pageok
pageok
pageok
First Amendment Protects Disclosure of Name and Address of Juror, Together With Condemnation of Juror, on Racist Web Site:

That's the holding of U.S. v. White (N.D. Ill.), decided yesterday, which dismissed White's indictment for allegedly soliciting criminal actions against the juror (long after the trial was completed). An excerpt:

In 2003, a jury in the Northern District of Illinois convicted Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale's organization....

On October 21, 2008, the government indicted defendant, alleging that on his website, Overthrow.com, he solicited or otherwise endeavored to persuade another person to harm "Juror A," the Hale jury foreperson. Specifically, the government alleged that on or about September 11, 2008, defendant displayed on the front page of his website a post entitled, "The Juror Who Convicted Matt Hale." The post read:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].

The post did not expressly advocate that Juror A be harmed.

As "circumstances strongly corroborative of [defendant's] intent" that another person harm Juror A, the indictment alleged that when he posted the above statements, defendant was aware that white supremacists, Overthrow.com's target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals and others perceived as acting contrary to the interests of the white race. The indictment also alleged that before he posted the above statements, defendant displayed on Overthrow.com other posts, some of which were still available, purporting to contain the home addresses of and/or other identifying information about individuals who had been criticized on the website, and that in certain of these posts, defendant expressed a desire that the individuals be harmed.

To see more of the facts, and the court's analysis, please read the opinion. For now, let me just quote the discussion of NAACP v. Claiborne Hardware (1982):

In Claiborne Hardware, the Supreme Court considered a boycott by black citizens of white-owned businesses in Claiborne County, Mississippi. As is pertinent here, the boycott involved stationing individuals, known as "enforcers," "deacons" or "black hats," near white-owned businesses for the purpose of reporting blacks who violated the boycott. Boycott supporters read the names of such persons at meetings of the Claiborne County NAACP and at church services and published them in a mimeographed paper entitled the "Black Times." Such persons "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites." Some also became targets of violence.

While acknowledging that persons who committed acts of violence could be held liable, the Supreme Court held that others involved in the boycott, including the leader, Charles Evers, could not be. This was so despite Evers's statements that "blacks who traded with white merchants would be answerable to him," that "any 'uncle toms' who broke the boycott would 'have their necks broken' by their own people," that if "we catch any of you going in any of them racist stores, we're gonna break your damn neck," that "boycott violators would be 'disciplined' by their own people" and "that the Sheriff could not sleep with boycott violators at night."

Regarding this aspect of the boycott, the Court noted that speech does not lose its protected character "simply because it may embarrass others or coerce them into action." Even when the speech arguably contains threats of violence, "in the context of constitutionally protected activity ... 'precision of regulation' is demanded." The Court thus held that, although the "black hats" who engaged in violence could be punished, there "is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others." Finally, the Court held that Evers could not be held liable for his statements about the boycott violators:

While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.

It is clear that "fighting words" --- those that provoke immediate violence --- are not protected by the First Amendment. Similarly, words that create an immediate panic are not entitled to constitutional protection. This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In Brandenburg v. Ohio, we reversed the conviction of a Ku Klux Klan leader for threatening "revengeance" if the "suppression" of the white race continued; we relied on "the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg.... Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open."

In the present case, defendant also disclosed the identity of a person, Juror A, with whom he disagreed on a matter of social importance, i.e. the conviction of Hale in a high profile criminal case. Although he did so under potentially intimidating circumstances, as Claiborne Hardware holds, even when the circumstances surrounding a disclosure are intimidating, the speech may not be punished consistent with the First Amendment unless it is directed to inciting imminent lawless action and likely to produce such action. Defendant's speech lacked both of these characteristics.

You might also want to read the rest of the analysis, and in particular pp. 19-34, which discuss other cases, including the Nuremberg Files case. (For my views on the Nuremberg Files case, see this op-ed supporting the panel decision that was later reversed by a 6-5 vote of a Ninth Circuit en banc panel.) This is a very interesting, important, and difficult category of First Amendment questions, and the court's opinion strikes me as a must-read for anyone interested in this.

Thanks to Deborah Lauter, Director for Civil Rights of the Anti-Defamation League, for the pointer to the decision.

