401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971)
In 2008 defendant William White, leader of the American National Socialist Workers Party, operated the website Overthrow.com.1 On September 11, 2008, White posted an article titled "Hale Seeks To Have Sentence Overturned" with the sub-headline "Gay Jewish Anti-Racist Led Jury."2
The post included a photograph of Mark Hoffman, who had served as foreperson on the jury that convicted Matthew Hale in 2004, along with Hoffman's date of birth, address at 6915 Hamilton #A Chicago IL 60645, cell phone number, home phone number, and office number, and described Hoffman as living with his "gay black lover" and cat "homeboy."3 The posts appeared the same day a Chicago Sun-Times article discussed Hale's post-conviction motion challenging Hoffman's jury service on grounds including Hoffman's sexual orientation and race of his partner.4 White posted a virtually identical version on the blog section of the site and, after Northwestern University removed Hoffman's photo, posted an update the next day noting the block and repeating the same personal information.5 The site at the time also displayed links to other articles including one titled "Kill Richard Warman" and a magazine cover image showing crosshairs over Barack Obama's head titled "Kill This Nigger?"6
Hoffman received a harassing phone call from a Virginia number on September 11, 2008, asking about his jury service, followed by text messages containing offensive content.7 Hoffman contacted Northwestern security and FBI Agent Sara Lopez.8 FBI agents later executed search warrants at properties associated with White in Roanoke, Virginia, seizing the server used to run Overthrow.com and confirming through forensic analysis that White created the Hoffman posts.9
The government charged White with one count of violating 18 U.S.C. § 373 by soliciting or endeavoring to persuade another person to injure Hoffman based on his jury service in the Hale case.10 A prior district judge dismissed the superseding indictment, the Seventh Circuit reversed and remanded for trial, and an anonymous jury returned a guilty verdict.11 White moved for judgment of acquittal under Fed. R. Crim. P. 29.12
At trial the evidence revealed that all of the information in the posts was in the public domain.13 Former ANSWP members Philip Anderson and Michael Burks testified about the organization's structure, conference calls, and their interactions with White, including White's post-arrest instructions to Anderson to contact other white supremacists to determine whether anyone planned to harm Hoffman.14 The government introduced dozens of prior Overthrow.com posts in which White had published addresses and expressed violent wishes toward other individuals.15
Whether the evidence presented at trial was sufficient to prove that defendant William White's posts on Overthrow.com constituted a solicitation to commit a violent federal crime against Mark Hoffman?16
Under 18 U.S.C. § 373, a solicitation requires proof that the defendant solicited, commanded, induced or otherwise endeavored to persuade another person to commit a violent federal crime. Whether a statement constitutes a solicitation is judged by an objective standard under which a reasonable person familiar with the context would understand the statement as a serious expression that another person commit a violent felony.17
No. The Hoffman posts disclosed only publicly available information drawn from Hoffman's Northwestern bio and court records and appeared in the context of reporting on Hale's post-conviction motion. The posts contained no express or implicit call for harm to Hoffman. Other posts introduced by the government were not contemporaneous with the Hoffman posts and did not transform them into a solicitation because no member of the target audience read the Hoffman posts as a request for violence.18
The evidence was insufficient to prove that White's posts constituted a solicitation to commit a violent federal crime against Hoffman.19
Whether the evidence presented at trial was sufficient to prove that White intended for another person to commit a violent federal crime against Hoffman under circumstances strongly corroborative of that intent?20
Under 18 U.S.C. § 373, the government must prove with strongly corroborative circumstances that the defendant intended that another person commit a violent federal crime. Relevant corroborating factors include offers of payment, repeated solicitations, awareness that the person solicited had committed similar offenses, and preparations for the offense.21
No. The government presented no evidence that White offered payment, repeatedly solicited the offense, believed the person solicited had committed similar offenses, or made preparations for an attack on Hoffman.22 White's post-arrest instructions to Anderson to determine whether anyone planned to harm Hoffman and to stop them are not strongly corroborative of intent at the time of the posts.23 This is because the crime is complete once the words are spoken with the requisite intent.24
The evidence was insufficient to prove that White intended for another person to commit a violent federal crime against Hoffman under circumstances strongly corroborative of that intent.25
Whether White's posts about Hoffman were protected by the First Amendment?26
The First Amendment protects speech unless both the intent of the speaker and the tendency of his words was to produce or incite an imminent lawless act that is likely to occur, as set forth in Brandenburg v. Ohio. Knowledge or belief that speech might cause others to act does not remove the speech from protection unless it is directed to inciting imminent lawless action and is likely to produce such action.27
Yes. The Hoffman posts were not directed to inciting or producing imminent lawless action because they did not solicit, command, request or even suggest that anyone harm Hoffman. Disclosure of publicly available personal information about a juror in the context of criticism of the criminal justice system remains protected speech even if it may alarm or expose the identified person to unwanted attention.28
White's posts about Hoffman were protected by the First Amendment.29