Friday, July 12, 2013

2d Circuit upholds Hal Turner's conviction for threatening to kill federal judges

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.

1 comment:

Anonymous said...

You should go back and re-read the Appeals court decision and correct your story to be accurate. You wrote "He said he was serious, and he wrote, "I know how to get it done."

Turner didn't say that about the judges. The quote you mention was from a different posting on Turner's web site, from six months earlier, wherein he was talking about people who lost their life savings to the hoodlums who orchestrated the financial meltdown of 2007. Speaking about those hoodlums, Turner said he was going to incite revenge against _them_. The remark you quote had nothing to do with the Judges.

Turner made no threat. He expressed an opinion about what he thought the judges "deserved." Saying someone "deserves' something is an opinion, not a threat. Judge Pooler recognized this fact in her Dissent.

As for the majority of the panel, consisting of Judges Livingston and Cogan (sitting by designation), Livingston has a terrible reputation for never meeting a conviction she didn't like. As for Cogan, he was born and raised in Chicago and is thereby likely a good friend to the Judges Turner wrote about.

The fact that Cogan was designated to sit on Turner's Appeals Panel provides the appearance of impropriety. Out of all the Judges in the 2nd Circuit who could have been designated, they chose Cogan from Chicago? Blatant case-fixng if you ask me.

In the days since your posting, Turner's attorneys have filed a Petition for En Banc re-hearing. The Petition points out all the legal errors made by the majority. Then again, anyone with an ounce of common sense knows these weren't errors; they were deliberate screw-jobs to stick-it to a guy who had the nerve to tell the truth.