UPDATE: From p. 35 of the opinion: "[T]he fact that I might regard as noble the struggle of Mississippi blacks for equal treatment, and defendant's views as reprehensible, is irrelevant to the constitutional analysis. Nevertheless, there is irony in the fact that defendant's right to spread a message of white supremacy has, in large part, been secured by the efforts of African-Americans to obtain civil rights."

Railroad Gin:
A juror is in a somewhat unique situation inasmuch as he is compelled by the government to sit as a juror. A store patron (Clairbore) or an abortionist (Nuremberg Files) has the option of staying out of the controversy without fear of government reprisal. Also, the sixth and seventh amendment rights to a jury trial implicity require jurors who are free of prejudice or bias including that caused by intimidation. Arguably the government interests in censoring the speech are a little more compelling in this situation.
7.22.2009 12:54pm
SuperSkeptic (mail):
Again, this "fighting words" category needs to go. It's okay to threaten violence if your listeners do not follow through - thats protected. But, if they actually do commit any acts (because your speech was effective) then it's not protected. Which means effective radical speech is prohibited but uneffective radical speech is not. Sounds a bit too flexible for a post hoc rationalization of a prosecution to me...

Prof. Volokh, I know you support the exception, but I cannot find a logically consistent basis to do so...
7.22.2009 12:57pm
Steve:
Difficult case, but sounds like it has to be the right result. By the way, did Prof. Volokh really neglect to mention that he is extensively cited in the District Court's decision??? Perhaps he failed to notice.
7.22.2009 12:57pm
SuperSkeptic (mail):
ineffecitve?* long day already...
7.22.2009 1:00pm
deepthought:
This problem can be resolved through the use of anonomyous juries. An even better solution, and to avoid a defendant's supporters from following jurors home, would be to have the jury sit at a separate location and view the proceedings over closed-circuit television. Monitors can be placed for the defendant, prosecutor, and judge to view the jury.
7.22.2009 1:00pm
Bored Lawyer:
Does anything in the opinion implicate the power of the Court to order the identity of jurors be maintained as confidential? Can violation of such an order be punished as contempt of Court notwithstanding the 1st Amendment?
7.22.2009 1:06pm
zuch (mail) (www):
Prof. Volokh:

How would this apply to the animal rights activists currently under indictment in California, in your opinion?

Cheers,
7.22.2009 1:17pm
Clayton E. Cramer (mail) (www):

This problem can be resolved through the use of anonomyous juries. An even better solution, and to avoid a defendant's supporters from following jurors home, would be to have the jury sit at a separate location and view the proceedings over closed-circuit television. Monitors can be placed for the defendant, prosecutor, and judge to view the jury.
I actually started writing a dystopian novel in which this takes place, because of organized crime intimidation of juries. But how do you know that those juries are actually at a separate location? And being anonymous, how do you know that they aren't government agents?
7.22.2009 1:18pm
Angus:
I'll just make sure I'm never a juror in any case involving any type of criminal organization. Not that hard to get out of it if you try. A few pro-defense or pro-prosecution statements will get you challenged.
7.22.2009 1:22pm
Ken Arromdee:
I think the right answer (which no court will make, of course), is "NAACP v. Claiborne was decided that way because the law was being twisted in order to support civil rights. Twisting a law for a good cause is a bad idea because of the precedent it sets, and we should not let this twisting go any farther".
7.22.2009 1:26pm
troll_dc2 (mail):

I think the right answer (which no court will make, of course), is "NAACP v. Claiborne was decided that way because the law was being twisted in order to support civil rights. Twisting a law for a good cause is a bad idea because of the precedent it sets, and we should not let this twisting go any farther".



I need to think about this some more, but I am finding myself agreeing with you. The real problem that I have with that decision is that it seemed to approve of intimidation of people who did not agree with the intimidators and wanted to shop at the boycotted stores. Intimidation affects the freedom of the victims. If you dress up your intimidation in First Amendment clothes, you can get away with just about anything, and since you are not part of the government, your victims have no remedy. Can that really be the law?
7.22.2009 1:37pm
Melancton Smith:
I'm glad that cat's anonymity has been protected! Go FiFI!

Ooops, I just outed FiFi!
7.22.2009 1:39pm
Sk (mail):
While the line between acceptable speech and unacceptable speech may be difficult to draw, I don't believe there should be no line. There is simply no principled reason to believe so.

