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Title: Murder Threats and the First Amendment (Atty Martin Garbus who has joined the Hal Turner defense team)
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URL Source: http://www.huffingtonpost.com/marti ... reats-and-the-fi_b_226983.html
Published: Jul 14, 2009
Author: Martin Garbus
Post Date: 2009-07-14 21:23:19 by christine
Keywords: None
Views: 206
Comments: 8
A very important First Amendment case, one that may soon reach the Supreme Court, is beginning its legal path. Here's how it started. On June 2, 2009, Hal Turner, a radio talk show host considered by civil rights organizations to be a white supremacist, wrote on his blog that three named Federal Appeals Court judges, who upheld a handgun ban, deserved to die. The addresses, phone numbers, and work place locations were given to the reader. "These judges deserve to die. . . ." "Observe the Constitution or die," he wrote. He never said he would kill the judges and never attempted to. When arrested, he had a shotgun, 3 handguns and 150 hollow point bullets. He claimed to have a permit for the guns, but the bullets are illegal. He was brought to court in an orange jumpsuit, handcuffs and shackles. Bail was set at $200,000 -- he is in a Newark jail. He had previously been arrested for threatening lawmakers involved in a decision relating to the Catholic Church. He has a long history of attempted incitement, but so far as I know, no one has been incited by him. Twenty-two days later, even though apparently no attempt was made to damage the lives of the three judges by Turner or anyone else, Turner was arrested. He will undoubtedly assert a First Amendment claim when he appears in court next Thursday. The federal government's criminal complaint states that the charges will range from death threats to attempted assault to attempted murder. The case has two separate elements. First, the arrest of Turner on the basis that he might kill the judges. Secondly, the arrest of Turner because he might incite others to kill. I believe his arrest and conviction on either ground is not justified. Under existing First Amendment law, he is probably protected. Should he be? Do we have to wait until a murder attempt actually gets underway? Does existing First Amendment law have to be changed, and does there have to be a law that more particularly deals with "true threats"? There are an increasing number of threats that emanate from right-wing radio, television hosts and bloggers, now presenting important First Amendment issues anew. Whichever case goes to the United States Supreme Court will undoubtedly create new law. Nothing has happened to the three judges, although we cannot assume something will not happen. For me, this is a very troublesome and difficult case. If we imagine that instead of Mr. Turner, a Vietnam or Iraq war protester says on television, or radio or his blog, that the president deserves to die. He says, "The blood of the president must flow, and his failure to protect democracy requires that he die." It would be protected. If he says it before an armed mob standing outside the White House ready to rush the guards, it would not be protected. Present First Amendment law arises mostly out of cases dealing with the threats of mob violence. In Brandenburg v. Ohio, a case decided in June 1969, exactly 40 years ago, where there was a Ku Klux Klan mob armed with shotguns, rifles and ammunition, the Court stated the test is whether the speech to the mob was incitement to imminent lawless action. The prohibition against falsely "Shouting Fire" in a crowded theatre is the ordinary person's understanding of what First Amendment law tests are. It is the popular way of describing the test that the danger must be imminent. Shouting Fire is the title of an HBO film that is presently airing (full disclosure: my daughter, Liz Garbus, directs it, and I am in it) and specifically deals with some of these issues. It dramatically shows the possibility of theatergoers being trampled after "Shouting Fire" is cried and why the speaker can be punished. The danger is clearly imminent. But Mr. Turner's case is different, and as the years go by, threats of all kinds will become more common in all media. They seem today to come from the Right. Joe the Plumber recently said Senator Dodd of Connecticut should be hanged. The Internet both permits it and encourages the maker of the "true threat" for it now permits wilder language than the regular media and it can reach significantly more people. And the threat of course gets further exposure when the news media reports an arrest. In the Hal Turner case, you have a specific threat aimed at a specific person giving specific information on how to find that person. In