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When Blog Posts Cross From Free Speech to Criminal Threats

2013/9/10 字体: 来源: 作者:

By Anne C. O'Donnell of FindLaw

More and more people are turning to the blogosphere to permanently memorialize their inner thoughts, opinions, and commentary on anything and everything. Many follow other people's blogs and post comments. Certainly, there are a countless valuable blogs out there, and even some comments can be informative. However, if you have put your toe in the proverbial water that is the world on online discourse, no doubt you have encountered blogs or comments that lack a certain civility, to say the least.

When does that lack of civility cross over to criminal liability?

On June 21, 2013, the Second Circuit Court of Appeals addressed that very question. The Court upheld the conviction of a self-identified "talk-show radio host," Harold Turner, who posted a blog declaring that three Seventh Circuit judges deserved to die for their decision that the Second Amendment did not apply to the states. That case, National Rifle Association of America v. Chicago, from 2009, upheld the ban on handguns in Chicago, an outcome that was later reversed in 2010, by the holding of McDonald v. Chicago.

According to the opinion, the blog post contained detailed statements about Turner's contempt for the judge's decision and the judicial process. At one point in the lengthy statement, he specifically threatened the judges, writing: "Their blood will replenish the tree of liberty." A recitation of Turner's posting is quoted at length in the Court's opinion.

He also posted the judges' photographs, room numbers of the judges' chamber, a photograph and map of the courthouse's location, and on the building's photograph, Turner drew red arrows and wrote, "Anti-truck bomb barriers," to illustrate the location of these barriers around the building.

Turner was convicted of threatening to assault or murder three federal judges.

On appeal, the Second Circuit rejected Turner's argument that his statements were mere political hyperbole, did not amount to a threat of violence, and was constitutionally protected speech.

"True Threat" Test

Judge Livingston, writing for the majority, said that the test for whether conduct amounts to a true threat is an objective one, that is, whether an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury. Statutory prohibitions that criminalize making true threats, even if the speaker has no intent to carry them out, is consistent with the First Amendment, she wrote.

No Constitutional Protection for "Doing Something More" Than Criticism

The Court found that Turner would be constitutionally entitled to "condemn" or "disparage" the Seventh Circuit for its opinion. "Debate on public issues should be uninhibited, robust, and wide open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

However, significantly, what Turner wrote was far beyond just criticism. "He was convicted of doing something more--of threatening the lives of three judges with the intent".

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