If there is no line, then we are in the situation where it is illegal to advocate robbing someone (various laws against conspiracy would make the planning of a theft, or a heist, illegal), illegal to advocate buying stocks with certain types of (insider) information, but entirely protected to advocate breaking someone's neck!

The line between planning a murder or advocating a murder, and spouting off about a murder may be difficult to draw, but it exists nonetheless.

Yet another ruling by wealthy people living in gated communities, who don't really have to endure the consequences of their choices.

Sk
7.22.2009 1:42pm
martinned (mail) (www):

If you dress up your intimidation in First Amendment clothes, you can get away with just about anything, and since you are not part of the government, your victims have no remedy. Can that really be the law?

In the US? Sure... Free and frank exchange of ideas, etc.

The critical difference here is that, Angus' suggestions notwithstanding, being a juror is not optional. It follows from that that the government and/or the court are entitled to protect them more than they'd otherwise be allowed to.

(Formally speaking, the clash is between the first amendment rights of the accused, the accused's right to a jury trial and the jurors' right to life.)
7.22.2009 1:43pm
Realisto:
A "realist" might say this fact determined the outcome:

fn8. Although I base this decision on the allegations contained in the indictment, the parties
advise that no actual harm befell Juror A; he/she simply received text messages from unknown
sources.

Also, Sk, I think your wrong re ruling and consequences, since this was a case connected with the brutal murder of a Judge's family.
7.22.2009 1:45pm
David M. Nieporent (www):
While the line between acceptable speech and unacceptable speech may be difficult to draw, I don't believe there should be no line.
I believe the phrase you're looking for is "incitement to imminent lawless action."
7.22.2009 1:50pm
AF:
In NAACP did they publish home addresses? I don't see the First Amendment interest in permitting people to publish the home addresses of non-public figures.
7.22.2009 1:51pm
martinned (mail) (www):

I believe the phrase you're looking for is "incitement to imminent lawless action."

That's certainly a start. Whether that is the correct criterion in this case, though, I'm not sure. Given the precariousness of the jurors' position, it might be appropriate to criminalise speech whose effect is not "imminent" and/or which is not strictly speaking "incitement". As long as it is reasonable to infer from the circumstances that causing harm to the juror was the intended effect, it's OK with me.
7.22.2009 1:56pm
Monty:
Would people look at it differently if the defendant was a minority convicted by an all white jury of a crime against a white on weak evidence? And instead the website was accusing the jurors of racism. It must be treated the same under the first amendment, but would we still be as eager to object?

Even if a jury is never anwserable for thier actions to the law, that doesn't mean they shouldn't be held to anwser to society. Its true that many jurors would not serve but for the compulsion, but regardless, they are serving a critical role in our justice system. That alone makes them worthy of attention.
7.22.2009 2:00pm
martinned (mail) (www):

Would people look at it differently if the defendant was a minority convicted by an all white jury of a crime against a white on weak evidence? And instead the website was accusing the jurors of racism. It must be treated the same under the first amendment, but would we still be as eager to object?

That hypothetical is not the same as the one discussed in the original post.

defendant was aware that white supremacists, Overthrow.com's target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals and others perceived as acting contrary to the interests of the white race.
7.22.2009 2:05pm
BGates:
it cannot be denied that references to the possibility that necks would be broken...implicitly conveyed a sterner message.

I've clearly been underestimating the Court's peers at State and the UN when they talk about "conveying a stern message" to Iran &North Korea &c.
7.22.2009 2:07pm
BGates:
Suppose I were to go to one of the recently popular protests and suggest that if "we catch any of you Congressmen voting for any of Obama's anti-American bills, we're gonna break your damn neck." Protected speech? Really? What if I say it in front of a crowd of people that include some Congressmen, as Evers made his supposedly-not-quite-a-threat to an audience that included people he wanted to not-quite-threaten?
7.22.2009 2:16pm
ShelbyC:

As long as it is reasonable to infer from the circumstances that causing harm to the juror was the intended effect, it's OK with me.



That's a pretty low standard. What if it had said, "The jury forman is the one to blame for getting NH convicted?" Such an inference might be reasonable under those circumstances, too.
7.22.2009 2:19pm
einhverfr (mail) (www):
It seems to me that, under the Brandenburg precedent, the key question is that of imminence of the threat. Certainly it might have been intended to solicit violence against the juror but was it both intended and likely to cause imminent violence or other lawless action?

