Two recent prosecutions of neo-Nazis reflect a complex legal struggle to define what amounts to an illegal ‘true threat’
On March 22, 2007, Jennifer Petsche arrived home from her job at Citibank around 4:30 p.m. and began cooking dinner. When the phone rang, she let the answering machine pick up. As she listened to the message, her ordinary day turned into something very different.
“I was astonished,” she later recalled. “In my 14 years at Citibank, I had never had a card member call me at home.”
The man on the line calmly informed her that he was Bill White, that he wanted to talk to her, and that he had sent her an E-mail. Earlier that day, the same man had left her a message on her voicemail at work insisting that he speak with her, even though she was not involved in a credit card dispute between White and Citibank. After receiving the second message at home, Petsche was sufficiently alarmed that she called her husband and notified a night supervisor at Citibank. She slept poorly that night, wondering about the contents of the E-mail.
When she got to work at Citibank’s Kansas City, Mo., office around 7:30 the next morning, the E-mail was in her inbox. It contained her current and prior addresses, including the location of her parents’ home. White compared Petsche to Chicago judge Joan Lefkow and provided a Web link to information about the 2005 murder of Lefkow’s mother and husband in their home after a neo-Nazi posted Lefkow’s home address on the Web. “I must admit I have run out of patience with you and your smug attitude,” he wrote. “I hope the fact that I’ve obviously paid someone to find you conveys the seriousness with which I take your current attitude.”
What White failed to anticipate is that authorities would take him seriously. He was found guilty by a federal jury in Roanoke, Va., last December of threatening several people, including Petsche. His convictions followed the mistrial in Brooklyn, N.Y., 11 days earlier of Hal Turner, a blogger and Internet radio host from New Jersey, who’d been charged with threatening over the Internet to assault and murder three federal judges in Chicago. The arrests of Turner and White shut down their blogs, forced Turner off the air, and obliterated White’s neo-Nazi organization, the American National Socialist Workers Party, which in 2008 had 35 chapters in 28 states. Writing from jail shortly before his trial began, White lamented that “the federal government has launched a massive effort to ‘decapitate’ white organizations.”
But the implications of these high-profile cases go beyond the crippling effect on the defendants’ hate activities. White supremacists increasingly have been using the Internet to broadcast their views and to reach potential followers. For years, White and Turner have been among the loudest voices of bigotry in cyberspace, regularly posting people’s personal information and suggesting they should be harmed. Their trials show that while the border separating ugly but legal hate speech from criminal threats isn’t well defined, there are limits to what can be said even in the still new and largely unregulated realm of the Internet.
“We live in a world where rhetoric is increasingly tilting toward violence, where extremists are becoming adept at going up to the line but not crossing it,” said Brian Levin, a lawyer who directs the Center for the Study of Hate and Extremism at California State University, San Bernardino. “The law is struggling to untangle protected hate speech from unprotected violence and threats, which often come in the same package. These trials put hate-mongers on notice: If they target their venom too narrowly, too violently and too explicitly, they run the risk of crossing from political discourse to prison.”
Testing the Limits
Long before they faced charges in connection with their words, Bill White, 32, and Hal Turner, 47, regularly tested the bounds of free speech. In 1996, while a student at the University of Maryland, White became one of the first people to use the Internet to harass his enemies when he posted the phone number of a woman he believed was abusing her teenage daughter. “You should be able to write what you want on the Internet, whether it’s true or not,” he told The Washington Post at the time.
Though he was then a fan of Malcolm X, White’s unusual political trajectory eventually took him from left-wing anarchist to neo-Nazi. He founded and led the American National Socialist Workers Party and, until his arrest in October 2008, ran Overthrow.com, one of the best-read websites on the neo-Nazi scene. In September 2007, he used his website to broadcast the home addresses and phone numbers of five of the six black teenagers who faced harsh criminal penalties after a schoolyard fight in Jena, La. “Lynch the Jena 6!” he proclaimed in a headline on the website, adding the suggestion that his readers “get in touch and let them know justice is coming.” As a result, the governor provided the teens’ families with police protection.
In 2004, White began his self-described “ghetto beautification project,” buying distressed properties in a poor neighborhood of Roanoke, Va. He frequently maligned his tenants, writing about their alleged drug use, criminal records and prostitution. Among the names he used for African Americans were “niggers,” “nig-rats” and “vermin.” One lawyer who represented four of White’s renters in court battles told the Intelligence Report that White published falsehoods about his tenants in order to intimidate them.