effect, so, too, did Joe the Plumber. It is true that once one's name is given, the Internet Googler can probably have gotten the names and addresses of those being threatened (maybe not as easy with judges) but Turner's placing it there makes it easier for a potential killer who is encouraged by having this extra information and endorsement. But Mr. Turner (and Joe the Plumber) are part of the political dialogue of the country. Turner is not a private person saying that another private person should be killed, where the test must be different. We presume Mr. Turner has a constituency that may or may not act on his threats. It is also true that the potential killer may ask if it's so important for the judge to die, why didn't Mr. Turner do it or try and arrange it. It may be true that even before Mr. Turner posted the information, a number of other people may have had the same thoughts. But Mr. Turner's language may push some people over the edge. Some scholars are seeking to create a new test for cases such as Mr. Turner's. They are trying to create a new way of approaching the particularized true threat law. They might conclude that it requires both a subjective and objective test. The threat would need to be very fact specific. Did he specifically intend that the person be killed, did he have reasonable belief that it would lead to a killing, and was his belief reasonable that the person would be killed? Mr. Turner might fail that test. I reject this approach. I reject any test that minimizes the concept of "imminent" as a necessity in order to avoid the First Amendment. I find it a very troubling and difficult case. A legal truism is that bad cases make bad law. The exact test of what is and what is not a true threat will certainly be developed more carefully in the next few years. Nonetheless, I believe even if the facts alleged against Turner are true, the First Amendment should be available as a defense.
Poster Comment: First Amendment Attorney in US backs Hal Turner Martin Garbus, one of the country's top First Amendment attorneys, has joined Hal Turner's Legal Defense Team. He is joining Michael Orozco of Bailey & Orozco, LLC. Together, Mr. Orozco and Mr. Garbus will make an unbeatable team. We have every confidence that Hal will prevail.
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#1. To: christine (#0)
As fear mounts among the ruling elite, the oppression of the masses rises in tandem.
Interesting quote.
Law Enforcement Against Prohibition
Offering a fascinating perspective on the evolution of the concept of free speech throughout the nation's history, SHOUTING FIRE: STORIES FROM THE EDGE OF FREE SPEECH examines the balancing act between protecting civil liberties and national security in a post-9/11 world, asking whether all speech is equally free. Garbus' primary tour guide in navigating this perilous landscape is her father, noted First Amendment attorney Martin Garbus, who applauds "the idea that you can have a country where anybody can think anything, say anything, create anything," calling it "a miracle." The documentary looks into his own experiences as a First Amendment lawyer, including the Pentagon Papers case and his defense of a neo-Nazi group's right to protest.
I quit threatening a long time ago. I'm just keeping my trigger finger loose these days. Breathe...exhale...squeeze !
HARTFORD, Conn. - The case of a New Jersey blogger accused of encouraging violence against Connecticut legislators and a state ethics official has been transferred to a division of state court that handles more serious matters. Harold "Hal" Turner of North Bergen, N.J., did not appear in Hartford Superior Court on Tuesday. His attorney, Matthew Potter, says his client remains in federal custody. The Internet radio host has also been accused of using his Web site to threaten three federal judges in Chicago. Potter says it's uncertain whether Turner will be able to attend a July 28 hearing in Connecticut. Turner has not yet made a plea. Turner, angry over a bill to change how the finances of Roman Catholic parishes are handled, urged his blog readers "to take up arms."
Who was injured? Who is the complainant? The state? Hal needs to subpoena the state and cross examine it.
Good heacvens. It is WHO WAS OFFENDED that brought the action. We cannot OFFEND any person in the system can we????
Nope. A reading of Thomas Jefferson could bring about charges according to the article.
#2. To: christine, rotara (#0)
(Edited)
There are an increasing number of threats that emanate from right-wing radio, television hosts and bloggers
#3. To: christine (#0)
I've seen this HBO special, it's excellent. I wish Turner well. Whether some realize it or not, they're nibbling away on out 1st and a victory here would be welcome.
