changed the 'geographical boundaries' of speech." Online posts are easily republished and can be widely disseminated, thus reaching far beyond any limited audience. Moreover, the level of civil discourse (or lack thereof) that currently pervades some of the blogosphere did not make Turner's statements protected speech, and his case serves as a stark reminder that there are consequences for what gets posted on the Internet. Technology may evolve, but laws will still apply.