By Steven J. J. Weisman
BOSTON — The recent decision of Milwaukee County District Attorney John Chisholm to charge Timothy Demeuse merely with disorderly conduct with regard to Demeuse’s Facebook posting about talk radio host Vicki McKenna has many people, including Milwaukee County Sheriff David Clarke, upset.
The Facebook posting read “Here’s your real ‘expletive’ death threat ‘expletive.’ Come and get me. I don’t even own a gun. I can make as many threats as I want. I hope someone kills you. I am going to shoot you in the face and rape your dead corpse.”
According to the District Attorney the posting did not qualify for more serious criminal charges. According to Chisholm, “The people we talked to, his circle of friends, said they did not take it as a true threat.”
There often is a very fine line between protected free speech even if it is inflammatory and criminal threats of imminent violence. In its landmark case of Brandenburg v. Ohio in 1969 the Supreme Court ruled that inflammatory speech cannot be punished unless it is likely to incite imminent violence. In that case, the Supreme Court ruled that an Ohio law that prohibited merely advocating violence was unconstitutional. But can such restraint result in tragic circumstances? Is that the price of the First Amendment? It often would appear so.
However, in 2010 blogger Hal Turner was sentenced to 33 months in prison for his posting in response to the ruling of 7th Circuit Court of Appeals judges, Frank Easterbook, Richard Posner and William Bauer’s upholding a law banning handguns in Chicago in which he wrote, “Let me be the first to say this plainly. These judges deserve to be killed.” He went on to quote Thomas Jefferson that, “The tree of liberty must be replenished from time to time with the blood of tyrants and patriots.” Turner then added his own words, “It is time to replenish the tree.” It is perhaps noteworthy that the Jefferson quote was on a t-shirt that Oklahoma City bomber Timothy McVeigh was wearing when he was arrested. Turner also went on to write, “These judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.”
According to his lawyer, “He gave an opinion. He did not say go out and kill. This is political hyperbole, nothing more.” Perhaps if his words had stood alone, they might have come under the wide protective umbrella of the First Amendment, however, what distinguished Turner’s rant was that he also provided information on his blog about where the offices of the particular judges were and where the anti-truck bomb barriers were located at the building.
In his defense, Turner said at the time of his arrest that he meant no harm. The jury disagreed.
Ultimately, the law is not a paragon of clarity as to where the line between free speech and opinion lay and where criminal threats are found. And perhaps that is a good thing for it leaves room for the facts to be determinative in particular situations, however, it also leaves us with a vague standard to guide us.
Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine. He can be e-mailed at: firstname.lastname@example.org.