Turner also has a lengthy history of slandering his enemies and even suggesting they should be killed. In 2007, he railed against then President George W. Bush, saying that “a well-placed bullet can solve a lot of problems.” He has written that “we need to start SHOOTING AND KILLING Mexicans as they cross the border.” In a case that’s still pending, he was charged last June with inciting violence after he posted a blog entry that encouraged followers to take up arms against two Connecticut lawmakers. He was upset about a bill that would have given more power to the laity in the Roman Catholic Church.
Unlike White, however, Turner was a paid FBI informant for several years, beginning in June 2003. This magazine’s blog publicized Turner’s informant status in January 2008, shortly after unidentified hackers posted E-mail correspondence between Turner and an FBI agent in the forum of Turner’s website for his radio program, “The Hal Turner Show.” The article quoted several experts in police procedure who sharply criticized the FBI’s use of an informant who regularly encouraged his followers to commit violence.
New details that emerged during the trial revealed the extent of Turner’s FBI involvement. Despite repeatedly targeting public figures on his website, he received thousands of dollars from the FBI for intelligence on white supremacist organizations such as the Aryan Nations and National Alliance. According to an April 2006 report from U.S. Capitol Police in Turner’s court file, Special Agent Stephen Haug, Turner’s FBI handler, told his colleagues “that Turner quotes the constitution better than most lawyers and knows where the line is and knows not to cross it.” The report continued: “S/A Haug is continuously monitoring Turner and said that Turner is all talk and no action. Turner is an ego maniac and loves it when police officials contact him.”
The FBI even paid for his plane ticket when he flew to Brazil to court a potential National Alliance donor. According to court documents, the trip allowed Turner to identify 12 people of interest to the FBI, including an Arab who talked about doing business with Turner in order to provide supplies to Iraqi insurgents.
Known by his FBI code name of Valhalla, Turner was considered a reliable informant who gave potentially life-saving information. An FBI memo dated Nov. 12, 2007, requested permission to again use Turner as an informant, three months after the FBI had severed its relationship with him because of “serious control problems.” The memo, filed in federal court, stated that Turner had provided information that prevented more than 10 acts of violence and led to multiple arrests. “Writer considers the re-opening of the above referenced CHS [confidential human source] as a critical step to the prevention of domestic terrorism and lone wolf actions inside the United States,” the memo stated. (Trial testimony suggested that Turner did not resume work as an informant; the FBI wouldn’t comment, citing its policy of not releasing information about informants.)
According to the November 2007 memo, the agency had dropped Turner because he was ignoring his handlers’ instructions to cease making indirect violent threats and to stop organizing large-scale public rallies. “These rallies drew national media attention and required significant local resources in terms of event security,” the memo said. Indeed, as Turner’s trial got under way, the mayor of Kingston, N.Y., demanded that the FBI reimburse his city $80,000 to cover the cost of police overtime and other expenses associated with Turner’s November 2005 rally there.
‘True Threats’ and the Law
What finally landed Turner in U.S. District Court in Brooklyn were his blog entries blasting a June 2, 2009, decision by the 7th U.S. Circuit of Appeals in Chicago that essentially upheld local handgun bans. He wrote that Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer “deserve to be killed” and posted their photographs, work locations, and a photograph of their courthouse that was modified to show the locations of “anti-truck bomb barriers.” According to statements one juror made to the press, government prosecutors failed to persuade most jurors, who voted 9-3 for Turner’s acquittal. With the jury deadlocked, Judge Donald Walter declared a mistrial on Dec. 7 and scheduled a new trial for March 1.
Like Turner, White posted on his blog personal information about his perceived enemies, including home phone numbers and addresses, along with threatening language. On Dec. 18, a federal jury in Roanoke convicted him of threatening Petsche, as well as a university administrator and a human rights lawyer, and of intimidating tenants in Virginia Beach who had filed a lawsuit against their landlord. In February, U.S. District Judge James Turk dismissed the charge of threatening the human rights lawyer, but upheld the other portion of the jury’s verdict. White was acquitted of threatening Pulitzer Prize-winning columnist Leonard Pitts and a former New Jersey mayor, and of threatening Petsche with the intent to extort. White’s sentencing has been set for April 14.
The key question in both the White and Turner proceedings was whether the defendants’ statements amounted to criminal threats or only to fiery rhetoric, which is constitutionally protected. “That’s the line that courts struggle with in these cases,” said Larry Rosenthal, a professor at Chapman University School of Law School in Orange, Calif.
(Lawyers for both sides in the White case declined to comment, while lawyers in Turner’s federal case are under a gag order while Turner is awaiting retrial.)
