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.
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."