7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror

(cross posted at the Citizen Media Law Project)
An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).


According to prosecutors, William White's overthrow.com site (archived here) featured racist and anti-Semitic articles, and promoted the American National Socialist Workers Party, which billed itself as "America's only organization advocating for the interests of the white working class."

Among the topics discussed on overthrow.com was the trial of leader of the white supremacist organization World Church of the Creator Matt Hale, who was convicted in 2005 and received a 40-year prison sentence for soliciting the murder of a federal judge in 2003.

The judge, U.S. District Judge Joan Lefkow, presided over a trademark case involving the name of the church that Hale purported to lead.  While Lefkow actually initially granted summary judgment to Hale's group (TE-TA-MA Truth Foundation — Family of URI, Inc. v. World Church of the Creator, 2002 WL 126103, 2002 U.S.Dist. LEXIS 1478 (N.D.Ill. Jan. 31, 2002)), she was reversed by the 7th Circuit (Te-Ta-Ma Truth Foundation Family of Uri Inc v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002), cert. denied, 537 U.S. 1111 (2003)), and then followed the appeals court's remand instructions ordering judgment against Hale's group. (Lefkow's husband and mother were killed in 2005 by a man whose medical malpractice lawsuit -- unrelated to the Hale trademark case -- the judge had dismissed.  Lefkow was also threatened by a New Jersey blogger over the Hale case; federal and state cases are pending against that blogger for other threats.)

On September 11, 2008, a posting on the home page of overthrow.com titled “The Juror Who Convicted Matt Hale” revealed the identity; home address; and home, work and cell phone numbers of the jury foreperson in the Hale case, along with the name of the juror's significant other and the juror's cat. The site also displayed (through a link) a photograph of the juror; when the site hosting the photo removed it, the following day overthrow.com posted the picture on its own server.

A federal grand jury indicted White on October 21, 2008, on one count of soliciting a crime of violence, in violation of 18 U.S.C. § 373, and on February 10, 2009 returned a superseding indictment on the same charge. White moved to dismiss both indictments, claiming that his article was protected under the First Amendment.

Judge Lynn Adelman of the Eastern District of Wisconsin -- presiding over the case after White moved for recusal of judges from the Northern District of Illinois -- granted White's dismissal motion in a July 21, 2009 order.

Defendant’s posts regarding Juror A do not expressly solicit or endeavor to persuade another person to harm Juror A. Rather, they disclose personal information about Juror A and comment on his/her sexual orientation and attitude toward race. Although the posts may be reasonably read as criticizing Juror A’s vote to convict Hale, nowhere in them does defendant expressly advocate that Juror A be harmed.
Scrutiny and criticism of people involved in the investigation and prosecution of crimes is protected by the First Amendment.

U.S. v. White, Crim No. 08-851 (N.D. Ill. July 21, 2009), slip op. at 13-14.

The government appealed the dismissal to the Seventh Circuit, which reversed.  The appeals court held that the superseding indictment was sufficient to allege violation of 18 U.S.C. § 373, and that the potential First Amendment concern in the case "is addressed by the requirement of proof beyond reasonable doubt at trial, not by a dismissal at the indictment stage."  U.S. v. White, No. 09-2916 (7th Cir. 2010), slip op. at 8.

[T]he First Amendment may still have a role to play at trial. Based on the full factual record, the court may decide to instruct the jury on the distinction between solicitation and advocacy, and the legal requirements imposed by the First Amendment.... After the prosecution presents its case, the court may decide that a reasonable juror could not conclude that White’s intent was for harm to befall Juror A, and not merely electronic or verbal harassment. But, this is not a question to be decided now. We have no idea what evidence or testimony will be produced at trial.... The question of White’s intent and the inferences that can be drawn from the facts are for a jury to decide, as the indictment is adequate to charge the crime of solicitation. The indictment is legally sufficient and should not have been dismissed.

U.S. v. White, No. 09-2916 (7th Cir. 2010), slip op. at 13-14.

White's attorney said that he would seek en banc review of the decision by the full Seventh Circuit.