Those damn gay anti-racist jurors! (publicizing juror names held legal)

Great Debates
1

From Eugene Volokh’s blog:

Matthew Hale, a white supremacist leader, was convicted of soliciting for the murder of a federal judge who presided over an earlier trial involving Hale’s organization. Hale was sentenced to 20 years for his murderous designs on the judge. He then published a note on his website about the jury foreperson, titled “The Juror Who Convicted Matt Hale:”

A subsequent post apparently published a photo of the juror as well. Neither post said anything specific about harming Juror A, but the website it was published on was a white supremacy website, and because white supremacists are known for the use of violence against targets of their dislike, Hale was indicted, charged with violating 18 USC § 373, which prohibits harming or attempting to harm a juror based on his exercise of jury service.

This indictment has now been dismissed.

The opinion dismissing the indictment discusses First Amendment law in some detail, including a case called NAACP v. Claiborne Hardware. In Claiborne, the Supreme Court considered a boycott by black citizens of white-owned businesses, with “enforcers,” or “black hats” stationed outside the white-owned businesses noting the names of blacks who violated the boycott. These names were read at meetings of the Claiborne County NAACP and at church services, and published them in a paper entitled the “Black Times” as branded as traitors to the black cause. The boycott leader, Charles Evers, could not be prosecuted, said the Court, despite his statements that “blacks who traded with white merchants would be answerable to him,” that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people,” and “we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

I, like the blog author, find it rather ironic that the main principle of law now protecting Hale the white supremacist was developed as a result of black civil rights work.

For debate: did the court get it right? Or were they wrong in Claiborne? (I assume no one would take the position that they were right ion Claiborne but wrong here, but who knows…)

2

I like the use of “anti-racist” as an epithet.

Are jurors names usually public? If so, I can’t really justify convicting someone for putting public information on their website.

3

How did he find the juror’s name, date of birth, address, workplace and so on? Aren’t the jury details supposed to be sealed?

Assuming there was no nefarious conduct in obtaining the information, I can’t see how they could convict him.

I do see how the defendant in Claiborne could (and should) have been convicted.

4

Both parties know who the jurors are. At least I know it’s that way in a federal civil trial. And while you are not allowed to contact them during the trial, you can afterwards.

5

Yes, but this was a federal criminal trial, where the jurors’ identities are somewhat sensitive for obvious reasons.

6

This goes way beyond “knowing who the jurors are” if he knew about the man’s cell phone #, lover and cat.

7

I’ll take that challenge! Well, not really, but I think there are a few things distinguishing this from Clairborne. Two things, that, in my opinion at least, make the Clairborne lawsuit weak are, first of all, it was against the entire NAACP instead of just Charles Evers, who had made the speech. Secondly, the party that brought suit was the Clairborne Merchants Association, who claimed that the speech cowed black shoppers and cost them business. The case would have been must stronger had it been brought by some shopper whose “damn neck” had been broken.

Also, as the decision said, the Evers speech was part of a “massive and prolonged effort to change the social, political, and economic structure of a local environment” which “cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.” The merchants therefore had “[t]he burden of demonstrating that [violence] colored the entire collective effort” and not just give “evidence that violence occurred or even that violence contributed to the success of the boycott.”

All this distinguishes it from the Hale case. The charge was against Hale himself, the initiator of the action, and was not part of some legal prolonged effort. This isn’t the case of an individual making an intemperate speech as part of a legal process to constitutionally protest. This is a case of a convicted felon communicating the name and personal information of the juror he blames for his conviction to his followers in a violent organization; an organization who’s raison d’etre is violence, with the intent of subverting justice. I don’t see that any distinction should be made between Hale’s action, and the action of a mob boss telling his goons the name and personal information of a juror who convicted him.

8

Bricker, I think there’s a minor error in your source’s statement of the facts. It’s not Matt Hale who published the information. (Hale’s serving federal time and I imagine his access to computers might be a bit limited.) It’s a fellow from Virginia, William White of Roanoke, Virgina: Judge tosses charge against Va. white supremacist. White’s the leader of a National Socialist group, and is facing some additional charges of uttering threats back home in Virginia.

9

So, based on the established “Right To Privacy” penumbra, can I get out of Federal jury duty on the basis that I don’t want my name, address, et al published?

10

Oops. Yes, my bad. The error is mine, not Volokh’s.