The Supreme Court has addressed the nature of “true threats” in a number of cases. In Watts v. the United States, for instance, the Court reversed Robert Watts’ felony conviction for threatening the president at a Vietnam War protest in Washington D.C. After implying that he intended to dodge the draft, Watts allegedly said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” The Court stated that his words were hyperbole, aimed at making a political point, rather than a true threat to assassinate the president. In Virginia v. Black, on the other hand, the Court upheld a Virginia state law that prohibited cross burning with the intent to intimidate. The Court stated that intimidation constitutes a type of true threat, which it defined as “a speaker direct[ing] a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
Despite these Supreme Court opinions, there is still ambiguity in true threat case law, said Robert O’Neil, director of The Jefferson Center for the Protection of Free Speech. Some lower courts require that the speaker intend to threaten the victim (though not necessarily intend to carry out the threat); others look at whether a “reasonable person” would find a statement threatening regardless of whether the speaker intended it that way.
Ultimately, “it comes down to the content of the words and the context in which they were said,” explained Christina Wells, a professor at the University of Missouri School of Law.
For instance, a statement might be viewed as more of a threat when it’s made in person rather than during a long-distance phone call or over the Internet, or when it’s addressed to a specific person rather than to a general audience. In fact, those kinds of considerations — along with Turner’s past history as an FBI informant, which allowed the defense to argue that Turner had been betrayed by the government that encouraged his heated rhetoric — may explain the different outcomes in the Turner and White cases. Turner’s rants against the judges were confined to his website, whereas White also vilified and harassed his targets directly through personal E-mails, phone calls and mailings. “Once someone gets contacted, you’ve really invaded someone’s personal space, and all of these people were reasonably frightened for their safety,” Wells said. “The more specific and the more personal statements are, the easier it is for a judge or jury to say, ‘You don’t get to do that.’ White really went after these people individually, and that’s where I think the difference is. I can’t see this getting overturned on appeal, quite frankly.”
On the other hand, Wells said, the newness of the Internet affects how people may perceive threats. Though anonymous threats aren’t unique to the Web, she said, “The medium really seems to scare people. It may be because the anonymity seems so mysterious and untraceable — and it can be. It may also be that you have so little sense of whether the threat is real; is the person nearby or across the world? It can be very disorienting.”
In addition, the Internet is unique in the way it allows users to propagate information, Wells said. For instance, personal data that’s posted online is capable of reaching a larger audience and therefore may feel more threatening to the victim, who doesn’t know if a reader will decide to take action. “It’s the lack of control and the wide dissemination of the information that changes the perception of the threatening nature,” she said. “It seems somehow more threatening to people than a person simply holding a sign on a street corner with personal information. I’m not sure that the fact that the Internet is involved will actually change threat analysis in any given case, but it does explain why people argue that the Internet might be a game changer with threat analysis.”
Some free speech experts say that the fact that White and Turner made many of their statements online may not matter to the court one way or the other. “Internet speech is really no different than any other kind of speech,” Rosenthal said. “The courts have tried to adopt an approach that is medium-neutral. The First Amendment rules don’t change based on the medium that is used to engage in the communication, so your First Amendment rights shouldn’t change.”
Among the first cases to address Internet speech was Planned Parenthood of Columbia/Willamette Inc. v. American Coalition of Life Activists, a civil lawsuit brought by Planned Parenthood and several abortion doctors against some of the nations most hard-line anti-abortion activists and groups. A central issue in the suit was the legality of the “Nuremberg Files,” an online listing of abortion providers and other supporters of abortion rights, with lines through the names of those who’d been murdered and the names of those who’d been wounded in gray. There were no explicit calls to violence on the website, but a federal jury decided in 1999 that the list constituted a true threat and awarded $107 million to the plaintiffs. The verdict was overturned by a panel of the 9th Circuit Court of Appeals, but later affirmed by the full court. “The decision held that a reasonable jury could find Internet speech to be threatening — and thus unprotected by the First Amendment — based on the events and facts surrounding the defendant’s speech together with its express language,” said Helen Norton, a professor at the University of Colorado Law School.
Like the Nuremberg Files, the Turner and White cases also could have an indelible impact on true-threat jurisprudence, said David Hudson, a scholar at Vanderbilt University’s First Amendment Center. “True threat law is very muddled and lower courts don’t apply the same legal tests to determine what exactly is a true threat,” he wrote in an E-mail. “I think these cases — if they go up in the court system — have the potential to be precedent setting.”