It seems to me that the court was right to hold that this was protected. After all, saying "Someone 'otta kill Matt" even to an audience that might want to do so is no different than preaching the eventual necessity of violent overthrow against the government in US v. Yates. An abstract appeal to eventual violence is protected, while a specific threat is not.
7.22.2009 2:20pm
einhverfr (mail) (www):
BGates:

Read Brandenburg v. Ohio. Pay close attention to footnote 1 in the majority opinion.

Then go read Yates v. United States.

It seems that abstract appeals to violence, even against elected officials is protected while specific and imminent threats are not. One can shout at a KKK ralley, "Kill the niggers! We intend to do our part!" One cannot say "Meet me tomorrow at 10 so we can go kill niggers."
7.22.2009 2:23pm
martinned (mail) (www):

That's a pretty low standard. What if it had said, "The jury forman is the one to blame for getting NH convicted?" Such an inference might be reasonable under those circumstances, too.

Depending on when, where, to whom, etc. it was said, I'd be OK with exempting that from first amendment protection. As long as the prosecution can prove beyond a reasonable doubt that a certain result was intended, or at least that the defendant must have known that a certain result was likely to ensue, the exact words spoken/written don't matter.
7.22.2009 2:27pm
AF:
Depending on when, where, to whom, etc. it was said, I'd be OK with exempting that from first amendment protection. As long as the prosecution can prove beyond a reasonable doubt that a certain result was intended, or at least that the defendant must have known that a certain result was likely to ensue, the exact words spoken/written don't matter.

So basically you think Abrams v. United States was rightly decided.
7.22.2009 2:39pm
Realisto:

[If] the prosecution can prove beyond a reasonable doubt that a certain result was intended, or at least that the defendant must have known that a certain result was likely to ensue, the exact words spoken/written don't matter.


Really? That cannot be right. There are such things a jury bias.
7.22.2009 2:41pm
zuch (mail) (www):
martinned:
As long as it is reasonable to infer from the circumstances that causing harm to the juror was the intended effect, it's OK with me.
Actually, "causing harm" may be too constricted. Influencing or intimidating may be sufficient in this context, as U.S. Code makes such a criminal act (18 USC § 1503). While actual harm is required in one section there, there's catch-all language to cover any attempts to corruptly influence "the due administration of justice". If that is the intended result of such communications, this section might apply.

Cheers,
7.22.2009 2:45pm
martinned (mail) (www):

So basically you think Abrams v. United States was rightly decided.

I meant my statement to be limited to the case of a threat against a juror. The case you cite concerns speech that was alleged to be treasonous, or at least a violation of the Espionage Act of 1917.
7.22.2009 2:47pm
martinned (mail) (www):
@zuch: Is it possible to prosecute someone under 18 USC 1503 for something they've done after trial was already over, as was the case in the case discussed in the original post?
7.22.2009 2:48pm
AF:
The case you cite concerns speech that was alleged to be treasonous, or at least a violation of the Espionage Act of 1917.

There was also an incitement charge.
7.22.2009 2:54pm
zuch (mail) (www):
martinned:
@zuch: Is it possible to prosecute someone under 18 USC 1503 for something they've done after trial was already over, as was the case in the case discussed in the original post?
Good question. Part of § 1503 covers acts subsequent to the verdict:
(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, [...] on account of any verdict or indictment assented to by him...
But, not having Lexus/Westlaw, I can't easily look to see if there's any cases directly on point.

Cheers,
7.22.2009 2:55pm
David M. Nieporent (www):
That hypothetical is not the same as the one discussed in the original post.
Sure it is.
defendant was aware that white supremacists, Overthrow.com's target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals and others perceived as acting contrary to the interests of the white race.
People are surely aware that blacks "sometimes" commit acts of violence against non-blacks perceived as acting contrary to the interests of the black race, too.
7.22.2009 3:12pm
anon juror:

This problem can be resolved through the use of anonomyous juries. An even better solution, and to avoid a defendant's supporters from following jurors home, would be to have the jury sit at a separate location and view the proceedings over closed-circuit television. Monitors can be placed for the defendant, prosecutor, and judge to view the jury.


