Senior United States District Judge James C Turk
Count Six of the indictment charges White with making threatening communications to Richard Warman in violation of 18 U.S.C. § 875(c).
JUDGEMENT: As to Count Six, the Court concludes that there was “no substantial evidence that would permit any rational trier of facts to find the defendant guilty,” and the Court must enter a directed verdict of acquittal as to Count Six.
P.23: Because there was no dispute as to these factual allegations, the Court must only review the findings of the jury to determine whether a reasonable recipient, familiar with the context of the charged communications, would have considered them to be a serious expression of an intent to commit an act of unlawful violence to a particular individual.
Although a court must be deferential to the conclusions of the jury, and view the evidence in the light most favorable to the prosecution, this Court must conclude that no “rational trier of fact could have found the essential elements of the crime [charged] beyond a reasonable doubt” when presented with this evidence. Jackson, 443 U.S. at 319. It is clear, when the evidence is viewed in its cumulative context, that White’s actions did not amount to a “true threat” and must, therefore, be deemed protected speech under the First Amendment.
P.23: In reaching this determination, the Court notes, first, that much of the evidence and violent language attributed to White was taken from blog postings and articles published on the internet. Contrary to the call made to Kathleen Kerr and the email to Jennifer Petsche, most of the language referring to violence against Richard Warman was not directed or communicated directly to Warman.
P.25: Under Watts, however, the widely disseminated nature of these postings has analytical significance beyond the “intent to communicate” analysis indicated above. Like in Watts, these internet postings were made for and to a group of like-minded individuals, much like the group that petitioner in Watts addressed at the anti-war protest. Accordingly, though no one knows whether the audience laughed as they did in Watts, it is an appropriate assumption that the audience of like-minded individuals would have treated these statements as “a kind of very crude offensive method of stating a political opposition” to Warman.
P.25: Additionally, the violent language on the blog postings themselves indicate no express or implied intent to perpetrate violence against Richard Warman, […]
P.26: Permitting a conviction on such evidence as presented here would eviscerate the protections that the Supreme Court has steadfastly endorsed with respect to the mere advocacy of violence and forever blur, impermissibly, the line between protected and prohibited speech.
P.27: However, when these words are considered, in the context of widely disseminated, publicly available internet postings, made to an audience of like-minded individuals, and with “a backdrop of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” Watts, 394 U.S. at 707-08, they cannot be considered a true threat. Instead, these words are merely “vehement, caustic and…unpleasantly sharp attacks on government and public officials.” Id. These assorted internet posts, even viewed in the light most favorable to the prosecution, can not be deemed sufficient evidence to prove that White intended to communicate “a serious expression of an intent to commit an act of unlawful violence” toward Richard Warman. Black, 538 U.S. at 344.
P.28: Similarly, one of the articles inside the magazine discussing Richard Warman can only be classified as gloating, in keeping with the caption over Richard Warman’s picture, “Yeah, We Beat This Prick.”13 Viewed cumulatively and in context, the entirety of the magazine can only be interpreted as White’s attempt to thumb his nose at Warman and ridicule Warman’s failed efforts to block a website run by White. Thus, the analytical magnitude of the fact that the email and magazine were directly communicated to Warman is significantly reduced.
P.31: Consequently, the government has established neither that White made a true threat, nor that he unconstitutionally incited violence. His speech and actions are, therefore, protected under the First Amendment. This Court, therefore, viewing the conclusions of the Jury under the deferential standard of Rule 29, finds that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” after considering the email or magazine sent to Richard Warman.
[Bolding added – not in original]
Judge drops 1 of 4 charges against neo-Nazi
A federal judge today dismissed one of four charges that neo-Nazi leader William A. White was convicted of in December.
"The court finds that there is no substantial evidence which would permit any rational trier of fact to find the defendant guilty," U.S. District Judge James Turk wrote in an opinion.
The jury verdict dismissed by Turk alleged that White had threatened Richard Warman, a human rights attorney from Canada who often brings civil actions against white supremacists.
White, the self-proclaimed commander of the Roanoke-based American National Socialist Workers Party, wrote on his Web site that Warman should be killed.
But unlike the other threats for which White was convicted, most of White’s comments were not communicated directly to Warman, Turk wrote in his 32-page opinion.