The complaint in US v. Turner is available here. In it, the FBI alleges that Hal Turner, the right-wing shock-jock, internet blogger, and one-time FBI informant, threatened to assault and murder three federal judges because of an anti-gun rights ruling they issued last June. Turner also faces charges for inciting violence against two state lawmakers and an ethics official in Connecticut following debate on a controversial legislative provision in that state.
The charges stem from entries posted to Turner's blog that his lawyer argues are protected under the First Amendment. Under Brandenburg v. Ohio, the First Amendment protects the "advocacy of the use of force" unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Here's a sample of what led to the charges in Connecticut:
It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die. If any state attorney, police department or court thinks they're going to get uppity with us about this; I suspect we have enough bullets to put them down too.
And that's the mild stuff.
He tried to back-peddle a bit later, telling a police officer that "It's certainly my intent to motivate the public to get involved in this, and certainly we hope that nobody's going to go off the deep end and do something terrible, but ... you never can tell."
And here's what Turner's lawyer argued last week to a court in Connecticut: "Mr. Turner's blog tends to have a small following of right-wing followers. . . The language used by this segment of the population to express its views is sometimes harsh or often peppered with violence. Regardless of how many people may have viewed it, given his public status and shock jock persona, there can be no doubt that Turner's statements were nothing more than politically charged rhetoric of someone unhappy with the judge's opinion in NRA v. Chicago, and are therefore protected."
I take this to mean not only that Turner didn't intend to incite violence, but that whatever his intent, the shock-jock set is so sensitized to violent language that they're the one's least likely to take up a call to arms. But that can't be right, can it? Can preaching to the choir really make it less likely, rather than more likely, that someone will put words into action? And doesn't this theory just give shock-jocks an incentive to ratchet up the extremism - the more radical the speech, the more sensitizing its effect, the more likely the First Amendment provides a defense?
-Kathleen Bergin
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