I was once on an anonymous jury (multi month organized crime trial, defendants w/ prior history of threats against witnesses, prosecutors, etc), so this one hits home. It didn't take too many days of trying to find alternate parking lots within range of the courthouse to realize that defeating even cursory attempts to identify the jurors would take a tremendous amount of effort. Losing a tail once is easy, according to spy novels, doing so over and over for weeks, when you must arrive and depart the same location at predictable times seems almost impossible. I imaging slipping a license plate number and a few hundred bucks to a private investigator would work, too.

I think the video option is likely to interfere with the jury doing its job; video just isn't the same as being there.

I don't have a real solution, other than what I hope is the current situation - offing a juror would get the same overwhelming law enforcement response as killing a judge or prosecutor.
7.22.2009 3:14pm
neurodoc:
einherverf: After all, saying "Someone 'otta kill Matt" even to an audience that might want to do so is no different than preaching the eventual necessity of violent overthrow against the government in US v. Yates. An abstract appeal to eventual violence is protected, while a specific threat is not.
"An abstract appeal to eventual violence"? What is the bright line distinction between a threat of "imminent" violence one of "eventual" violence, when the threat might be acted upon at any time? And what would it take to convert an "abstract" threat or "appeal to eventual violence" to a "specific threat"? Of no consequence that White provided personal details that would be of no interest except to someone intending harm to the juror, ("Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number]")? No facts would make an "abstract" threat into a "specific" one, e.g., the juror's picture, make and model of car and license plate number, office address, time leaves for work and returns from work along with route taken, etc.?

I guess I'll have to read Professor Volokh's discussion of the Nuremburg Files case to see how far this menacing business can go in the name of free speech.
7.22.2009 3:26pm
troll_dc2 (mail):
Apparently you can escape federal criminal liability for threatening a juror so long as you couch the information and appeals on your Web site in general-enough terms that it cannot be said to be an incitement to specific people to carry out specific acts, even though it is clear from the face of things that you wrote what you did with a wink. But please explain to me why you cannot be liable under state common law for threatening the juror (assuming that the language used would have encouraged a reasonable reader of the same persuasion as yours to act against the juror). This should not raise a constitutional issue, should it?
7.22.2009 3:32pm
PatHMV (mail) (www):
The stark reality is, if the government can't prosecute actions like this, threats like this, and if they become somewhat widespread, then decent people will try even harder to stay off juries than they do today. That's a significant cost to the system and, ultimately, a significant burden on our freedom (which hinges in part on normal people being willing to serve on juries). It's bad enough these days that prosecutors and defendants are allowed to ask (and the jurors compelled to answer) the most blatantly intrusive and obnoxious questions. If they can suddenly be made public spectacles and become the target of orchestrated threats of violence, what sane person wouldn't do all they could to avoid jury service? And, if seated in the jury, what sane person wouldn't decide that a vote against the prosecution posed no threat of retaliation, while a vote against the defendant posed a significant personal risk to the juror and his family?

Currently, thankfully, the number of severe whackos who would make threats like this, and have enough of a following that they posed a real risk, is fairly limited. Most violence against jurors (which doesn't happen as often as violence against witnesses) is carried out the old-fashioned way, with word spreading from one crook to another in retail, rather than wholesale, fashion. Because of this, we probably have the luxury of tolerating a rule like this. But if such violence against the system itself were ever to become widespread, we'd really need to rethink that rule.
7.22.2009 3:57pm
AF:
It seems to me that the interests of free speech and juror safety would both be served by a presumption that publishing general threats and statements of violent intentions are protected, but publishing personal information such as home addresses is not. I just don't see how printing a non-public figure's home address implicates the freedom of expression.
7.22.2009 4:04pm
David M. Nieporent (www):
But please explain to me why you cannot be liable under state common law for threatening the juror (assuming that the language used would have encouraged a reasonable reader of the same persuasion as yours to act against the juror). This should not raise a constitutional issue, should it?
You think prosecuting someone for their speech doesn't raise a constitutional issue?

Now, it's true that so-called "true threats" aren't constitutionally protected, but the threshold question of whether this is a threat still must be answered.
7.22.2009 4:12pm
Aultimer:

Monty:

Even if a jury is never anwserable for thier actions to the law, that doesn't mean they shouldn't be held to anwser to society.

