United States v. White (updated) [1]

The United States indicted William White, webmaster of the white-supremacy website Overthrow.com, alleging that he solicited [2] others to harm [3] "Juror A," the foreperson of the jury that convicted Matt Hale, another white supremacist, of soliciting the murder of a federal judge in 2003.

The indictment [4] alleged that White targeted Juror A in an article posted to the Overthrow.com front page entitled "The Juror Who Convicted Matt Hale."  The post allegedly read:

"Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale.  Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number]. . . ."

The government argued that White was "aware that individuals associated with the white supremacist movement, who were the target audience of 'Overthrow.com,' at times engaged in acts of violence directed at non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race."  (Indictment [4] ¶ 5a.)  In order to corroborate the claim that White intended the post to incite violence against Juror A, the indictment also references previous posts by White in which he published the addresses of other white supremacist "targets," often with commentary enticing his readers to kill or otherwise harm these individuals.  (Indictment ¶¶ 5b-5e.)

A superseding indictment [5], filed on February 10, 2009, included more examples of previous Overthrow.com posts that advocated violence against white supremacist "targets."  White moved to dismiss [6] both [7] indictments, claiming that his article represented protected speech under the First Amendment and did not constitute a true threat.  Claiming bias, White also moved for recusal of all judges from the Northern District of Illinois.  Since this motion was unopposed, Judge Hibbler recused himself and was replaced by Judge Lynn Adelman of the Eastern District of Wisconsin.

In her July 21, 2009 order, Judge Adelman granted [8] White's motion to dismiss, finding that his speech was protected under the First Amendment.  Specifically, she noted that the posts "do not expressly solicit or endeavor to persuade another person to harm Juror A. . . . nowhere in them does defendant expressly advocate that Juror A be harmed."  Analyzing prior case law, she goes on to state that "the cases relating to disclosure of personal information, even under threatening or intimidating circumstances, uniformly support the proposition that defendant's speech is protected."

The government has appealed the decision to the Seventh Circuit Court of Appeals.

UPDATE:

On June 28, 2010 the Court of Appeals for the Seventh Circuit reversed the dismissal of an indictment against White, finding that the indictment was legally sufficient and the First Amendment issue is properly addressed by the requirement of proof beyond a reasonable doubt at trial, not by a dismissal of the indictment.

Since criminal solicitation is an inchoate crime, the act of asking another to commit a crime is the punishable act. The crime is complete once the words are spoken with the required intent. Whether the First Amendment protects White's right to post personal information turns on his intent in posting that information. If the intent was to request someone to harm the juror, then the crime of solicitation is complete. The Court of Appeals ruled that this is an inquiry into the facts and the inferences that may be drawn from the facts regarding White's intent, and is a question for the jury.