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True Threat or Political Speech? 2nd Circuit Rules on Free Speech

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By Gabriella Khorasanee, JD on June 27, 2013 10:01 AM

Let's say a blogger doesn't agree with your political views and writes a blog post saying you "deserve to be killed." Not great news, but the First Amendment protects political speech, right?

What if the blogger takes it a step further and also shares your photo, your work address (along with suite number) and photos of your workplace? Threatened yet?

Let's say the blogger also references your colleague's family's murders that occurred years ago because of differing political opinions? Still not threatened?

In United States of America v. Turner, the Second Circuit ruled on Monday that these statements were a "true threat" as directed to Seventh Circuit Judges Easterbrook, Posner and Bauer by blogger Harold Turner. The disgruntled blogger didn't agree with the judges' opinions in National Rifle Association of America v. Chicago (later reversed in McDonald v. City of Chicago), where they held that the Second Amendment didn't apply to municipalities and states.

Political Hyperbole or True Threat of Violence?

The exact text from Turner's blog post reads:

If they are allowed to get away with this by surviving, other Judges will act the same way. These Judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die. ... [the Judges have not] faced REAL free men willing to walk up to them and kill them for their defiance and disobedience ... [and their ruling is] so sleazy and cunning as to deserve the ultimate response ... [then they] deserve to be killed.

Sufficient Evidence of a True Threat of Violence?

The question on appeal centered on whether there was sufficient evidence of a true threat of violence to support the jury's verdict. In concluding that there was sufficient evidence to support, the Second Circuit relied on two main points.

First, the references to the murders of a lower court judge's mother and husband as a result of her ruling, together with Turner's statement ("Apparently, the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed."), were sufficient for a jury to find a true threat.

Second, the use of the passive voice was not enough in this context, namely where the prior murders were mentioned, along with the photos and addresses of Judges Easterbrook, Posner and Bauer. A statement is no less threatening merely because it was phrased in the passive voice, the Second Circuit held.

When Is a Blog Post a True Threat?

With the popularity of blogging and social media, anyone can be a political commentator. While the First Amendment provides broad protections for political speech, where acts of violence are concerned, would-be commentators should take note of the lessons in the Turner case. General statements of hypothetical violence may well be protected, but if a blogger takes it a step further and references the same causal nature of actual violence along with the personal information of the would-be victims, they may find their speech unprotected by the First Amendment.

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