As published in the New York Law Journal
Friday, April 2, 2010
Expert Analysis
COMMUNICATION AND MEDIA LAW
Judge Posner, Patrick Fitzgerald
Lose Twice In A Row
By James C. Goodale
For a second time, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois, have lost a First Amendment Internet case of some import.
Shock Jock blogger Hal Turner allegedly threatened Seventh Circuit Judges Posner, Frank Easterbrook and William Bauer. Mr. Turner blogged that they “deserved to be killed.” The case ended with a deadlocked jury last month in Brooklyn. It was the second time a jury had deadlocked.
Mr. Fitzgerald was responsible for the prosecution. Judge Posner was effectively the complaining witness along with the other two judges.
The Brooklyn court has scheduled the case to be heard again on April 12. Presumably, Mr. Fitzgerald will try the case a third time.
It may not be fair to lump Judge Posner et al. with Mr. Fitzgerald. It is a fair surmise, however, that if Judge Posner and the other two federal judges told him not to prosecute, he probably would not.
Neither Judge Posner nor Mr. Fitzgerald are known for their love of the First Amendment in so far as it applies to the press and, particularly, as it applies to reporters. Mr. Fitzgerald, as you may remember, was the prosecutor who jailed Judith Miller although, arguably, he did not need her testimony in the case. (See “Was Judy Miller’s Trip To Jail Necessary?,” NYLJ, April 6, 2007)
Judge Posner several years ago, wrote a decision in McKevitt v. Palasch saying reporters had no First Amendment right to protect sources. His decision was influential in persuading federal Judge Thomas F. Hogan in jailing Ms. Miller.
Another twist is that Judge Posner has before him a case involving threats, United States v. White, which raises the same First Amendment issues as the Turner case. He was asked to recuse himself in White but he refused.
Mr. Turner is a notorious conservative blogger who spews out hate on his blog. He was incensed when Judges Posner, Easterbrook and Bauer upheld local gun control.
He said the judges deserved to be killed and posted a picture of the Seventh Circuit courthouse. He also referred to the U.S. District Judge Joan Lefkow, whose husband and mother had been killed by Nazi sympathizers in their home in Chicago. The murder took place after her address was posted on the Net.
Mr. Turner had been initially jailed for four months for not posting bail. He has said he will file for bankruptcy because he has exhausted his resources paying lawyers.
Chicago prosecutors enjoined his Web site. They have charged him with threatening to assault and murder three federal judges, which carries a maximum penalty of a 10-year prison term and a $250,000 fine.
The trial was moved to Brooklyn. A jury in December 2009 split nine to three for acquittal. In March, a second jury also refused to convict.
No one wants to jump to the defense of Mr. Turner because he is scurrilous and his blogs are outrageous. But since threats on the Internet are speech, they are protected by the First Amendment unless they truly threaten targets of that speech.
The hard question is, how do you distinguish between a “true” threat and one that is not. It would seem reasonable that a “true” threat requires that the speaker intends to put someone in fear and that the listener reasonably believes the speaker is in danger.
The courts, however, are in a state of confusion as to how to go about articulating what is required to make speech criminal. Some courts only require that the listener reasonably believes that his/her safety is threatened, others only that the speaker intends to threaten.
In Mr. Turner’s case the application of these tests is complicated by the fact that the FBI was paying him to be an undercover agent.
Mr. Turner testified the FBI effectively urged him to make the statements he made to gather intelligence on white supremacist organizations. Further, according to Mr. Turner, the FBI sat him down and explained the guidelines for statements that are “true” threats and those which were not.
Mr. Turner, acting on this advice, obligingly went forward and made the threats thinking they were not “true” threats. Therefore, if it is required to show the speaker intended to make “true” threats, Mr. Turner certainly did not.
He was, arguably, only doing what the FBI told him to do. On the other hand, if all that is required is to show that the judges felt threatened in a reasonable manner regardless of Mr. Turner’s motivation, then perhaps Mr. Turner’s threats are “true” threats.
That is why Judges Posner et al. were necessary witnesses at the trial in Brooklyn. They testified that they felt threatened. They did not testify in the first trial.
Most First Amendment scholars prefer application of the test which requires showing the intent of the speaker. Others say only that the speaker meant to say what he said and his intent may not be that relevant.
All of this apparently made no difference to the juries that heard this case. Both apparently reached the same conclusion that Mr. Turner was not acting on his own and thus did not intend all the horrible things he said on his blog.
One would have thought the better part of valor would be for Mr. Fitzgerald to drop this case. As is known, however, from the Miller case, he is tenacious; particularly, when it comes to media cases, of which this is one.
On the other hand, if he can win this case despite Mr. Turner’s state of mind confused by FBI instructions, that would be a blow to the First Amendment. It would mean the fact of intent, pushed by First Amendment scholars, would not be relevant and prosecutors could obtain more convictions for speech crimes.
It may also be the better part of valor for Judge Posner to recuse himself in White. The same First Amendment issues are sure to surface in that case. It’s time for Mr. Posner et al. and Mr. Fitzgerald to depart, before they lose a third time.
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JAMES C. GOODALE is the former vice chairman of The New York Times and producer/host of the television program “Digital Age.”