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Safety vs. free speech

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In her 15 years on both the state and federal benches, Judge Jane Magnus-Stinson has had only one time when she’s feared for her safety inside her courtroom.

That was when a criminal defendant threatened and charged at her after the then-Marion Superior judge had just denied that he be released on his own recognizance.

“Fortunately, the court line officers moved immediately and subdued him somewhat peacefully,” said the judge, who left the state bench to become a federal magistrate three years ago and is now a judge in the U.S. District Court, Southern District of Indiana. “But the part that scared me most of all was when he took off, and his lawyer ran to the opposite end of the courtroom … You wonder what might happen.”

That is the concern for any judge who faces danger regularly from unhappy litigants and wonders whether the next written or spoken threat could be the one that means real-life peril. You never know.

magnus-stinson-jane-mug Magnus-Stinson

With that uncertainty, a federal case out of Brooklyn takes on an important message in how judicial safety intersects with someone’s free speech rights. Three 7th Circuit Court of Appeals judges – Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer – say they felt threatened when a New York blogger wrote online that the trio should be killed for their June 2009 decision that upheld a Chicago gun ban on grounds that the Second Amendment didn’t apply to the states.

Specifically, blogger Hal Turner read the ruling and then criticized the judges, saying they were “traitors” and “tyrants.” He also wrote that the reason so many judges ignore the U.S. Constitution is because “… they have not, in our lifetime, faced REAL free men willing to walk up to them and kill them for their defiance and disobedience. Let me be the first to say this plainly, these judges deserve to be killed. Their blood will replenish the tree of liberty; a small price to pay to assure freedom for millions.”

The U.S. Attorney in Chicago argued that the online posts amount to threats, that Turner saying that the judges “deserve” to be killed is a threat to actually go kill them. Turner argued that is his opinion, which is protected by the First Amendment.

His first two trials – in December 2009 and in March 2010 – ended in mistrials after the juries couldn’t reach a decision. A third trial began Aug. 9 and continued that entire week.

Turner testified that his comments were no more than political hyperbole and protected speech. He also testified that it was not a call for action against the judges, who were not harmed and had previously testified they hadn’t increased their security because of the comments.

But the prosecution worked to show Turner’s comments – combined with the posting of the judges’ office addresses, photo of the building where they worked, and a map of the area – amounted to an attempt to motivate an attempt to harm the judges and provide the information to facilitate that.

Posner-Richard-mug Posner

The judges testified that that they took his postings to be threat on their lives but that they hadn’t requested additional security at any point because of them.

Turner faces up to 10 years in prison; a jury found him guilty Aug. 13 of threatening to kill or assault the judges.

To Indianapolis-based First Amend-ment attorney Dan Byron, the case doesn’t present much question that Turner’s conduct was over the line.

“Normally, you can have some great defenses on the First Amendment, and caselaw has upheld laws on strong and outrageous speech against those running for office … even judges,” he said. “But there are limits, and this is a different situation. Just like you can’t yell ‘fire’ in a crowded theater, caselaw is very clear that you can’t advocate the killing of a person.”

Without any connection to the case or particular knowledge of the Turner case, Byron said he views this as a clear example of someone going too far. Posting the judges’ addresses and location photos of where they work shows the intent, he said.

In the greater context of judicial safety, he understands the potential concern if the jury wasn’t able to determine this kind of conduct was over the line and might be permissible under the First Amendment.

“This is a pretty scary thing, and in my opinion it goes beyond the bounds of free speech,” Byron said.

But that case aside, Indiana judges say the legal community and court system are still on edge and trying to stay more mindful of safety following a 2005 shooting of an Atlanta judge and another that year in Chicago, where an unhappy litigant broke into the home of Northern District of Illinois Judge Joan Lefkow, lurked in the basement, and shot her husband and mother before committing suicide. Threats against federal judges hit record-setting paces following that, and many turned more attention to the lapses in security inside and outside a courthouse.

Easterbrook-Frank-mug Easterbrook

The U.S. Marshal’s Service reports that thousands of judges have installed security systems at their homes in recent years and a majority in Indiana have opted for that, while the office nationally investigated nearly 1,400 threats and inappropriate communications against judges during fiscal year 2009.

Judge Magnus-Stinson said she feels safe in the federal courthouse in downtown Indianapolis. She met with the Southern District’s newly confirmed marshal, Kerry Forestal, shortly after her own judicial confirmation and voiced her appreciation for the level of safety in the courts. She also suggested that he look at the multiple courtrooms and explore the placement of marshals in each one, and that he do reviews on escape prevention and judicial safety overall.

That time Judge Magnus-Stinson faced danger while on the bench came in 2003 in the case of State of Indiana v. Schroeder, No. 02189466. That defendant had a long history of mental-health issues, and when she issued a decision not to release him on his own recognizance, he came toward the bench and charged at her. The bailiff protected her, and she ultimately requested personal protection from the sheriff’s office after that and recused herself from the case.

Aside from that, she has received other threats from time to time. She noted one letter that referenced her children; the prosecutor sought stalking charges and obtained convictions on that matter.

“We are always keeping up with tools and trainings on how to manage our safety,” she said. “That’s indicative of the level of priority that our system places on safety. That’s something you always have to be vigilant about, keep your guard up and be responsive to whatever happens.”•

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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