Jurors should be subject to criticism by passers-by, intimates and the press, but not, as you may be suggesting, to violence.
7.22.2009 4:20pm
troll_dc2 (mail):

But please explain to me why you cannot be liable under state common law for threatening the juror (assuming that the language used would have encouraged a reasonable reader of the same persuasion as yours to act against the juror). This should not raise a constitutional issue, should it?
------
You think prosecuting someone for their speech doesn't raise a constitutional issue?



Try again. As I am sure you know, we do not have criminal common law in this country. So, obviously, I was referring to a damages lawsuit. I did not think that I had to write the words "civil lawsuit" in my comment.

So can someone be civilly liable for posting quasi-threats on the Internet against a juror that cannot constitutionally be the basis of a federal criminal action?
7.22.2009 4:32pm
Gramarye:
David M. Nieporent wrote:
Now, it's true that so-called "true threats" aren't constitutionally protected, but the threshold question of whether this is a threat still must be answered.


I think there may be also a case for extending existing law even if this technically doesn't rise to the level of a "true threat."

A true threat occurs when "the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." The defendant's conduct in the case here doesn't rise to that level because the post did not advocate that "Juror A" be harmed, and he did not communicate any intention to commit and act. Nevertheless, I think a very strong case could be made that he intended Juror A to be the target of unlawful violence. I cannot see any other motive for posting the information he posted where he posted it. I also think that the official rationale for proscribing intimidation (as a specimen of true threat) would also justify regulation of the Internet speech at issue here:

[A] prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur ... Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.


Virginia v. Black, 538 U.S. 343, 360 (2003) (internal quotations and citation omitted). I don't think using that language to reach this conduct is much of a stretch, particularly given the overwhelming public interest in preserving the integrity of juries.
7.22.2009 4:54pm
Angus:
The stark reality is, if the government can't prosecute actions like this, threats like this, and if they become somewhat widespread, then decent people will try even harder to stay off juries than they do today. That's a significant cost to the system and, ultimately, a significant burden on our freedom (which hinges in part on normal people being willing to serve on juries).

This. Definitely this. I've been called into jury duty and been happy to serve. I still will be in most cases. However, my relatively small city has had a problem with a gang moving in from a nearby large city and setting up drug labs. After reading about this case, no way will I want to serve on a jury against a gang member and potentially put myself and my family at risk of violence.
7.22.2009 5:00pm
BGates:
einhverfr, thanks for that. I guess I'm most troubled by this case, then my own hypothetical, then Brandenburg, and Yates not at all.

Do I have it right that one can't say "let's meet at 10 Main St at 9pm to murder the Presbyterians," but under Brandenburg one could say "we ought to murder the Presbyterians" and under White one could say "this Presbyterian will be at his home on 10 Main St at 9pm"?
7.22.2009 5:09pm
einhverfr (mail) (www):
Neurodoc: IANAL but this is an area of law I have spent a fair bit of time researching.

"An abstract appeal to eventual violence"? What is the bright line distinction between a threat of "imminent" violence one of "eventual" violence, when the threat might be acted upon at any time?


The line in Yates was that merely distributing literature and advocating the idea that there was a MORAL DUTY to overthrow the government by force was not sufficient to place it outside the protections of the First Amendment. I.e. I can appeal to you and try to get you to BELIEVE that killing all [whatever group] is morally necessary and good and all, but where I actually encourage you to DO something, that component itself may not be protected.

Brandenburg took this a step further, by ruling that appeals to violence in the abstract. Footnote 1 of the majority opinion includes "Kill the niggers... we intend to do our part..." The court ruled here that the purpose of the rally was to show support for the IDEA of killing black folk which was Constitutionally protected and separate from the actual action.


And what would it take to convert an "abstract" threat or "appeal to eventual violence" to a "specific threat"?


The line in Brandenburg is whether words are both intended and likely to cause "imminent lawless action." Saying "Kill the Niggers" at a KKK rally is OK. Following it up with "And show up at my house tomorrow with your guns" would not. This is in line with the distnction in Yates between advocating the idea that the government should be violently overthrown with and the act of raising an army.

In short, I would expect a practical component to be required.
7.22.2009 5:52pm
Lou Gots (mail):
Right out of a Law and Order episode--one of the hokier ones.

