Thursday, April 10, 2008

What Right to Incite?

Tainted by journalism school, as well as the WWII parents' generation love of the Bill of Rights, I'm a big First Amendment guy. The law...abridging the freedom of speech, or of the press... part is a predictable button for me.

What might inspire the feds to come down heavy on someone who openly and specifically calls for the assault or murder of an American citizen? Would this be terrorism in the definition by the Office of Homeland Security — Might the feds look beyond the "Islamic" terrorists, as in the current, "The arrest and prosecution inside the United States of a small number of violent Islamic extremists points to the possibility that others in the Homeland may become sufficiently radicalized to view the use of violence within the United States as legitimate."?

Considerable sweet justice would be manifest when Homeland Security, that darling of the right would prosecute such terrorists. How else then but as terrorists are we to view those who would create wanted posters or publish photos and locations of Americans and say others should target them for death? What is more obviously terrorism than that?

Such prosecutions would be the equivalent of nabbing Al Capone, not for his murders and racketeering, but for income-tax evasion.

Smell a Rat?

Of course, free speech is not an absolute right, beyond Congress being forbidden from legislating against it. For one example, inciting to riot is criminal, even if the speaker does not take part in ensuing violence.

With some misgiving, I link to The Hal Turner Show, the source of the current controversy about the Lexington diversity program and calls for harming the school superintendent there. An earlier post on this blog avoided citing him by name and some background on the diversity effort preceded it. You can also search in the box at the top of the page for Lexington for related posts.

Warning: If you click to Turner, be aware that many of his posts and nearly all comments on them are hateful, anti-Semitic, anti-gay or white supremacist, and in some cases, mash-ups of bigotry.

A bizarre unknown in the Turner instance is whether he has FBI protection. It is certainly possible and now seems likely that Turner has been an FBI informant for some years. If so, that would go a long way toward explaining how he has escaped prosecution for calling for people to hurt or even kill others. The apparent fact that there is no evidence that he plotted with others to perform felonies may not be enough to shield him, as we have seen in other cases. It is harder if he has some deal with a federal agency though.

Details of the allegations and email evidence are here. Turner's response to the January charges was not to deny them, rather to say he was stepping back from the white-supremacist movement.

As we have seen nationwide and too often here in Boston, some FBI agents appear to find the Bill of Rights an inconvenience rather than a standard to uphold. Agents here have sent Americans to jail for decades for crimes they didn't commit and protected heinous gangsters from arrest and prosecution.

Tissue Paper Wall

The question of free speech versus the civil rights of others is often moot. We all want to be able to rant and rail and praise and muse aloud. In many nations, such speech is illegal. Yet, where someone's speech would lead to another's dying, there is no question.

Where the wall gets thin is in considering the laws and court opinions in various states and federal districts. For example, that inciting to riot is a concept that goes back to colonial times here. In many places that has come to mean roiling three our more people up to break the law, generally by hurting people and property. Yet, even here, some provocateurs have tried with varying degrees of success to defend themselves against such charges by claiming they were using metaphors or satire, that they didn't actually mean kill like you know kill or burn as in burn.

In such cases, the legal prosecution has often been civilly based, as it has with race-based civil-rights action against the Ku Klux Klan.

Perhaps the best current example of the courts' support for free speech in general is the mixed final rulings on an abortion doctor threat case involving the American Coalition of Life Activists. They published wanted posters of doctors who performed abortions in clinics. These poster had the photo, locations and other contact information for each, although with offers of $5,000 rewards "for arrest, conviction and revocation of license to practice medicine. "

After anti-choice extremists murdered three of the doctors and the site crossed off their images, Planned Parenthood sued and won over $100 million in damages. After numerous appeals, the verdict was watered down considerably. The 9th Federal District Court overturned the monetary award. It split the free-speech issues. The borderline and non-violent content of the group's website were protected speech. The calls to harm or kill physicians were not. Some of the speech was considered, in legal terms, true threats and others not.

Moreover, the group avoided some penalties because it had not directly threatened Planned Parenthood, and that it had not privately communicated its threats on top of the site's contents.

Planned Parenthood bills this as:
In a clear victory for all providers and recipients of reproductive health care, the U.S. Supreme Court rejects the appeal of hard-right, violent extremists seeking to overturn a federal court decision that forbids the American Coalition of Life Activists (ACLA) from issuing "wanted" posters that target doctors. The court's decision in Planned Parenthood v. American Coalition of Life Activists to deny certiorari leaves intact a lower court holding that such "wanted" posters targeting abortion providers are illegal threats of violence.
I would have found it a lot more powerful a win if the monetary award had remained. So, there's lots of room and reason for prosecution, criminal and civil in such cases. However, courts tend to favor free speech to a great degree. It is likely that various hate groups will cross these lines and face civil and criminal prosecution or both. Those cases will more fully codify what's allowable.

