Appellate Court overturns Judge Adelman’s dismissal of charge

Court document – “Although First Amendment speech protections are far-reaching, there are limits… …So, whether or not the First Amendment protects White’s right to post personal information about Juror A first turns on his intent in posting that information. If White’s intent in posting Juror A’s personal information was to request that one of his readers harm Juror A, then the crime of solicitation would be complete. No act needed to follow, and no harm needed to befall Juror A. If, on the other hand, White’s intent was to make a political point about sexual orientation or to facilitate opportunities for other people to make such views known to Juror A, then he would not be guilty of solicitation because he did not have the requisite intent required for the crime. White argues that NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), stands for the proposition that the only permissible view of his posting is to see it as a constitutionally protected expression and subject to the Brandenburg test. In Claiborne, black citizens of Claiborne County, Mississippi, sent a letter to white merchants with a list of particularized demands for racial equality and integration. After receiving an unsatisfactory response, they began a boycott that lasted years. Several of the white merchants sued members of the boycott to recover losses and enjoin further boycott activity, and won. The Mississippi Supreme Court upheld liability as to 92 participants by finding that members had agreed to use force, violence and threats to ensure compliance with the boycott, but the Supreme Court reversed, holding that an individual could not be held liable for his mere association with an organization whose members engage in illegal acts. Id. at 920. Claiborne primarily focused on the constitutionality of group-based liability, but it also concluded that Charles Evers, the field secretary of the NAACP and chief proponent of the boycott at the time, could not be held liable based on his “emotionally charged rhetoric.” Id. at 928. In speeches given before and during the boycott, Evers stated that there would be “discipline” coming to those who did not participate in the boycott, and that any “uncle toms” would “have their necks broken.” Id. at 900 n.28. …White’s argument boils down to this: his posting was not a solicitation and because it is not a solicitation, it is speech deserving of First Amendment protection. The government sees the posting in the opposite light: the posting and website constitute a solicitation and as such, fall outside the parameters of First Amendment protection…”

From the SPLC blog, July 23, 2009 [Bill White] had been scheduled for trial in Chicago next month, but U.S. District Judge Lynn Adelman this week dismissed the indictment charging White with soliciting harm against the juror… “The posting of personal information about an individual involved in a judicial proceeding, even under circumstances that are intimidating or unsettling, cannot, absent a true threat or an incitement to imminent lawless action, be criminalized consistent with the First Amendment,” wrote Adelman in the 35-page decision.

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