Look, when the First Amendment cases were announced, anyone with respect for the rule of law could see that someday shoes would be of different feet and that someday other oxen would be gored. The law bent over backwards in those days to protect the First Amendnent rights of students against the Vietnam War, or of racial boycott organizers. The rules thus derived live on to protect speech we do not now approve. Get used to it.

If we would like Tinker or Claiborne overruled or narrowed out of existence, I suggest thay we should be careful what we wish for. Someday the shoes might be back on the right feet.
7.22.2009 5:55pm
einhverfr (mail) (www):
Lou Gots:

Actually the cases that extended First Amendment right to be as strong as they are today are the hard ones: The questions of whether Communism was protected despite advocating a moral necessity to overthrow the government by force, and whether the KKK is protected when they call for genocide.

I favor very strong 1A rights, but let's not distort history.
7.22.2009 5:58pm
Patent Lawyer (mail):
It seems that the First Amendment analysis may be right, but only under section 373—why was the charge under section 373, and not section 1503?:


Whoever ... by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, ... or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, ...


Arguably it was only intimidation after the verdict, and the law may only cover intimidation pre-verdict or actual injury post-verdict. In that case, I'd urge Congress to amend section 1503 accordingly to prohibit post-verdict threats as well under the obstruction of justice statute. I notice that the court did not substantially discuss the First Amendment issue with respect to obstruction of justice-like crimes.

There's too great a threat to the jury system in this case to ignore it, or to treat it as constitutionally protected.
7.22.2009 6:04pm
Teller:
Except doesn't that statute require that the juror know of the communication. Here, the juror possibly, might not have known.
7.22.2009 6:49pm
BGates:
einhverfr, a minor point - Brandenburg has "bury" where you're quoting "kill", which makes it a bit less threatening, I think.
7.22.2009 7:32pm
Leo Marvin (mail):
Troubling but right. But troubling.

But right.
7.22.2009 9:23pm
hospis (mail):
The Court here erred from USCON, and it neglected its duty to civil and righteous citizens for cause of protecting criminal ferocious beasts. Framers of First Amendment estimated Free Speech to be a medium for disputing and disseminating ideas; framers did not estimate Speech to be a medium for inciting tribes or factions to violence, or for only injuring citizens. Hamilton and Adams did not estimate the First and Second Amendments to be instruments of dividing the populace, injecting it with hatred, and fomenting riots or insurrections or tribal warfare. Framers did not create Rights for cause of protecting "White Supremacists": these beasts by using injurious and hateful speech excite beastly instincts and thus expel Reason, the beasts advocate insurrection, and they divide the populace in this case by race. Courts have a duty to conserve peace and order for the citizenry, and thus Courts have a duty to detect and dissolve beastly "White Supremacist" gangs.
7.22.2009 10:07pm
Bob from Ohio (mail):
White is a pretty disgusting human being.

But it seems to me that he did not violate the statute in posting the juror's information. Seems like a lot of inferences on top of each other.

There is no language whatsoever that "solicits" or "otherwise endeavored to persuade". Its just a recital of factual info. No request. No plea. Not even "will no one rid me of this troublesome juror".

There has to be some "solicitation" or effort to "persuade". Some words of request, even ambiguous ones.
7.22.2009 11:30pm
Kevin Webb:
My worry is the chilling effect this ruling will have on particpation not only on juries, but other forms of assembly/speech that others disagree with. As an example, here in CA I have seen/read several instances of explicit and implicit intimidation of citizens who donated to Prop 8 (the Marriage initative). We had people's lives disrupted, threatened, and forced to resign from jobs and positions because "fair-minded" groups took data from the public political donation monitoring website and used it to identify and harass individuals who they disagreed with.

This ruling opens the floodgates for websites to be established with personal information disclosed of opponents for the purpose of intimidation, without saying as much.

One additional question: Since the ruling basically states that this is protected speech, does this ruling preclude states from passing statutes that would criminalize this activity? Could a statute be written narrowly enough that it could pass the tests on protected speech?
7.23.2009 1:17am
LarryR (mail):

"NAACP v. Claiborne was decided that way because the law was being twisted in order to support civil rights. Twisting a law for a good cause is a bad idea because of the precedent it sets, and we should not let this twisting go any farther".