Cutting No Slack

Those who duck behind the First Amendment for hate speech seem often to be infected by that I'm-so-clever bug. Believing they are untouchable often leads to more offensive and anti-American speech. It is important to keep in mind that the aims here are almost always to take away others' rights and limit their freedoms.

For an extreme example, a federal judge in Chicago, was ordered by a higher court to rule on a copyright infringement by a white supremacist group. After she ruled against them three years ago, that same Hal Turner "said on his show that Judge (Joan) Lefkow was 'worthy of being killed,' adding that 'it wouldn't be legal, but in my opinion it wouldn't be wrong,'" according to the New York Times.

Shortly after, her husband of 30 years and her 89-year-old mother were shot to death in her home. It seemed certain their be a link to the supremacist group and calls for her murder.

A leader of the supremacist group, Matthew Hale had already been convicted with testimony from an FBI informant of plotting to kill the judge. In the double murder, a Bart Ross killed himself at a traffic stop in Wisconsin and had a hand-written confession to the case in his car. Other evidence corroborated his guilt. However, he was not with the supremacist group, rather a disgruntled loser in a law suit the judge had decided. There was no apparent link to any hate groups or individuals.

Others beyond Turner maintain the sensationalist justification for ideological enemies. As the NYT reported in part:
Sympathizers abound. "Everyone associated with the Matt Hale trial has deserved assassination for a long time," read an Internet essay posted Tuesday by Bill White, editor of The Libertarian Socialist News. "I don't feel bad that Judge Lefkow's family was murdered today. In fact, when I heard the story, I laughed."
While that should appall those of a humane bent, it too is protected speech.

Feigned Victimhood

I could fill this page with links to laments from wingers who liken any limits on hate speech and even calls for death to those they disagree with. They like to set up the straw man argument that any stricture will mean that storm troopers will burst into churches to haul preachers from their pulpits for speaking their religious tenets and emotional conclusions.

Those arguments have appeared in Canada, Europe and Australia as well as here. That it doesn't and won't happen and that such speech is also protected by numerous other laws does not stop those who lie with with tactic. The fact remains that there have always been limits on free speech, which in no small part accounts for the vigorous defense of free-speech by the ACLU and others.

So, we might wonder what some of our local anti-gay and anti-marriage equality types think of all this Turner/Lexington hooha. We turn first the simplistic comparison of stereotypical kids in the schoolyard. Doing the dozens and calling out each other's mom is not nice, but it's what we parents call age appropriate behavior. On the other hand, escalating to physical violence is out, by anyone's rules.

Here's where cleverness breaks down. Over at MassResistance, for one example, they trivialized the calls for violence against Ash. Somehow a non-threatening obscene call to the Mad Dad and KnowThyNeighbor's listing the public records of who signed the petition to repeal same-sex marriage here are supposed to be as bad as calls for death or assault.

For another, the Mad Dad himself stopped just short of saying people should hurt Superintendent Paul Ash. Instead, in his TV interview-ette, he said that Ash shouldn't be surprised, that parents would be extremely angry. He stressed extremely.

Over at MassResistanceWatch, Bud had the clear view on that:
And it should be no surprise that David Parker has not condemned the threats against Ash (after all, he held up in an elementary school until police arrested him) and justified the anger:

Should there be a show of force against this, yes. But violence at this time is not the answer," Parker said.

Hmm..."violence at this time is not the answer", er, David, violence is NEVER the answer.
And actually, that's the law as well as basic humanity. Free speech rights stop at trying to deprive others of their right to live.

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Anonymous said...

The reason Hal Turner has never been arrested for what he says rests in two separate US Supreme Court decisions which Turner has often cited.

1) Brandenberg v. Ohio
You can view the very short explanation of this case at

Basically, anyone say call for any criminal act as long as they do so "in a context which does not lend itself to IMMINENT lawlessness. A talk radio show does not lend itself to IMMINENT lawlessness.

2) Virginia v. Black
You can view the very short description of this case at:

This case deals with "intimidation" of people and protects certain "acts" even though they may seem to be intimidation.

Turner doesn;t get arrested because under existing case law, he has not broken any laws.

massmarrier said...

I'm neither sure the last comment is true, just untested. Also, the civil side is a whole other matter. Finally, I'll be fascinated to see what else shakes loose on the informant issue. He's pushed the boundaries of both kinds of law for years. It remains to be seen if there are consequences, other than being widely reviled.

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