Look, you cannot make threats against federal judges. Not true threats, and even fake threats won't fly, either. In this case, an inflammatory blogger went nuts when the Seventh Circuit Court of Appeals declined to incorporate the Second Amendment into the Bill of Rights, which meant that the right to bear arms was not applicable to the states. Hal Turner said the judges deserved to be killed, and his publicized their work addresses online. He said he was serious, and he wrote, "I know how to get it done." He also noted that a federal judge's family in Chicago was murdered in 2005 after he said that she was "worth of death."
The case is U.S. v. Turner, decided on June 21. Hal Turner is a well-known agitator. He was arrested for his blog posts about the Seventh Circuit's Second Amendment decision (which the Supreme Court has since repudiated in holding that that Amendment applies to all municipalities). Turner was tried and convicted in federal court in Brooklyn, and the Court of Appeals affirms, holding that this was not free speech but illegal death threats.
Turner argues that the First Amendment protects his speech. The Second Circuit (Livingston and Cogan [D.J.]) isn't buying it. Prosecutions for true threats do not violate the Constitution. In context, his public comments are not mere hyperbole. Turner's blog outlined how the judges should be killed and he explained how another federal judge's family was killed after she wrote an opinion that prompted Turner to say that she was "worthy of death." The Seventh Circuit judges were well aware of this attack on another judge's family. The Second Circuit writes that "[s]uch serious references to actual acts of violence carried out in apparent retribution for a judge's decision would clearly allow a reasonable juror to conclude that Turner's statements were a true threat." As these were not abstract threats but true threats that placed the Seventh Circuit judges in real danger, the jury had a basis to find him guilty.
Judge Pooler dissents. This is the second time in a little over a year that she dissents from a case involving threats of violence. In March 2012, she dissented in Cuff v. Valley Central School District (a case that I argued) that a 10 year-old schoolboy had a First Amendment right to state in a class assignment that he wished to "blow up the school with the teachers in it." In the Hal Turner case, Judge Pooler says that Turner's "communications were advocacy of the use of force and not a threat." His statements were made in the passive voice and did not warn of planned violence but instead an exhortation toward violence. "Although vituperative, there is no doubt that this was public political discourse." Judge Pooler suggests that Turner could have been convicted under an incitement statute, but he was not charged under it.