I think Ken Arromdee made a good point. I doubt the NAACP v. Claiborne decision would have been the same if it had not been a racial case in the civil rights era. I doubt whether it will be reversed.

Lawyers, law professors, and judges engage in intricate analysis to fit these sorts of precedents into the rest of case law. But I think this is fruitless. Just admit that racial matters are treated differently by the courts.
7.23.2009 11:12am
Sk (mail):
"UPDATE: From p. 35 of the opinion: "[T]he fact that I might regard as noble the struggle of Mississippi blacks for equal treatment, and defendant's views as reprehensible, is irrelevant to the constitutional analysis. Nevertheless, there is irony in the fact that defendant's right to spread a message of white supremacy has, in large part, been secured by the efforts of African-Americans to obtain civil rights.""

Is this even remotely true? Is it accepted as accurate that white supremacist views were not 'spread' before the civil rights era (in fact, wouldn't the opposite be true?-isn't the point of the civil rights era to overcome prevalent white supremacist views?), or that African-American efforts to obtain civil rights directly motivated the expanded interpretation of the First Amendment (I'd place most of the credit with porno movies and anti-Vietnam flag burning, personally)?

Or did the judge just pat herself on the back (and reassure her colleagues) for having the 'right' views, and used an inaccurate reading of history to establish an 'ironic' reading of the case (irony is the hip way to make your point, these days).

Sk
7.23.2009 12:17pm
Collin:
The Court is NOT saying that harassing speech or conduct is protected. If anyone, in fact, did so, they could be prosecuted and/or sued. This loser, however, based on the matters alleged in the complint and the first amendement cannot be prosecuted for what he wrote.
7.23.2009 2:28pm
MarkField (mail):

Is it accepted as accurate ... that African-American efforts to obtain civil rights directly motivated the expanded interpretation of the First Amendment (I'd place most of the credit with porno movies and anti-Vietnam flag burning, personally)?


I'd say yes, most legal historians would make such a connection (though obviously other issues share credit, as you note). Racial issues impacted all sorts of decisions we might not ordinarily think of as affected by them (e.g., Mapp v. Ohio). The Civil Rights Movement required constant exercise of 1A rights where local governments tried to shut them down, and a lot of law got made in that context.
7.23.2009 4:12pm
Zoe E Brain (mail) (www):
Judge: Witnesses in NY hate crime trial threatened

(AP) -- Jul 15, 2009

SYRACUSE, N.Y. (AP) — A New York judge says authorities are investigating threats against prosecution witnesses in the trial of a 20-year-old Syracuse man accused in the hate crime murder of a transgendered woman.

Jurors on Wednesday heard conflicting testimony about who made an anti-gay slur before Lateisha Green was killed last November, and whether Dwight DeLee was the gunman.

Several witnesses identified DeLee as the person who used the word "faggot" before Green was shot. But other witnesses attributed the slur to others at the party.

Testimony in DeLee's trial ended Wednesday. Prosecutors say he killed Green because of anti-gay bias.

Attorneys will give their closing arguments Thursday, and the case will then go to the jury for deliberations.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

SYRACUSE, N.Y. (AP) — Two prosecution witnesses who were at a New York house party when a transgendered woman was murdered testified the man accused of the killing had directed an anti-gay slur at the victim.

Neither of the witnesses at the trial of Dwight DeLee said they saw him fire the shot that killed 22-year-old Lateisha (lah-TEE'-shuh) Green in November.

The pair testified Wednesday that DeLee called Green a "faggot."

DeLee is being tried on a hate crime murder charge. Prosecutors say he killed Green because of anti-gay bias.

If convicted of a hate crime, DeLee would face additional prison time.

On Tuesday, two prosecution witnesses who told police they saw DeLee shoot Green recanted their statements. Green's brother identified DeLee as the gunman during testimony Monday.


The threats were not deemed imminent enough.

Thursday, July 23, 2009 at 3:24 p.m.

SYRACUSE -- Syracuse Police continue to investigate a shooting on Wednesday night that left a man in critical condition.

Johnny Gaston, of Garfield Avenue, remains in the hospital with life-threatening injuries. Gaston is the father of Johnny Gaston, Jr. who testified in the Dwight DeLee trial. DeLee was convicted last week of manslaughter as a hate crime in the death of Lateisha Green.
7.26.2009 8:36am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.