SHOUTING FIRE: STORIES FROM THE EDGE OF FREE SPEECH examines the case of Ward Churchill, a tenured professor of Ethnic Studies at the University of Colorado, who was fired after writing that U.S. foreign policy abuses were a partial cause of the 9/11 attacks. Dismissed for research misconduct, Churchill later won a lawsuit against the university for unlawful termination of employment.
Liz Garbus also examines the story of Yemani-American Debbie Almontaser, a veteran of the New York City public school system and founding principal of Khalil Gibran International Academy, the city's first dual-language Arabic-English public school. Almontaser claims she was forced to resign from her job in 2007 after she set off a firestorm by citing the literal definition of the word "Intifada" in an interview with the New York Post. After she left, the Academy opened with a temporary principal who did not speak Arabic. Alleging a witch hunt, Almontaser has filed a lawsuit claiming her First Amendment rights were violated.
The documentary also considers the case of Chase Harper, who was suspended from Poway High School in San Diego for wearing a T-shirt that read "Homosexuality Is Shameful" during a gay and lesbian awareness event. Advocates for Poway High argue that they have the right to censor speech that would disrupt the educational experience of other students.
Finally, Garbus looks at Ruth Benn and Ed Hedemann, who were arrested and detained along with other protesters during a nonviolent demonstration at the 2004 Republican National Convention in New York City. In the process of their defense, lawyers unearthed evidence that their organization and other peaceful groups had been subject to extensive surveillance by the NYC Police Dept.
Others interviewed in SHOUTING FIRE: STORIES FROM THE EDGE OF FREE SPEECH include: Floyd Abrams, a prominent First Amendment attorney who defended the New York Times, among others, in the Pentagon Papers case; David Horowitz, author of "The Professors: The 101 Most Dangerous Academics in America"; Eric Foner, a Columbia professor who is on Horowitz's list, and the author of "The Story of American Freedom"; Donna Lieberman, executive director, New York Civil Liberties Union; Daniel Pipes, founder of the Middle East Forum; the Hon. Richard Posner, U.S. Court of Appeals Judge for the 7th Circuit and author of "The Constitution Is Not a Suicide Pact"; Kenneth Starr, First Amendment scholar and former special prosecutor during the Clinton presidency; and Josh Wolf, a client of Martin Garbus' and a blogger and journalist who served six months in jail for refusing to turn over videotapes of a San Francisco protest.
Liz Garbus co-founded Moxie Firecracker, an independent documentary production company, with Rory Kennedy (one of SHOUTING FIRE's producers) in 1998. Garbus' directorial credits include "The Farm: Angola, USA," which was nominated for an Oscar® and won two Emmys® and the Sundance Grand Jury Prize; "The Nazi Officer's Wife"; and the HBO documentaries "The Execution of Wanda Jean" and "Xiara's Song." In 2006, Garbus and Kennedy executive produced the Oscar®-nominated "Street Fight"; their other HBO credits include "Ghosts of Abu Ghraib" (Emmy® for Outstanding Non- Fiction Special) and "Coma." Garbus also produced two segments for HBO's "The Addiction Project."
SHOUTING FIRE: STORIES FROM THE EDGE OF FREE SPEECH was directed and produced by Liz Garbus; produced by Rory Kennedy and Jed Rothstein; edited and co-produced by Karen K.H. Sim; cinematography by Tom Hurwitz. For HBO: senior producer, Nancy Abraham; executive producer, Sheila Nevins.
#4. To: IndieTX (#2)
"If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.”—Samuel Adams 
#5. To: Hal Turner update (#4)
#6. To: christine (#5)
Turner, angry over a bill to change how the finances of Roman Catholic parishes are handled, urged his blog readers "to take up arms."
#7. To: Jethro Tull (#6)
Who was injured? Who is the complainant?
#8. To: Cynicom (#7)
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