Posted by Eugene Volokh:
First Amendment Protects Disclosure of Name and Address of Juror, Together With
Condemnation of Juror, on Racist Web Site:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248280221
That's the holding of [1]U.S. v. White (N.D. Ill.), decided yesterday,
which dismissed White's indictment for allegedly [2]soliciting
criminal actions against the juror (long after the trial was
completed). An excerpt:
In 2003, a jury in the Northern District of Illinois convicted Hale
of soliciting the murder of District Judge Joan Lefkow, who had
presided over a civil case involving Hale�s organization....
On October 21, 2008, the government indicted defendant, alleging
that on his website, Overthrow.com, he solicited or otherwise
endeavored to persuade another person to harm �Juror A,� the Hale
jury foreperson. Specifically, the government alleged that on or
about September 11, 2008, defendant displayed on the front page of
his website a post entitled, �The Juror Who Convicted Matt Hale.�
The post read:
Gay anti-racist [Juror A] was a juror who played a key role in
convicting Matt Hale. Born [date], [he/she] lives at [address] with
[his/her] gay black lover and [his/her] cat [name]. [His/Her] phone
number is [phone number], cell phone [phone number], and [his/her]
office is [phone number].
The post did not expressly advocate that Juror A be harmed.
As �circumstances strongly corroborative of [defendant�s] intent�
that another person harm Juror A, the indictment alleged that when
he posted the above statements, defendant was aware that white
supremacists, Overthrow.com�s target audience, sometimes committed
acts of violence against non-whites, Jews, homosexuals and others
perceived as acting contrary to the interests of the white race.
The indictment also alleged that before he posted the above
statements, defendant displayed on Overthrow.com other posts, some
of which were still available, purporting to contain the home
addresses of and/or other identifying information about individuals
who had been criticized on the website, and that in certain of
these posts, defendant expressed a desire that the individuals be
harmed.
To see more of the facts, and the court's analysis, please read [3]the
opinion. For now, let me just quote the discussion of [4]NAACP v.
Claiborne Hardware (1982):
In Claiborne Hardware, the Supreme Court considered a boycott by
black citizens of white-owned businesses in Claiborne County,
Mississippi. As is pertinent here, the boycott involved stationing
individuals, known as �enforcers,� �deacons� or �black hats,� near
white-owned businesses for the purpose of reporting blacks who
violated the boycott. Boycott supporters read the names of such
persons at meetings of the Claiborne County NAACP and at church
services and published them in a mimeographed paper entitled the
�Black Times.� Such persons �were branded as traitors to the black
cause, called demeaning names, and socially ostracized for merely
trading with whites.� Some also became targets of violence.
While acknowledging that persons who committed acts of violence
could be held liable, the Supreme Court held that others involved
in the boycott, including the leader, Charles Evers, could not be.
This was so despite Evers�s statements that �blacks who traded with
white merchants would be answerable to him,� that �any �uncle toms�
who broke the boycott would �have their necks broken� by their own
people,� that if �we catch any of you going in any of them racist
stores, we�re gonna break your damn neck,� that �boycott violators
would be �disciplined� by their own people� and �that the Sheriff
could not sleep with boycott violators at night.�
Regarding this aspect of the boycott, the Court noted that speech
does not lose its protected character �simply because it may
embarrass others or coerce them into action.� Even when the speech
arguably contains threats of violence, �in the context of
constitutionally protected activity ... �precision of regulation�
is demanded.� The Court thus held that, although the �black hats�
who engaged in violence could be punished, there �is nothing
unlawful in standing outside a store and recording names.
Similarly, there is nothing unlawful in wearing black hats,
although such apparel may cause apprehension in others.� Finally,
the Court held that Evers could not be held liable for his
statements about the boycott violators:
While many of the comments in Evers� speeches might have
contemplated �discipline� in the permissible form of social
ostracism, it cannot be denied that references to the possibility
that necks would be broken and to the fact that the Sheriff could
not sleep with boycott violators at night implicitly conveyed a
sterner message. In the passionate atmosphere in which the speeches
were delivered, they might have been understood as inviting an
unlawful form of discipline or, at least, as intending to create a
fear of violence whether or not improper discipline was
specifically intended.
It is clear that �fighting words� -� those that provoke immediate
violence -� are not protected by the First Amendment. Similarly,
words that create an immediate panic are not entitled to
constitutional protection. This Court has made clear, however, that
mere advocacy of the use of force or violence does not remove
speech from the protection of the First Amendment. In Brandenburg
v. Ohio, we reversed the conviction of a Ku Klux Klan leader for
threatening �revengeance� if the �suppression� of the white race
continued; we relied on �the principle that the constitutional
guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action.� The emotionally charged rhetoric of Charles
Evers� speeches did not transcend the bounds of protected speech
set forth in Brandenburg.... Strong and effective extemporaneous
rhetoric cannot be nicely channeled in purely dulcet phrases. An
advocate must be free to stimulate his audience with spontaneous
and emotional appeals for unity and action in a common cause. When
such appeals do not incite lawless action, they must be regarded as
protected speech. To rule otherwise would ignore the �profound
national commitment� that �debate on public issues should be
uninhibited, robust, and wide-open.�
In the present case, defendant also disclosed the identity of a
person, Juror A, with whom he disagreed on a matter of social
importance, i.e. the conviction of Hale in a high profile criminal
case. Although he did so under potentially intimidating
circumstances, as Claiborne Hardware holds, even when the
circumstances surrounding a disclosure are intimidating, the speech
may not be punished consistent with the First Amendment unless it
is directed to inciting imminent lawless action and likely to
produce such action. Defendant�s speech lacked both of these
characteristics.
You might also want to read the rest of the analysis, and in
particular pp. 19-34, which discuss other cases, including the
Nuremberg Files case. (For my views on the Nuremberg Files case, see
[5]this op-ed supporting the panel decision that was later reversed by
a 6-5 vote of a Ninth Circuit en banc panel.) This is a very
interesting, important, and difficult category of First Amendment
questions, and the court's opinion strikes me as a must-read for
anyone interested in this.
References
1. http://www.roanoke.com/pdfs/0721_whitemotion.pdf
2. http://law.onecle.com/uscode/18/373.html
3. http://www.roanoke.com/pdfs/0721_whitemotion.pdf
4. http://supreme.justia.com/us/458/886/case.html
5. http://www.law.ucla.edu/faculty/volokh/nurember.htm
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