As a new feature here at Blog Law Blog, I’m publishing selected court opinions in their full form.
The first opinion I am putting up is State v. Turner, a new trial court opinion out of Connecticut.
In this criminal matter, blogger Harold Turner (“Hal Turner”) is alleged to have violated Connecticut’s incitement statute with material he posted to his Turner Radio Network or “TRN” blog (which Google’s Blogger has taken offline).
Upset by a pending bill in the Connecticut legislature regarding finances of the Catholic church, Turner, while being located in New Jersey, is alleged to have blogged:
TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON THE “HAL TURNER SHOW” we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of Thomas K. Jones of OSE. …
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 …
Turner was arrested after this post and before the home addresses were released.
Turner claimed he was protected by the First Amendment and that, as a jurisdictional matter, the Connecticut statute shouldn’t apply to blogging he did in New Jersey.
On the extraterritorial jurisdiction issue, the court quoted precedent to hold that since the threatened action was “closely tied to the public welfare of” and was “intended to produce … detrimental effects within” Connecticut, the court had jurisdiction under the statute.
On the First Amendment question, the court applied the U.S. Supreme Court’s standard announced in Brandenburg v. Ohio (1969). Under that case, in order to qualify as incitement, and therefore be denied First Amendment protection, the speech at issue must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In other words, the keys are imminency and likelihood.
The court held that blogging Tuesday about “THIS WEDNESDAY NIGHT” qualified as imminent.
As to likelihood, one might wonder how likely it really was that such a blogged rant would actually produce action. Indeed, it does seem a little dubious to believe that Turner had some reader out there ready to do his bidding. But the court held – properly I think – that this issue should go to the jury. In sum, the judge’s reasoning was: These are crazy times and there are lots of crazy people out there. In the court’s own words:
Of course, most Connecticut Catholics or other citizens would not have been persuaded by the defendant’s message to take up arms and attack state officials with physical force. However, the court cannot overlook the fact that we live in an age of terrorism and violence, including violence concerning difference in religious doctrine, and that there are unstable individuals with access to firearms … One need only go back approximately ten years from today’s date to recall the devastation that religious fanaticism can produce in this country.
The full court opinion:
- Evan Brown (@internetcases) on Internet Cases: Online threats made by blogger were not protected by the First Amendment
- NBC Connecticut: Blogger: Prosecution is Assault on 1st Amendment