Blogger claims First Amendment protects his right to urge violence

 “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” — Oliver Wendell Holmes Jr., Abrams v US 1919.

“These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.” — Harold “Hal” Turner, June 2009, in a blog post that named three Connecticut state officials and urged “direct action against these individuals personally” for their involvement in legislation concerning the Catholic Church.

Harold Turner, 49, is set to be tried in Hartford Superior Court this week on state charges that his blog post two years ago constituted a criminal effort to incite injury. The issue is about nothing less than where the right to free speech should stop.

“Just because it’s violent, that doesn’t make it unprotected speech,” Turner’s lawyer, John Stawicki, says of Turner’s angry post. “If violent speech alone could get you in prison, most of us would be there.”

Connecticut State Capitol Police arrested Turner in New Jersey after he posted that vitriolic blog item against two Connecticut state lawmakers and a state ethics official.

Turner, a right-wing blogger, radio personality and occasional paid informant for the FBI, was pissed off about legislation that would have given lay members of the Catholic Church more authority over parish finances. The bizarre thing about his blog post was the bill had been withdrawn three months earlier.

That didn’t stop him from naming then-state Rep. Michael Lawlor and then-state Sen. Andrew McDonald, the sponsors of the bill in question, and Thomas Jones, a state ethics enforcement official, as targets of his wrath. (Lawlor and McDonald are now members of Gov. Dannel Malloy’s administration. They declined to comment for this story, very likely because they expect to be called as witnesses in Turner’s trial.)

In his post, Turner urged Connecticut Catholics to “take up arms and put down this tyranny by force.” He also suggested that, if law enforcement types tried to interfere with this cause, “I suspect we have enough bullets to put them down too.”

Lawlor, McDonald and Jones said they feared for their safety because of the blog post. Turner’s post went up on his website just days after an abortion clinic doctor, who had been reviled on the Internet by anti-abortion activists, was shot and killed in Kansas.

Turner is already serving a three-year prison term for other blog posts in 2009 that a federal jury found constituted illegal threats against three federal appellate judges. He was pissed off at those judges because they upheld a Chicago city ordinance banning handguns and automatic weapons, and posted the judges’ photos and work addresses.

In a sentencing document, federal prosecutors described Turner as a racist and a white supremacist.

His blog diatribe against the three judges included calling their decision “the most spectacular act of judicial malfeasance [he] had ever witnessed,” saying they “deserve the ultimate punishment,” labelling them “traitors” and adding, “These judges deserve to be killed.”

To top everything off, he also cited the recent slaying of relatives of a different Chicago judge. “Apparently the 7th U.S. Circuit Court didn’t get the hint after those killings. It appears another lesson is needed.”

It took federal prosecutors three trials before they were able to convict Turner in that case, and his lawyers have already filed an appeal. According to court transcripts, Turner repeatedly testified that he never wanted or intended for the judges or the three Connecticut officials to be harmed.

Stawicki says Turner’s federal conviction “is irrelevant” to the Connecticut case, and that what Turner did was no different than Republican Sarah Palin’s website using gun scope crosshairs on a map to target Democrats she wanted defeated in congressional races.

He’s also filed motions to dismiss the case on the grounds that there was never any immediate threat to the three Connecticut officials, and that Connecticut law enforcement had no jurisdiction to arrest Turner, who posted his blog item from his office in New Jersey. “He [Turner] had no plans to come to Connecticut, no contact with anyone in Connecticut,” Stawicki says.

Martin Margulies, professor emeritus at the Quinnipiac University School of Law, says it is extraordinarily difficult to convict anyone for making even the most outrageous comments. To get a conviction, Margulies says, you have to prove those comments fall into one of two narrow exceptions to the First Amendment’s free speech protections.

The first is what’s called a “true threat,” which Margulies explains refers to an “intentional statement which could have the effect of intimidating someone.” Even if you don’t intend to carry out that threat, it wouldn’t be protected if the victim had a reasonable cause to fear violence.

The second exception is “incitement,” and to convict someone of that you’d have to show there was “an actual intent to encourage others to commit a crime, and the likelihood the crime will occur soon,” according to Margulies.

“The whole point of the First Amendment is to encourage even outrageous opinions as long as they don’t fall into one of those categories,” says Margulies. “The courts cut every latitude to outrageous speakers because we don’t trust government to draw the lines.”

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