United States v. Turner
By Michelle Goldring – Edited by Samantha Rothberg
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United States v. Turner, No. 11-196-cr (2nd Cir. June 21, 2013)
In a 2-1 decision, the United States Court of Appeals for the Second Circuit affirmed the District Court for the Eastern District of New York’s conviction of Harold Turner, an internet radio host and blogger. Turner was convicted of “threatening to assault or murder [federal] Judges Frank Easterbrook, William Bauer, and Richard Posner” on the basis of his blog posts and commentary about a decision the three had made in a Seventh Circuit case regarding the Second Amendment. Turner, slip op. at 2–3. The Second Circuit upheld the finding that Turner’s conduct constituted “a true threat . . . [that] was unprotected by the First Amendment.” Id. at 16.
The Chicago Tribune and the New York Law Journal provide overviews of the case. The Constitutional Law Prof Blog critiques the decision for giving too little weight to the passive grammatical construction of Turner’s posts, while Jonathan Turley expresses concern that the Second Circuit “lacks [a] firm idea where to draw a line between opinion and threat.”
Turner has hosted a blog and a weekly “‘talk radio show’” expressing his political opinions since 2000. Turner, slip op. at 3–4. On June 2, 2009, he posted on his blog in response to the Seventh Circuit’s decision in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009), rev’d sub nom. McDonald v. Chicago, 130 S. Ct. 3020 (2010). Id. at 4. The case was decided by Judges Easterbrook, Bauer, and Posner. Turner’s post stated, “These Judges deserve to be killed. Their blood will replenish the tree of liberty.” Id. at 5. His posts also discussed District Court Judge Joan Lefkow, whose family members were murdered in response to one of her court decisions. Id at 5–6. He posted photographs of the judges, the room numbers for their chambers, and a map and photograph of the courthouse where the three judges worked. Id. at 6–7. He drew arrows on the photograph to indicate defense mechanisms surrounding the courthouse. Id. at 7. Turner wrote that he would later post “home addresses and maps.” Id. at 7.
Turner was found guilty in a 2010 jury trial of threatening to murder the judges with the intent to intimidate them, a violation of federal law. Id. at 13. He appealed, contending that his posts constituted political opinions under the First Amendment. Id. He argued that a reasonable person would not find his writing a “true threat,” because this “kind of talk permeates public discourse.” Id. at 16, 19. The Second Circuit rejected this and several other claims, holding that “Turner’s conduct constituted a true threat” unprotected by the First Amendment. Id. at 28.
The Second Circuit defines a “true threat” as a statement that a reasonable person familiar with the context would “interpret as a threat of injury.” Id. at 16, quoting United States v. Davila, 461 F.3d 298, 305 (2d Cir. 2006). The Court reasoned that, while Turner’s political opinions were protected, his threats to other people’s lives were not. Id. at 18. Taken in the context of Turner’s prior posts, the Court found that Turner’s writings were “readily distinguishable” from colloquial remarks and contained a true threat. Id. at 20. It placed significant weight on Turner’s references to Judge Lefkow. Id. at 21. The Court declined to do a syntactical analysis. Id. at 24. It noted that “threats—which may be prohibited, consistent with the First Amendment—need be neither explicit nor conveyed with [perfect] grammatical precision . . . .” Id. at 27.
Judge Pooler dissented, and would have held that the blog posts were “advocacy of the use of force and not a [true] threat.” Id. at 8 (Pooler, J., dissenting). Unlike the majority, Judge Pooler analyzed the syntax of Turner’s posts. She reasoned that his public writing "had the trappings of political discourse,” and used the passive voice to avoid implying an actual plan to kill the three judges. Id. However, she did not dispute that Turner’s posts may have fallen outside of First Amendment protections for other reasons. Id. at 10.
The Court’s decision highlights the difficult First Amendment issues that may arise with respect to writing on the internet. It also raises the question of whether judges are more sensitive to threatening language when it is directed toward other judges. Future cases will likely need to revisit and refine the Turner court’s analysis of what constitutes a true threat, as opposed to a menacing but ultimately harmless internet rant. As Jonathan Turley notes, the decision to affirm Turner’s conviction gives little guidance about when First Amendment protections will apply in more subtle cases against bloggers and internet writers.