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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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