In bringing criminal charges against an Internet radio host and blogger who wrote that three judges "deserve to be killed" for their ruling in a 2nd Amendment case, the U.S. Justice Department isn't risking much public criticism. But the prosecution of the despicable Hal Turner looks like an attempt to punish speech, not action.
Turner long has ranted against public officials and others who don't share his right-wing views; his rhetoric is so vile and his manner so confrontational that they border on incitement of violence. But under the 1st Amendment, "bordering on incitement" isn't enough to justify punishment. In 1969, the court overturned the conviction of a Ku Klux Klan leader who had urged "revengeance" against the government for suppressing the white race. The court ruled that advocating the use of force couldn't be punished "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Why should the 1st Amendment protect someone who publicly says that a politician or judge or doctor should be killed? Two reasons: Such statements are often hyperbole, and even statements that include an endorsement of violence can serve the purpose of communicating outrage about public policies.
The "imminent lawless action" standard has been applied inconsistently. In 2002, the U.S. 9th Circuit Court of Appeals upheld a civil judgment against antiabortion activists who posted online a list of abortion doctors with lines drawn through the names of those who had been killed or wounded. (Similarly, Turner, who last year publicly relished the idea of violence against editors of this newspaper, posted the photos and office addresses of the judges.)
Perhaps prosecutors will present evidence that Turner's outrageous comments about the judges were intended or likely to produce imminent violence against them. If so, Turner's conviction might be warranted. But the government's complaint is not persuasive.
In pursuing this and similar prosecutions, the Justice Department should remember the words of Justice Oliver Wendell Holmes Jr. in a famous 1919 case: "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, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."