A federal appeals court has ruled that a lower court should not have dismissed a charge that avowed Virginia white supremacist, William White, made postings on his web site urging others to harm a juror.

In 2008, White published the name, photograph, home address and phone number of a juror on his site in an entry entitled “The Juror Who Convicted Matt Hale.” The juror had been foreman of a jury that convicted another white supremacist, Matthew Hale, of soliciting the murder of a federal judge.

White had earlier written on his website that “everyone associated with the Matt Hale trial has deserved assassination for a long time.”

In dismissing the charge last July, U.S. District Court Judge Lynn Adelman noted that White broke no laws when he dug up the publicly available contact information for the juror and posted it to overthrow.com.  Adelman further stated that:

“An intimidating context alone does not remove the protection of the First Amendment.”

Where do we draw the line between hubris/intimidation and true threat?   In these types of cases, context is king and intent is queen.  While the the linchpin here seems to be the posting of the address in conjunction with the other posts, it should be noted that the information was publicly available.  It however, is all part of context.  White was not some flaky loner nut case.  He was an avowed white supremacist.  He had a following.  Does this type of context take it beyond intimidation into the world of imminent incitement to violence against the juror? While I have misgivings about whether these facts fall outside the 1st Amendment,  it seems clear that if you you post addresses, even publicly available,  in conjunction with even vague threats, it will be looked at in a more critical light even if the threats in themselves would be protected.  What also seems clear is that there is no bright line standard for these types of cases.  It’s all about context.

An interesting side note is that one of the appellate judges in this case,  Richard Posner recently testified as a witness in the case against Neo-Nazi radio shock jock Hal Turner who was charged with encouraging his readers to murder Posner and two other federal judges in retaliation for upholding the Chicago handgun ban which was recently struck down by the Supreme Court. Did that case have any influence on the decision here?  In the Turner case, Posner and the other judges testified that they felt threatened by Turner’s posts.  Posts that were not much different in tone and if anything more explicitly threatening than White’s posts. That case has resulted in two mistrials

The battle to confirm Elena Kagan as a member of the Supreme Court begins.  There has been a lot written on her free speech views but very little content of hers to glean from. I will throw in my 1/2 cent.

At a 1993 conference at the University of Chicago Law School she spoke on the benefits of regulating certain “classes” of speech, specifically referring to pornography and hate speech.   The video of the speech was reviewed by Politico. She stated:

“those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

She further stated:

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence”

While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about  a categorical balancing of the costs and “value” inherent in certain speech.  This takes us into a legal form of “social engineering” that has no place on the court.

If speech leads to imminent lawless action or fits a few other very narrow categories  we already can regulate it and we do. Even these types of laws, however, have been subject to moral flexibility. The use of child pornography laws to prosecute sexting is an example.  What about hate speech? Who sets the bar?   Are we going to criminalize Holocaust Denial?  That’s low value speech to me.  Why not?  If she gets hers, I want mine.  It’s ad hoc right?   What about inflammatory political speech?   We tried that once. It was called Sedition. Didn’t work out well.  Certainly not for those who went to prison for criticizing the government.

I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.

Is there low value speech?  I agree with Kagan that there is.  That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it.  There is already enough subjectivity to go around without opening up a Pandora’s Box of  moral interpretation.

In 1978, a Jewish lawyer named David Goldberger defended the rights of American Nazis to march through the streets of Skokie, Ill.  Skokie was and is home to thousands of Holocaust survivors.

A Jew defending Nazis?  Why?  Not only did he and the ACLU defend the Nazis, he won.  The Seventh Circuit Court of Appeals upheld the right of the National Socialist Party of America to march . The Supreme Court refused to hear the appeal, validating the developing national policy that even the most unpopular of speech in the most unpopular of circumstances merited First Amendment protection.

What Professor Goldberg knew and defended is what many in this country do not realize, which is that the United States of America stands alone in its unbridled protection of free speech which includes the most unpopular and the vilest hate speech.  You would be hard pressed to find any other country that does not criminalize hate speech in some form, including countries we would consider “free” by our standards.

How a particular country views hate speech depends on its history and social norms that are each distinct and unique.  The United States is no exception.   Each country also defines hate speech according to its own values. What might get you a slap on the wrist in one country may result in stiff prison sentences in another.  On that note it has been interesting to follow what has been going on in Kenya.  They have been engaged in massive crackdown under their hate speech laws.  Many there view  hate speech as an affront to all social norms and values.  The view was stated succinctly in an article entitled: “Purveyors Of Hate Speech Are Kenya’s Enemies”

“So, why is it so hard for some media houses to spot the phenomenon, recognise(sic) it for the malignancy and threat to civilised(sic) society that it is, isolate it and only report or comment on it in the most circumspect manner, the way profanities are rendered in print in polite society?”

It goes on to state:

“Hate speech is the precursor of hate action and the herald of attempts at, or actual, genocide”.

How do these opinions and philosophies translate to the almost absolute freedom we have in the United States to spew hatred including racial epitaphs and general intolerance of those we do not agree with, pray with or look like.  Not very well.  We can try to regulate violent actions but we simply can not universalize a moral compass where speech is concerned.  It is an impossibility where the ability to engage in unpopular speech is so tightly interwoven into the inception and growth of the United States as a nation.  It is not that we have not sporadically tried to do so.   The Supreme Court has not always been sympathetic to free speech.

What is unfortunate is that the freedoms we enjoy today to belly up to extremes has resulted in a lack of meaning to the rhetoric. Hate speech with meaning is not always hate speech. It is the backbone of government accountability.  In the 21st Century however ,hate speech as a term of battle has been thrown around so freely that we simply shrug it off as pundit putridity.  Words like Sedition, Insurrection, Treason and Terrorism have become watered down to the extent that they no longer emotionally register.  They have become nothing more than terms of art expected and shrugged off.  What we are left with is a lot of doggies barking about nothing in-particular, trying to see who can bark the loudest.  The cure is not to muzzle the dogs.  It is to teach our children not to feed the animals. That is where the freedom for the thought that we hate is unleashed.  That is where  battle against hate speech begins.

Atlas Shrugs is a far right hate site run by Pamela Geller.  It is a site that promotes ludicrous conspiracy theories as well as ethnic and religious intolerance. While she is not the only site that panders to bigotry, stereotypes and fear, the scope of her religious and ethnic hatred stands alone in the the right wing Blogosphere.  Geller goes far beyond legitimate criticism of Radical Islam and the like.  She panders the worst of Islamophobia  as well as the worst traits of humanity.  It is therefore refreshing to see the online payment site, PayPal stake a stand against hate and “shit-can” her as a user of their service for violating their rules against hate speech.  She of course does not see it that way. She calls her vile “the truth“  Maybe it’s the truth if you are from Mars although I believe even Martians would find her rhetoric despicable.  Of course her supporters are already lining up in defense, in the true tradition of her site,  claiming some great establishment or government conspiracy to shut her down.

If it is possible to defend Geller in a tongue and cheek arena, we can try to find the humor in her hate-filled insanity.  Her posts are often  so nonsensical, rambling and filled with conspiracy blather you need a Star Trek Universal Wacko Translator just to read them.  If not for the terrible hate speech , one may be more inclined to just write her off as a laughable nut.  Unfortunately she is a laughable nut with followers.  Venom such as hers, especially against Muslims and other ethnic minorities spreads out like a spider web in other blogs, capturing like minded readers while virally spreading the message of hatred.  Kudos to Paypal for taking a stand and extricating themselves from Pamela Geller’s web of hate.