The Difference Between 'They Should Die' and 'I'll Kill You'

Yesterday the FBI arrested a white supremacist in New Jersey for threatening federal judges, based on his online response to the recent 7th Circuit decision that said the Second Amendment does not constrain state and local governments. Here is a description of the crime that Hal Turner, an Internet radio host, committed:

"Let me be the first to say this plainly: These judges deserve to be killed," Mr. Turner wrote in a blog entry on June 2. "Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."

He said the three judges, William J. Bauer, Frank H. Easterbrook and Richard A. Posner, should be made "an example" of in order to send a message to the rest of the federal judiciary: "Obey the Constitution or die."

Mr. Turner also posted the judges' photographs, phone numbers, work addresses and courtroom numbers.

There is no indication that Mr. Turner or anyone else acted on his warnings. Nonetheless, the Federal Bureau of Investigation said in an affidavit that it believed his comments constituted "a threat to assault or murder a United States judge."

This does not seem like a "true threat," one kind of speech the Supreme Court has said can be punished without violating the First Amendment. Turner did not actually threaten to commit violence; he simply argued that violence would be justified. What he said seems closer to incitement, except that in this case there is no threat of "imminent lawless action," one of the requirements imposed by the Court. Unless I'm missing something, what Turner said ought to be protected speech.

What do you think? Does the posting of photographs and information about the judges make a crucial difference?

As The New York Times notes, Turner's arrest is reminiscent of the "Nuremberg Files" case, in which the U.S. Court of Appeals for the 9th Circuit upheld a $109 million civil judgment against the operators of website that arguably encouraged violence against abortion providers. In 1999 I argued that the website should be protected by the First Amendment, the position that a 9th Circuit panel endorsed before it was overturned by the full court.