A couple of months ago, I noted the arrest of New Jersey blogger Hal Turner for threatening federal judges. His crime was writing that two judges on the U.S. Court of Appeals for the 7th Circuit who ruled that the Second Amendment does not apply to state governments "deserve to be killed"; the post included the judges' photos and the addresses of their chambers. Turner also faces charges in Connecticut for threatening state legislators. According to A.P., he "urged his readers to 'take up arms' against Connecticut lawmakers and suggested government officials should 'obey the Constitution or die,' because he was angry over legislation—later withdrawn—that would have given lay members of Roman Catholic churches more control over their parish's finances." In my view, neither of these statements constitutes a "true threat" or incitement, and they ought to be protected by the First Amendment. In an interesting twist, Turner's lawyer is reinforcing that argument by claiming that his client was trained by the FBI to cozy up with white supremacists and encourage them to break the law:
Hal Turner worked for the FBI from 2002 to 2007 as an "agent provocateur" and was taught by the agency "what he could say that wouldn't be crossing the line," defense attorney Michael Orozco said.
"His job was basically to publish information which would cause other parties to act in a manner which would lead to their arrest," Orozco said.
Prosecutors have acknowledged that Turner was an informant who spied on radical right-wing organizations, but the defense has said Turner was not working for the FBI when he allegedly made threats against Connecticut legislators and wrote that three federal judges in Illinois deserved to die.
"But if you compare anything that he did say when he was operating, there was no difference. No difference whatsoever," Orozco said.
This argument could backfire, since by Turner's account the FBI wanted him to say things that would provoke others to commit crimes. That sounds a lot like speech that was both intended and likely to result in "imminent lawless action," a category the Supreme Court has said is not covered by the First Amendment.