11

The right to privacy penumbra thing is really only talking about private conduct.

I don’t think you’d get away with that anyway. The courts have fairly consistently held that compulsory public service is constitutional (by not overturning the Selective Service Act).

12

Unless this is a wording I just don’t understand…

It sounds like Hale (or apparently, William White) is being tarred for guilt by association. Unless White has a specific history of violence, or made some sort of credible threat, I don’t see how this could wash as a reason for indictment.

Unless publishing jury info is against the law anyway, ISTM that there is no question that the indictment should have been dismissed. There was no threat, and no attempt to harm.

At least in Claiborne there was an actual threat.

Regards,
Shodan

13

Information you can publicly get or isn’t secured in any normal way is considered public.

This is why if I’m on a cell phone on a bus (a public place) I have no expectation of privacy and people can take my picture and record my talking on a cell phone etc. Why? Because in a public place you have no expectation of privacy.

Is a cell phone private? Perhaps, but if you are in a public place and freely say "My cell phone number is 555-5555 one could assume it is not private 'cause you freely gave such information out.

Dates of birth are common, how many times have you filled out a forum like this one. Often it asks for your date of birth? You’ve just given your DOB out. Many boards sell such information.

This is why it’s bad to give correct information out on the Internet. I have a standard fake I use for all forms on the Internt and use my correct DOB, and other identifiers for banks and such.

I can understand you wanting your priavcy but really the Internet has just made it easier to do what others could’ve done before but didn’t 'cause it was too costly or bothersome

14

The threat is implied. There is no logical nor other discernible reason for information including the name of the person’s cat to be disseminated and the venue in which it occurred is that of an organization under investigation for involvement in unlawful activities.

Honestly, do we think that this Matthew White was talking about this juror, their black, gay lover and their kitty Fluffy because he expected the white supremacists to send birthday cards and feather toys?

15

This is why we should try terrorists with Tribunals rather than juries.

The Attorneys of both sides have complete access to Juror questionnaires, which can include all that private info and more, such as names, ages and where your *children *go to school.

I think the Judge needs to look into whether or not Hale’s lawyer committed a breach here.

I also think we need to make the actual names and identifying info of Jurors secret so that only the Judge and Court employees have access to it- in certain dangerous cases. Not even the lawyers.

16

There is apparently such a thing as an anonymous jury used in organized crime cases (and I presume if it’s also considered risky, terrorist trials, though I’m a little skeptical terrorists, at least those of the Al-Queda variety, would bother going after a jury members).

17

Under the First Amendment, the default is not that a citizen has to justify speech. The government has to present evidence to justify its infringement.

Citizens of the US are still entitled to a presumption of “innocent until proven guilty”.

Regards,
Shodan

18

I agree, as a matter of First Amendment principle, with what you’ve had to say in this thread so far. And notice that we’re talking criminal law here – the parallel presumption does not hold, to the same extent (“beyond reasonable doubt”), in a civil case, where the defendant is being sued by a plaintiff – where the “preponderance of the evidence” standard is what obtains.

At the same time, I think that the legal fiction “the reasonable man” would agree with tumbleddown’s concerns as voiced in post #14 – it seems plausible to me that White’s motive in publishing the jury foreman’s personal information was a veiled incitement or invitation to retributory acts which would likely be criminal in nature.

I feel some strong discomfort that justice is not being served here, that an implicit threat is being permitted because it manages to fall just short of a bright-line standard, even though a reasonable man could infer the likelihood of retributory violence. I’d love for you, Shodan, or for Bricker or someone else to discuss what might be appropriate legal steps to prevent such retribution.

19

Wasn’t there a case/situation where an anti-abortion group published names, addresses, etc. of providers? Did it go anywhere? Was it merely a bad Law & Order episode?

20

Threats, where they are mere words and not coupled with the imminent ability to execute the threat, are not against the law. Furthermore, there is no generalized duty to protect others from harm. If I know someone has it in for you, and I am not in a special relationship of trust with you, I can freely inform your enemies of your address, your occupation, and the identities of your companions. If I got this information lawfully and do nothing else, there’s no liability for me. I am not an accomplice or a conspirator as to any criminal activity that might ensue.

It is less the free speech angle and more the law’s refusal to make us caretakers of others–even when the burdens of doing so are slight compared to the grave harm avoided–that I suspect troubles people here.